Case: Rook v Maynard [1993] TASSC 137 ; (1993) 126 ALR 150
Outcome: distinguished
Hansen relied on Rook v Maynard [1993] TASSC 137 ; (1993) 126 ALR 150 , a case dealing with the common law rules of evidence, where Wright J considered the admissibility of data obtained from a computer program which traced the user's identification number, stating at 157 that: once the trace was applied to the respondent's log-on identification, the process then undertaken by the trace was entirely mechanical in that the peregrinations through the data base by that computer user were automatically traced throughout the system and were recorded and stored for retrieval in report form as soon as the trace print-out was called for. 122 His Honour found that the computer output from this process was not hearsay as it did not contain a human element. 124 The evidence which was being considered in these cases was data which had meaning only by virtue of its analysis or recording by a computer; that is, the computer was performing a function which produced data helpful to the court. Although, in Rook , the user had to log on before the computer would begin its tracing function, it was not this logging on which was the fact sought to be proved in that case. Rather, it was that the computer had undertaken certain functions, which were able to be proved by data resulting from the computer program itself. 125 In the present case what Hansen is ultimately seeking to prove by the tender is the audience reach, but derived from some data that a certain number of people in the sample homes pressed the button when near the television, thereby representing that they were 'in the room where the television was on'. I do not accept that Hansen can avoid this conclusion by asserting that it does not rely on the OzTAM data for the purpose of showing certain people were in the room at the relevant time. Undoubtedly, Hansen seeks to prove the estimated audience sizes for a particular program derived by statistical methods from the data, but such data is not automatically recorded by the meters without the human intervention of deliberately pressing the button to show a person or persons are in the room where the television is on. When the people are in the room they intend to, and do, make the representation to assert the existence of this fact, the existence of which needs to be proved to form the basis of the statistical analysis. It seems to me that the necessary reliance by Hansen on the data derived from the sample homes must involve the representation (as defined broadly in s 3 and the dictionary in the Schedule to the Evidence Act ) by a person that the person was in the room on the relevant occasion, namely when the television is operating. 126 This is the previous representation (as broadly defined) which, under s 59 of the Evidence Act , makes the source data hearsay which is then used to calculate the audience reach. It is not because the OzTAM computer processes the information that the data is hearsay, it is because the original makers of the representation (the people pressing the buttons) are not giving the evidence themselves. The fact that the source data which is fed into the OzTAM system by the users is then processed using a computer program is not germane to the question of whether the underlying evidence which has been put to the Court in this instance is hearsay or not. 127 Hansen submitted that, in the event I found that the OzTAM data was hearsay, the evidence forms part of the business records of OzTAM because the reports in question are 'the very things constituting the business activities of OzTAM' and are therefore admissible in any event. Hansen pointed to various authorities, including a number concerning market survey evidence, to support its proposition. 128 It is important to recall that I am considering the documents in the three exhibits, which are extracts, specially obtained by Hansen for the purpose of the proceeding, of the statistical analysis that is generated on an ongoing basis by OzTAM.