Supreme Court New South Wales Medium Neutral Citation: Hamilton v State of New South Wales (No 4) [2015] NSWSC 51 Hearing dates: 4 – 8 August 2014; 9 February 2015 Date of orders: 09 February 2015 Decision date: 09 February 2015 Jurisdiction: Common Law Before: Campbell J Decision: I am satisfied that the evidence of Mr Lawman and the evidence admitted through him, is relevant. Catchwords: EVIDENCE – admissibility – relevance – facts in issue – evidence of practice in taxi industry for downloading images from in-board security cameras Legislation Cited: Law Reform (Vicarious Liability) Act 1983 (NSW) Category: Procedural and other rulings Parties: Thomas David Hamilton (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: C Steirn SC with D Morgan (Plaintiff) P Bodor QC with SA Woods(Defendant) Solicitors: Garling Lawyers (Plaintiff) Makinson & d'Apice Lawyers (Defendant) File Number(s): 2012/185616 REVISED EXTEMPORE Judgment 1. I have received evidence this afternoon on the voir dire from Mr Lawman, a solicitor in the employ of The Combined Communications Network Pty Ltd. From his evidence I understand that the company is part of the group of companies associated with Taxi Combined Services. The taxi in which the plaintiff was travelling on the late evening of 12 December 2009 bearing number T4394 was part of that network. 2. The plaintiff is suing the State of New South Wales pursuant to the provisions of the Law Reform (Vicarious Liability) Act 1983 (NSW) in respect of what he says are a number of torts committed by a serving police officer. Those torts include assault or battery, false imprisonment, malicious prosecution and misfeasance in public office. Included amongst the elements of the tort of malicious prosecution is the necessity for the plaintiff to prove that the prosecution, which was resolved successfully in his favour, was brought or actuated by malice on the part of the prosecutor and without reasonable or probable cause. 3. The background to the prosecution is that the plaintiff was charged with having assaulted the driver of taxi cab T4394 on 12 December 2009. The evidence of the plaintiff before me - and I paraphrase it - is that in his discussions with the arresting police officer shortly after his arrest he suggested to him that the question of whether he assaulted the taxi driver might be proved or disproved by reference to the recorded images in the taxis in-board camera. 4. The plaintiff's case about this is that the police officer did not take up the suggestion and did not obtain copies of the images recorded by the camera in the cab which would have been available at least for some period of time after the incident. 5. Mr Lawman gave evidence that as part of his job as an employed solicitor he fielded inquiries about the images recorded by the inboard cameras emanating either from solicitors directly or by way of a subpoena issued out of one of the courts of this state. He can tell me that by reference to exhibit voir dire A, a Mr Kenny or called Kenny and Associates acting on behalf of the plaintiff at that time initiated an inquiry about those images relevant to this case because he wrote to Mr Kenny on either 24 March 2010 or 24 May 2010 providing the results of inquiries he had made internally to find out whether images were available. 6. The letter I think needs to be set out in full. I should say, before I set it out, that the body of the letter refers to 24 May 2010 and the letter bears date 24 March 2010. It seems to me that it is likely at least for present purposes that the date of the letter is 24 March 2010 because such matters are normally put on letters as a matter of course and the part which has been consciously dictated, that is to say, the body of the letter which contains the date 24 May 2010 is much more likely to be the result of a slip of the tongue or an error in proof reading. 7. In any event, the letter says this: I have to hand your e-mail of [24 March 2010] seeking images in relation to an incident that allegedly occurred on 12 December 2009 involving the driver of T4394. Our investigations into the matter reveal that on or about 12 December 2009 a request for images to be downloaded was received and a download was accordingly undertaken. In accordance with legislative provisions the downloaded images were kept for 30 days and then destroyed. During the 30-day period no request for the images was made by the New South Wales Police in accordance with the legislative provisions for the release of those images. Accordingly to the best of my knowledge no images exist. 1. Mr Lawman explained in his evidence that under the regulations governing taxi operations requests from either police officers or taxi compliance officers were required to be dealt with, that is to say, members of the public might also make such requests but they would not be dealt with according to the established procedures. 2. He also explained that most requests from police officers occurred in the night-time when most incidents occurred and, in the first instance, were made to supervisors of the radio room because the administrative offices of the taxi company were closed then. 3. I would infer at least for the purpose of determining the question of the admissibility of his evidence that those procedures would be known to serving police officers who may be familiar with them as a matter of practice. I bear in mind that this is a civil case and I need only be satisfied at a relatively undemanding level for the purpose of admissibility that is to say at the end of the day this evidence taken in conjunction with other evidence may be relevant to an issue I have to determine. 4. In any event he explained that the letter contained the results of his contemporaneous investigations of which he has no independent recollection. 5. He also said in answer to a question I asked him during the course of re-examination, that he would not have included statements in the letter unless it represented the results of the enquiries actually made by him. 6. Apart from exhibit VDA, there is another contemporaneous document which has been produced by Combined Communications Network Pty Limited under subpoena issued out of this Court. It is an email from an administrative officer named Margaret Haslam to a technician named Mark McKay. Mr Lawman explained that he had seen that email recently, and it is the only extant document relating to the downloading of the images. 