Business Records

Question 1

What did the case of ATRA v Farmers and Graziers Co-operative find in relation to a business record?

Answer 1

ATRA v Farmers and Graziers Co-operative

“A history of events in some form which is not evanescent” (ie: not on the form of vanishing).

“Denotes documents which truly might be regarded as the internal records kept by or for that company in respect of its business… not documents relating to its affairs by 3rd parties for the 3rd party’s own purposes”.

Question 2

Section 69 is?

Answer 2

The Hearsay exception in relation to business records.

Question 3

Can 2nd hand hearsay be admitted in relation to a business record?

Answer 3

Yes. Second hand hearsay goes in.

69(2) of the Act states that the Hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:

(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact (2nd hand).

Question 4

What does Subsection 3 of Section 69 provide?

Answer 4

69(3) states that S69(2) does not apply if the representation

(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with an Australian or overseas proceeding, or
(b) was made in connection with an investigation relating or leading to a criminal proceeding.

Question 5

What is the definition of “Criminal Proceeding” according to the Evidence Act?

Answer 5

Means a prosecution for an offence and includes:

(a) Committals for trial or sentence
(b) Bail proceedings.

But NOT prescribed taxation offences.

Question 6

What does 69(4) legislate?

Answer 6

Negative proof.

Section 69(4):
If:
(a) the occurrence of an event of a particular kind is in question, and
(b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind,
the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event.

Question 7

Section 69 clause (5) sets out the definition of “personal knowledge” as per the wording in Section 69(2). What is the definition of “personal knowledge” found at Section 69(5)?

Answer 7

“Personal knowledge”

(5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person’s knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact). (ie: first hand)

Question 8

In relation to Section 69 (being the exception to the hearsay rule for business records), what are the 2 things you need to ensure?

Answer 8

• Business records are: internal records kept by the company in respect of it’s business and
• It must be recorded (not just a conversation).

69 Exception: business records

(1) This section applies to a document that:
(a) either:
(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business, or
(ii) at any time was or formed part of such a record, and
(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

Question 9

What is the definition of a previous representation?

Answer 9

A representation made otherwise than in the course of giving evidence in the proceedings in which (the) evidence is sought to be adduced.

• It is history / a past event / it happened before this Court event.

Question 10

Where would you find the definition of “Representation” and what is the definition?

Answer 10

The definition is found in the Dictionary of the Evidence Act.

A representation can be:

(a) express or implied, whether oral or written, or
(b) inferred from conduct, or
(c) not intended by the maker to be communicated to or seen by another person, or
(d) A representation that for any reason is not communicated.

Question 11

Where would you find the definition of “Document” and what is the definition?

Answer 11

The definition of “Document” is found in the Dictionary of the Evidence Act.

“Document” means any record of information and includes:

(a) anything on which there is writing; or
(b) anything on which there are marks, figures, symbols or perforations having meaning for persons qualified to interpret them, or
(c) anything from which sounds, images, or writings can be reproduced with/without aid, or
(d) a map, plan, drawing or photograph.

Question 12

Where would you find the definition of “Business” and what is the definition?

Answer 12

The definition of “Business” is found at clause 1 of Part 2 in the Dictionary of the Evidence Act.

“Business” includes:

1) A reference in this Act to a business includes a reference to the following:
(a) a profession, calling, occupation, trade or undertaking,
(b) an activity engaged in or carried on by the Crown in any of its capacities,
(c) an activity engaged in or carried on by the government of a foreign country,
(d) an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity),
(e) the proceedings of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament,
(f) the proceedings of a legislature of a foreign country, including a House or committee (however described) of such a legislature.
(2) A reference in this Act to a business also includes a reference to:
(a) a business that is not engaged in or carried on for profit, or
(b) a business engaged in or carried on outside Australia.

Question 12

Define “Record”

Answer 12

Record is defined in “Atra v Farmers and Graziers Co-operative” -

“A history of events in some form which is not evanescent” (not vanishing).

