In R v Kaplan [2005] VSCA 316 Justice of Appeal Buchanan, with whom Charles and Eames JJA agreed, dealt with an appeal against a man convicted of theft on the basis of business records which came about in the following manner:
’7 Matthew Lee-Archer was employed in the nursery as a sales assistant. He gave evidence that the tills in the nursery were equipped with a refund button and a no sale button. The former generated a refund slip and the latter opened the till drawer. Lee-Archer said that the applicant attended the nursery each day and pressed the no sale button or asked one of the employees to do so. He would then ask the staff to record a refund. The applicant took the refund slip and money from the till and put them in his pocket.
8 In December 2000 Lee-Archer commenced to record the applicant’s transactions in a diary and continued to do so until 19 February 2001. Later he converted the entries to a spreadsheet. The entries recorded occasions on which Lee-Archer was asked by the applicant to press the refund button and other occasions on which he was told by other members of staff that they had done so at the applicant’s request. The witness said:
“I returned from holidays on the first week of December and the refunds started to increase dramatically over the course of the period, so I believed that something was not right. There was no explanation, so I just started writing everything down, documenting everything that was going on.”
The diary and the spreadsheet were tendered and admitted in evidence.
9 David Compasso was another person who worked in the nursery. He gave evidence in similar terms to that of Lee-Archer. Compasso also kept a record of the applicant’s transactions. He noted refunds on scraps of paper and then entered the details in two diaries, which were admitted in evidence.’
His Honour noted that:
’14 … the only evidence to establish count 61 was an entry in Lee-Archer’s diary recording “$1,000 plants“. Lee-Archer said in evidence that he was informed of the transaction by Ashley Lyall. Lyall did not give any direct evidence of the transaction. He said that he recorded refunds as requested by the applicant in a diary, which he could not now find. Lyall only said in general terms that, being requested by the applicant to do so, he pressed the refund button on the till and gave the receipt and money to the applicant.’
His Honour concluded:
’17 The main thrust of the applicant’s objection to the admissibility of the statements contained in the documents was that the documents were not records relating to a business and had not been made in the course of the business. The documents, it was said, were private records of Lee-Archer and Compasso and were not made in the ordinary course of the Institute’s business for they were made by suspicious employees anxious to record the facts in order to avoid blame. ….
18 In my opinion a document will be “a record relating to any business” even if one of the motives of the person making the record is to serve his own interests. All that the phrase requires is that the document records matters pertaining to a business. Further, I think that the records in the present case were made in the course of business conducted by the Institute. The fact that the documents were created in part to protect Lee-Archer and Compasso did not deprive them of the quality of documents made in the course of the business. Lee-Archer and Compasso were the operators of the tills in the nursery and in the ordinary course of their employment were responsible for the money that flowed to and from and the records generated by the tills. To record, in the context of their duties as the till operators, transactions involving the use of the tills in my view was to create a record in the course of the business.
19 One definition of “course” in the Oxford English Dictionary is “habitual or ordinary manner of procedure; way, custom, practice”. More pertinent, in my view, is the definition of “in the course of”, which is: “in the process of, during the progress of”. The records of Lee-Archer and Compasso were made in the process or during the progress of their conduct of the nursery business of the Institute.
20 Section 55 may be contrasted with s.58A of the Act, which defines “book of account” as the documents used in “the ordinary course” of a business for recording the financial transactions of the business. I do not regard the word “ordinary” as otiose. The diaries and spreadsheets were not documents, such as a sales ledger or a cash book that were one of the standard accounting books of the business established as part of a permanent system. In my view, however, s.55 does not require proof of a standard procedure.’
