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Thursday, 9 March 1972
Page: 627

Senator BYRNE (Queensland) - This departure which is contemplated in the Bill is most important. Senator Murphy has approached its extension with some concern. The basis of Senator James McClelland's concern apparently rests on the fact that it is a new provision applied in a criminal jurisdiction. He feels that more experience should have been gained in the application of this principle in the civil jurisdiction. That may be an appropriate comment, but surely enough time has gone by to have observed the operation of it in the civil jurisdiction. As it has operated also in criminal jurisdictions in the States which were mentioned by the Attorney. General (Senator Greenwood) and has operated in England, there must be now a great volume of experience available as to how it has operated in all those places where this extended law exists.

It does not operate in all States of Australia but only in the ones mentioned by the Attorney-General. For example, it does not operate in Queensland - at least I do not think it has been applied there to criminal proceedings. I propose to cite from An outline of the Law of Evidence', second edition, by Rupert Cross and Nancy Wilkins in relation to records admissible in criminal cases under the Criminal Evidence Act 1965. The book states at page 125:

In any criminal proceedings, where direct oral evidence of a fact would be admissible, any statement made by a person in a document which is, or forms part of, a record is admissible as evidence of that fact provided the following conditions are satisfied:

1.   The record relates to any trade or business end was compiled in the course of that trade or business.

2.   The record was compiled from information directly or indirectly supplied by persons who have, or may reasonably be supposed to have, personal knowledge of the matters dealt with.

To put the matter in context I read the explanation, which states*

The Criminal Evidence Act, 1965, was passed in order to obviate the principal effects of the decision of the House of Lords in Myers v. Director of Public Prosecutions according to which motor manufacturers' records were inadmissible at common law as evidence of the numbers on cylinder blocks placed in engines bv workmen who had long since ceased to be identifiable or who have any recollection of the matter. If the workmen had been identified and proved to have been dead, the records might have been admissible as statements made by deceased persons in the course of duty.

Although its wording is, to a large extent, similar to that of the Evidence Act, 1938, set out in the previous article, the scope of the Act of 1965 is much narrower because it is confined to records kept for trade or business purposes, lt does not. like the Act of 1938, extend to statements made to solicitors or police officers by potential witnesses who have died or gone abroad, or to letters containing relevant assertions. Such statements, as distinct from records, will generally only be admissible in criminal cases as agreed statements of fact, discussed in article 49. Even then, the requisite consent is only likely to be forthcoming when the evidence is of no great importance.

The conditions of admissibility are more liberal under the Act of 1965 than under that of 1938, in three respects. First, the fact that the supplier of the information recorded was a person interested does not render the record inadmissible though it may affect the weight to be attached to the record. Secondly, the Act of 1965, unlike that of 1938, allows for the reception of records where the information is supplied indirectly to the person compiling the record. Thirdly, to be admissible under the Act of 1965, the record need not be a continuous one.

In the Act of 1965, 'document' includes any device by which information is recorded or stored. This is wider than the wording of the Act of 1938 under which document' includes simply books, maps, plans, drawings and photographs. It is doubtful whether either definition is apt to cover all computerised records. As I understand it - the Attorney-General may care to correct me on this - apparently this extension to the criminal law is not in any way apart from the discretion given as cited by the Attorney in his last comment. There is no circumscription of this as against the principle applied in the civil jurisdiction. Apparently in England there is a limitation on the information; it must be information which, as has been said, is much narrower, because it is confined to records kept for trade or business purposes. If, therefore, we are looking at the experience of this provision operating in other jurisdictions, the experience in England would be of very great moment, but if the English Act is so much narrower and confined in that area the English experience would not be particularly pertinent or compelling.

The fact that the Act has operated now for 6 years with some experience would not necessarily be a cogent fact persuading us to the adoption of a similar principle in our law. As I read it - perhaps the Attorney would be kind enough to indicate to me whether I am correct - there is no particular qualification or circumscription of this principle in its application to the criminal jurisdiction. It is as wide in the criminal jurisdiction as it is in the civil jurisdiction, unlike its English counterpart. That might well affect the attitude that could be taken in relation to this matter.

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