Citation: R v Warwick (No.91) [2020] NSWSC 75
Court: Supreme Court of New South Wales
Date: 10 February 2020
Judge(s): Garling J
Background
This decision concerns an evidentiary ruling in a complex criminal trial arising from a series of historical bombings and shootings investigated by the Joint Bomb Task Force, a body formed in 1984. The accused sought to tender running sheets compiled in May 1987 by two detectives who had interviewed a prison inmate about conversations he claimed to have had with a person alleged to be a suspect in the relevant events.
The running sheets recorded the inmate's account of what that alleged suspect told him, and also contained references to another person said to be suspected of involvement. The accused argued this material was relevant and admissible under the business records exception to the hearsay rule.
The Crown opposed the tender on relevance and hearsay grounds, arguing the contents were unreliable and, in any event, should not be admitted for the truth of the facts stated.
Legal Issues
- Whether the running sheets were admissible under the business records exception in s 69(2)(b) of the Evidence Act 1995 (NSW)
- Whether the representations recorded constituted second-hand hearsay that the exception could not cure
- Whether s 69(3)(b) of the Evidence Act 1995 excluded the exception because the documents were made in connection with an investigation relating or leading to a criminal proceeding
- Whether s 69(3)(b) applied where the original investigation was discontinued and no charges were laid until a later time
Decision
Issue 1: Second-hand hearsay and s 69(2)(b)
Garling J identified two layers of representation in the running sheets. The detectives' representations recorded what the inmate told them, and the inmate in turn reported what the alleged suspect had said. The asserted facts the accused sought to prove were the alleged suspect's own statements, about which the inmate had no personal knowledge (at [8]). This rendered that content second-hand hearsay, and the tender could not prove the truth of what the alleged suspect said, regardless of whether s 69(2)(b) otherwise applied (at [9]).
Issue 2: Application of s 69(3)(b)
Garling J held that the more fundamental obstacle was s 69(3)(b), which removes the business records exception where a representation was made in connection with an investigation relating or leading to a criminal proceeding (at [10]). The running sheets were created by detectives conducting a criminal investigation into the very events that are the subject of the current trial. The phrase "in connection with" carries wide import, and the provision does not require a criminal proceeding to have existed at the time the record was made (at [11]).
Issue 3: Effect of the discontinued investigation
The accused argued that because the original Joint Bomb Task Force investigation was terminated without any charges being laid, its records could not be caught by s 69(3)(b) when criminal proceedings were later commenced against a different person. Garling J rejected this argument. The relevant question is whether, at the time the documents were created, their purpose was to record representations relating or leading to a criminal proceeding. The identity of who is later charged, or the timing of any charge, does not alter that analysis (at [13]).
Conclusion
Because s 69(3)(b) precluded the application of s 69(2)(b), the contents of the running sheets were not admissible for the truth of the facts stated. Without that, the documents were not relevant to any issue in the trial, and the tender was rejected (at [14]).
Orders Made
- Tender of running sheets 170/238 to 170/240 is rejected.
Key Takeaways
- Under s 69(3)(b) of the Evidence Act 1995, the business records exception in s 69(2)(b) does not apply to representations made in connection with a criminal investigation, and the phrase "in connection with" is construed broadly (at [11]).
- A criminal proceeding need not have existed at the time a document was created for s 69(3)(b) to apply; it is sufficient that the document relates to a proceeding that may be initiated later (at [11]).
- The fact that the original investigation was discontinued and no charges immediately followed does not take the documents outside s 69(3)(b) where their creation was for investigative purposes relating to criminal conduct (at [13]).
- Where a document records what one person told investigators about statements made by another, the innermost layer of reported speech constitutes second-hand hearsay that the business records exception cannot render admissible to prove the truth of the underlying facts (at [8]-[9]).
- Once the contents of a document are inadmissible for the truth of the facts stated, the document may cease to be relevant to any issue in the trial, supporting rejection of the tender entirely (at [14]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594
- Lewincamp v ACP Magazines Ltd [2008] ACT SC 697
- R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562