Supreme Court New South Wales Medium Neutral Citation: R v Dickson (No 14) [2014] NSWSC 1860 Hearing dates: 28 November 2014 Decision date: 28 November 2014 Before: Beech-Jones J Decision: Objections by the accused to evidence led by the Crown upheld in some respects and in some respects rejected. Catchwords: CRIMINAL LAW - objection to evidence on the basis of relevance, hearsay and prejudice. Legislation Cited: - Evidence Act 1995 (NSW), s 69 Cases Cited: - R v Dickson, R v Issakidis (No 11) [2014] NSWSC 1570 Texts Cited: -- Category: Interlocutory applications Parties: Crown (Commonwealth Prosecutor) Anthony James Dickson (Accused (12/140639)) File Number(s): 2012/140639 Publication restriction: This judgment is not for publication prior to verdict. ex tempore Judgment Re objection to particular aspects of evidence given by Ian Durrand 1Objection is taken on behalf of the accused to the Crown leading two particular aspects of the evidence of an Australian Federal Police officer, Ian Durrand. One aspect of his evidence was addressed in R v Dickson, R v Issakidis (No 11) [2014] NSWSC 1570 at [28] to [30] namely, various searches undertaken on the websites of the United Kingdom Law Society in respect of three persons, Susan Mary Williams, Susan Harper and Edward Chang. 2Notwithstanding that I addressed this matter in that judgment, objection is persisted with on the basis of relevance, hearsay and prejudice. 3The hearsay objection concerns the status of such of those documents as are the result of searches undertaken on the website of the United Kingdom Law Society. I am satisfied they are business records for the purposes of s 69 of the Evidence Act 1995 (NSW). Notwithstanding the fact that the search was conducted for the purposes of legal proceedings, it is clear that the records kept by the Law Society in the United Kingdom were not prepared for that purpose. 4Insofar as relevance and prejudice is concerned I am satisfied that the material has some probative value in relation to the existence of those three persons and their status as lawyers as asserted by Mr Dickson. 5In the task of proving a negative it is often the case that no single piece of evidence will be determinative. Often it is only upon a consideration of the totality of different sources of evidence that the tribunal of fact can find that the negative is established. In this case a contention that there were no English lawyers by those names who were involved in any transaction involving HFAC falls into that category. In my view the fact that a search of the website of the United Kingdom Law Society does not reveal any persons answering that description is capable of having some probative value. Of course there are likely to be limits in relying on searches of persons on that website, including whether they are lawyers who are admitted to practice. These limits can be identified to the jury and they should be credited with having the level of intelligence necessary to understand the limits upon searches of that nature. 6I will allow this evidence to be given. Given the limited role in respect to which this evidence is to be taken, the limited use to be relied upon by the Crown and the fact any qualifying explanation can be given means that no question of prejudice arises. 7The other area of Officer Durrand's evidence that is in issue concerns some searches that have been undertaken on the Internet archive known as the "Wayback Machine". 8This archiving facility was introduced into the case by the accused during the cross-examination of one witness in an endeavour to show the state of a particular website some time around 2009. The Crown has also invoked the archiving facility for its own purposes. Thus to this point in the trial it has been used as an evidentiary source to establish the particular state of a website at a particular time. 9However, the present context is different. In the course of his evidence the accused introduced into evidence some pages said to be a printout of a website known as "hfacharmony.com". He said that they related to an organisation referred to as "HFAC" in an earlier judgment in these proceedings (R v Dickson, R v Issakidis (No 11) at [23]). The accused stated that it was a principal but, nevertheless, undisclosed player in a number of events the subject of the Crown case. 10During the course of the accused's cross-examination the Crown put to the accused that the website only appears to have existed since April of this year. If I recall the accused's answer correctly, he stated that it was only recently that it was hosted at its current address but stated that it had been hosted elsewhere prior to that time. 11The search that has been conducted on the Wayback Machine reveals that a search on the website in question, hfacharmony.com, has resulted in the output "Wayback Machine doesn't have that page archived". A similar search has been conducted on an organisation known as Rand Stone Consulting, and in particular its website www.randstoneconsulting.com, which has yielded the same outcome. 12The Crown seeks to tender these results from the use of the Wayback Machine as a part of the proof of its case that these two organisations, HFAC and Rand Stone Consulting, are fictitious inventions of the accused and that their websites were recently concocted either by him or at his direction. The difficulty at this point is, however, identifying the significance of a negative result on the Wayback Machine, that is, a result that yields that the page is not archived. 13It is possible to conceive of at least two explanations consistent with the accused's evidence for those results. The first is that the underlying archiving logarithms are not exhaustive of everything that exists on the internet. Just as web engines have algorithms that allocate priorities in searching the internet it may be that the Wayback Machine has criteria by which it does or does not archive certain pages on the internet. 14The second is whether it makes any material difference to the archiving facility the fact that the computer and service provider that ultimately hosts a particular website may have changed over time as stated by the accused. That may be irrelevant or it may be significant. 15Thus in my view there are a host of possibilities with a negative result which can be contrasted with a positive result by using the Wayback Machine. Once those possibilities are identified, and bearing in mind that there is no underlying explanation being given for the parameters under which he Wayback Machine operates, in my view it becomes clear that the prejudice that could be occasioned by the tender of this material outweighs its potential probative value and I will reject it. ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2018