Criminal law: December 2015

DPP v Pinn [2015] NSWSC 1684

Apart from making it clear what courts can and cannot take into account when considering an alleged breach of an AVO, Pinn stands as a salutary warning of the consequences when practitioners press legal points beyond their reasonable limits.

As he had been charged with a domestic violence offence, the Local Court made an interim AVO against Pinn. He was subsequently charged with eight counts of breaching that AVO. One of the elements of the offence is that the accused was either served with a copy of the order, or was present in court when it was made.

On the hearing of the breach, the prosecutor tendered the interim AVO, but the accused’s representative objected on the basis that, because the accused had not signed the AVO, its provenance could not be established. In response, the prosecutor called evidence from the officer in charge that he had obtained the order from the Registry. The prosecutor also tendered the bench sheet (which recorded that the accused was in court when the order was made), to which the accused also objected. The prosecutor also eventually tendered the audio recording of court that day, and again objection was taken. The Magistrate rejected all of the AVO document, the bench sheet and the tape recording on the basis that they could only be admissible if they were business records and they were not accompanied by the appropriate affidavit establishing their authenticity.

Adamson J, in upholding the appeal (which was in any event conceded by the accused), found that the documents were relevant and admissible. The Magistrate erroneously relied on National Australia Bank v Rusu (1999) 47 NSWLR 309, in which Bryson J rejected documents which purported to be bank statements on the basis that his Honour was not persuaded to the relevant standard of their authenticity (at [42]).

Rather, ss 58 and 183 of the Evidence Act provide that if there is an issue as to admissibility, a court may consider a document or thing and draw reasonable inferences – including as to its authenticity. In some cases, documents can prove themselves, and this was such a case. In this case it was also an error for the Magistrate not to have considered the contents of the bench sheet and listened to the recording before ruling as to their admissibility (at [45]). In the particular context of the tender the Magistrate was obliged to examine the documents, and if she had done so she would have found that they were what they purported to be.

Apart from the relevance to practitioners about establishing the providence of certain documents, the other interesting observation is that the court ordered costs against the accused, and refused to issue a certificate which would have given him relief from paying. The main basis for that grant was said to be the conduct of the accused’s representative in the Local Court.