Business Records

Question 1

Why is section 55 relevant to business records?

Answer 1

Because in the business record is not relevant to a fact in issue then its not admissible s56 evidence act

Question 2

What is section 69 of the evidenxe act?

Answer 2

Hearsay exception for business records

Question 3

What are the pre requisites for section 69 to apply?

Answer 3

S69(1) evidence act: this section applies to a DOCUMENT that either:
a)
Is or forms part of the RECORDS belonging to or kept by a person, body or organisation IN THE COURSE OF of for the purposes of the BUSINESS or
At any time formed paet of such records
AND
B) contains a prior representation made or recorded in the document IN THE COURSE of or for the purposes of th business

Question 4

What is a document?

Answer 4

Evidence Act dictionary:

A 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 havinf 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 5

What does “must form part of a record mean?”

Answer 5

ATRA v Farmers & Graziers Co Operative “a history or events in some form which is not evanescent (on the point of vanishing)

Question 6

What is meant by “in the course of or for the purposes of”

Answer 6

Re Marra Developments: 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

Question 7

What constitutes a business?

Answer 7

Business includes:
- a profession, calling, occupation, trade or undertaking
- an activity engaged in or carried on by the crown or foreign government
- an activity by person or body working inder australian constitution law or foreign law
- proceedings of a house of parliament
Whwrher for profit or not or in or out of Australia

Question 8

What is the hearsay exception for business records?

Answer 8

S69(2) evidence act: the hearsay rule doesn’t apply to the document (so far as ir 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 the informsrion directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

Question 9

Does the first hand hearsay rule apply to buskness records

Answer 9

No. Includes second hand hearsay.

Question 10

What is the effect of section 69(3) evidence act

Answer 10

The hearsay exception under s69(2) doesnt apply when prepared or obtained for the puepose of conducting or contemplation of or in connection with rbe investigatipn leading o a criminal proceeding.

This means that documents created by police ans other organisations for thw purposes of criminal proceedings (inclusing committal, sentenxe and bails) are not covered by this section.

Question 11

What is the effecr of section 69(4) evidenxe act?

Answer 11

The hearsay rule doesnt apply to evidence that tends to prove that there is no record kept by a bysiness.

Referred to as negative proof.

Allows us to use the lack 0f a record to prove no record kept

Question 12

What section allows us to tender business records?

Answer 12

S48 evidence act

Question 13

How may business record evidence be given?

Answer 13

S170(2) evidenxe act: evidence may be given by affidavit or if the evidence relates to a public document written statement.

Question 14

Who can produce a business record?

Answer 14

S171(1) evidence act:
A) a person who at the relevant time or afterwards had a position of responsibility in relation to making or keeping the document or thing or
B ) excepr in case of a fact to be proved under s63,64 or 65 Evidence Act an authorised person.

Question 15

What does the affidavit need to contain?

Answer 15

S172 evidenxe act requires an affidavit or statement to include evidenxe based on knowledge, information, or belief and must set out the source of the knowledge or information or rhe basis of the belief.

Question 16

What notice requirements are there of a parties inrenripn to produce business rexords?

Answer 16

No prescribed time. S 173 evidence acr requires a copt of the affidavit to be served a reasonable time prior to the hearing of the proceeding.

Generally accepted 28 days before as requests to call experts or witnesses must be made within 21 days of service.

Question 17

What may we do with voluminous or complex documents?

Answer 17

S50 evidenxe act allows us to Adduce evidence in the form of a summary where 2 or more documents with leave of the court.

Question 18

What if issues are raised in relation to relevance of a document?

Answer 18

S58 evidence act allows the court to examine the document to draw any inferences from.

S 183 evidenxe act allows the document to be examined to draw inferences if an objection is raised under another parr of the act

Question 19

What is the orthodox approach to business records

Answer 19

1. Get affidavirt from person to tender wirh the business records
2. Serve ir before hand
3. Call the author if required.
4. Tender document at hearing-s48 evidenxe act

Question 20

Can a document prove itself?

Answer 20

Yes. DPP v Pinn adopted ACCCv New Zealand ans over ruled decision from 1999 of national Australia bank v rusu which held that business records couldn’t prove themselves simply by beinf tendered under s48 evidenxe act.

DPP v Pinn provides a mexhanism for business records to be relied upon in the absence of an affidavit or statement from the business who supplied them. “There is no prpvision of the evidenxe act that requires that only authentic documents admitted into evidence, the requirement under the evidenxe act is relevance. If therr is a reasonable inference that the receipt of the document will rationally affect the probability of a fact in issue the matter may go to the tribunal of fact which will then determine at the end of the trial whether the document is authentoc and whether the fact is proves
Accordingly in some cases documents can provw themselves.