“Denotes documents which truly might be regarded as the internal records kept by or for that company in respect of it’s business .. not documents relating to it’s affairs by third parties for the third party’s own purposes”.

Question 13

What is the hearsay exception in relation to business records and in what Section of the Evidence Act would I find it?

Answer 13

Section 69 of the Evidence Act is the Exception to the Hearsay rule regarding business records.

(1) This section applies to a document that:
(a) either:
(i) . is or forms part of the records belonging to or kept by a person, body, or organisation in the course of, or for the purposes of, a business; or
(ii) at any time was or formed part of such a record; and
(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

Question 14

What did the case of Re Marra Developments find in relation to the exception to the hearsay rule for business records?

Answer 14

“In the course of or for the purposes of” - the statement or representation must relate to the course (operations) of the business, not the personal or other matters that may happen to be disclosed within a document.

Question 15

Clause (2) of Section 69 states?

Answer 15

The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:

(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

“Personal knowledge” as per this section is not restricted to first hand hearsay - includes 2nd hand hearsay.

Question 16

Clause (3) of Section 69 states?

Answer 16

Section 69(3) states that Subsection (2) does not apply if the representation:

(a) was prepared or obtained for the purpose of conducting, or for in contemplation of or in connection with, an Australian or overseas proceeding, or
(b) was made in connection with an investigation relating or leading to a criminal proceeding.
ie: COPS event

Question 17

Can the Court exclude business records? Name 2 exclusion provisions.

Answer 17

Yes. Section 135 gives the court a general discretion to exclude or refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.

Section 137 gives the court power to exclude prejudicial evidence - a court must refuse to admit evidence if the probative value is outweighed by danger of unfair prejudice - onus lies with the defence.

Question 18

Are documents admissible in relation to admissions?

Answer 18

81 Hearsay and opinion rules: exception for admissions and related representations

(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.
(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation:
(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and
(b) to which it is reasonably necessary to refer in order to understand the admission.

Section 86 of the Act ??

Section 281 of the Criminal Procedure Act - Admissions by Suspects - In relation to strictly indictable offences, admissions must be recorded electronically unless there is a reasonable excuse.

Question 19

How can the Court accept as evidence voluminous or complex documents?

Answer 19

Section 50(1) - may adduce Evidence of the contents of two or more documents in question in the form of a summary;
(2) only if the party seeking to adduce the evidence has served the summary and give a reasonable opportunity to examine and copy

Question 20

Section 69 has two parts to it. What are they?

Answer 20

(a) is or forms part of the records belonging to or kept by a person, body or organisation in the course of or for the purposes of a business (or at any time formed par of such a record); and
(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

Question 21

Section 69(4) is the hearsay exception to business records in relation to what?

Answer 21

Negative proof.

(4) If:
(a) the occurrence of an event of a particular kind is in question, and
(b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind,
the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event.

Example: during an interview, a suspect says “I wasn’t there [at the crime] I was at the Doctor So and So’s. You attend Dr So and So’s to enquire if he was there and there is no record of him being there at that time = negative proof.

Question 22

In relation to Section 50 (Voluminous/Complex documents), S50(2)(b) states?

Answer 22

That a party has: … given each other party a reasonable opportunity to examine or copy the documents in question

Question 23

Section 170 of the EA sets out what?

Answer 23

In Section 170 there is a table that sets out that if certain provisions in the Act are relied upon (eg: s69 exception) then the persons listed in Section 171 can give that evidence via an affidavit or statement.

170 Evidence relating to certain matters
(1) Evidence of a fact that is, because of a provision of this Act referred to in the Table, to be proved in relation to a document or thing may be given by a person permitted under section 171 to give such evidence.

**if using S69, 70, 71 exceptions etc.. 170/171 comes into play.

Question 24

What did the case of Re Marra Developments find in relation to business records?

Answer 24

The case of Re Marra Developments provided a definition for
“In the course of OR for the purposes of”

“The statement or representation must relate to the course (operations) of the business, not to personal or other matters that may happen to be disclosed within a document”.