7. Ms Haslam is the administrative officer who coordinated the processing of requests passed on to her from, usually, the radio room supervisor and Mr McKay, was the technician who was responsible for putting downloaded images onto a disc to provide to the person making the request, if that person was entitled to receive it under the regulations. 8. In any event, Ms Haslam informed Mr McKay that another employee, David Lao "did the download for T4394". I interpolate that Mr Lao was another employee of the company who had a security licence, which was a necessary requirement for the purpose of the regulations of the person required to download requested images from in-board taxi security cameras. It goes on to say to Mr McKay, "If you do the CD-ROM, I'll phone Jared Mildenhall to advise him." I should say that Mr Mildenhall is the police officer who arrested Mr Hamilton on or about 12 December 2009 and who is the alleged primary tortfeasor in this case for whom, under the statute, the Crown may be vicariously liable if I am satisfied that he has committed the torts alleged against him. Clearly, he was a police officer at the time and his request for information is the type of request for information that is processed according to procedures described by Mr Lawman. 9. The email is dated 18 December. It points out that the incident was on 12 to 13 December and it asks, "Are there any images on this date?" I understand this for present purposes to relate to the evidence given by Mr Lawman that the in-board security camera did not record a continuous image of any given taxi journey, it recorded a series of stills. Certain events generated the record, for instance, doors opening for passengers to get in or out, or the driver to get in or out, generated a series of 10 stills. Operating the meter by way of flag-fall also generated 10 stills and likewise, stopping the meter generated 10 stills. 10. Periodic pictures were taken during the journey, but he was unable to say how frequently. Certainly he was able to say that if the emergency button with which the cab was fitted was pressed, a series of 300 stills was photographed. For the purpose of determining admissibility, I do not think the question "are there images on this date?" necessarily has any particular significance. There would be images for that date unless they had been recorded over, and Mr Lawman was not able to give any evidence about the capacity of the camera with which T4394 was fitted, however, going back to Mr Lawman's letter, his statement "a download was accordingly undertaken", confirms that he was satisfied about what Ms Haslam said in her email. 11. His further statement that the downloaded images were kept for 30 days also confirms that at the time he was satisfied that procedures had been followed, and likewise, his statement that during the 30-day period no request for the images was made by the police is, at least, evidence of that fact. 12. One can infer from his description of the procedure and from inferences fairly open, whether they are ultimately drawn or not is another matter, on the documentary evidence on the voir dire, that once the CD-ROM was prepared, it was Ms Haslam's job to contact the police officer to advise him to see whether he still wanted a copy of it. 13. Now, it is at least possible from her email that an inspection by Mr McKay might show that there were no images of any evidential value on the camera, and that that might be a reason why a police officer would not want to take it any further. On the other hand, it is also at least possible that there were images which might be useful either because they, with respect, inculpated or exculpated the plaintiff, and which were on a CD-ROM and which could have been provided to the police, but having been told about them, the police officer decided he did not want them, even though evidence that showed an absence of any incident might be material for the purpose of a police prosecution, given the particular nature of the duty lying upon prosecutorial authorities, I am refering to the prosecutor's duty of fairness. 14. Many of these things are imponderable at this stage. Mr Bodor, of course, cross-examined Mr Lawman to demonstrate that there are possibilities that the camera fitted to the vehicle was, in some way, out of order and not recording images on the day and that is possible. But Mr Lawman explained that these safety devices including the in-board cameras, and the emergency button need to be the subject of a certificate of being in good order every 3 months and that certificate has to be provided to Taxis Combined if the taxi is to remain on their network. 15. At this low level of consideration for the purpose of determining the admissibility of the evidence i.e. the relevance of the evidence, I think I can draw some weight from the so called presumption of regularity. One would expect that a public transport vehicle on the roads of New South Wales would have all safety equipment in good working order. Only a cynic would think otherwise. But in any event, it seems to me that for all of those reasons, this evidence is capable of demonstrating malice or want of reasonable cause on the part of the police officer if, at the end of the day, when considered in conjunction with all the other evidence led in the case, and in the light of the addresses of counsel in relation to it, I am satisfied on the balance of probabilities, that Mr Mildenhall declined to obtain the evidence that might have been available on the download because it was exculpatory of the plaintiff. 16. I stress I am concerned only with the question of the admission of his evidence. It is not part of my role at this stage to express any view whatsoever about the persuasiveness of the material I have heard so far. We are still in the plaintiff's case which is about to close soon, and I have heard none of the evidence from the defendant. But I am satisfied that the evidence of Mr Lawman and the evidence admitted through him, is relevant. ********** 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: 17 February 2015