Admissibility of banking records

6.74 The CDPP raises another issue not investigated in DP 69 relating to the admissibility of business records of financial institutions, such as banking records.[99] It points to the requirement in s 170(2) of the uniform Evidence Acts that an affidavit be provided by an officer of the financial institution who at the time the record was prepared, or afterwards, had a position of responsibility in relation to making or keeping the record.

6.75 The CDPP states that ‘meeting this requirement imposes a not inconsiderable burden on law enforcement agencies as well as financial institutions, despite, in practice, few challenges being made to the veracity of such records’.[100] It submits that consideration should be given to facilitating the admissibility of these records. It suggests as a template s 79C(2a) and 79C(2b) of the Evidence Act 1906 (WA), which provide a more streamlined approach to the admissibility of such evidence.

6.76 The CDPP also refers to the requirement in s 170(2) of the uniform Evidence Acts for evidence to be given in the form of an affidavit, or by a written statement if the evidence relates to a public document. It points out that s 74 of the Criminal Procedure Act 1986 (NSW) provides that prosecution evidence in committal proceedings must be given by way of a statement which complies with the requirements of that Act, with the result that evidence must be produced in statement form at the committal and in affidavit form at the trial. The CDPP submits that, in order to avoid this dichotomy, s 170(2) should be amended by deleting the words ‘or if the evidence relates to a public document’ appearing in s 170(2). This would mean that a written statement or an affidavit would be admissible to prove the relevant matters at both the committal and the trial depending on the relevant procedural requirements of the relevant jurisdiction.

6.77 The CDPP has made constructive suggestions for improving the operation of s 170. However, the Commissions are not satisfied that there is sufficient evidence that the present operation of this section is of such concern as to merit statutory amendment. No other submissions were received on the point and, as it was raised late in the Inquiry, the Commissions were unable to consult widely on it.

6.78 Furthermore, the view that existing formalities for tendering banking records are overly strict rests on the assumption that these documents are reliable. However, this assumption is not necessarily correct, at least to the extent that banking records are so highly reliable that simpler formalities are justified. The above discussion in relation to ss 146 and 147 of the uniform Evidence Acts makes clear that the accuracy and reliability of electronic records (which most banking records are) cannot be assumed. Accordingly, the Commissions do not recommend amendment of the section.

[99] Commonwealth Director of Public Prosecutions, Submission E 108,16 September 2005.

[100] Ibid.