Amalgamated Television Services Pty Ltd v Marsden

[2000] NSWCA 167

CITATION:	Amalgamated Television Services Pty Ltd v John Marsden [2000] NSWCA 167
FILE NUMBER(S):	CA 40394/00; CLD20223/95; 20592/96
HEARING DATE(S):	06/07/2000 to 07/07/2000
JUDGMENT DATE:	13 July 2000
PARTIES :	Amalgamated Television Services Pty Ltd v John Marsden
JUDGMENT OF:	Priestley JA; Powell JA; Foster AJA

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	20223/95; 20592/96
LOWER COURT JUDICIAL OFFICER :	Levine J

COUNSEL:	W.H. Nicholas QC / N.J. Williams/ M.S. White - Claimant I.D. Temby QC / M. Buscombe - Opponent
SOLICITORS:	Mallesons Stephen Jaques - Claimant Phillips Fox - Opponent
LEGISLATION CITED:	Part 31 of the Supreme Court Rules The Listening Devices Act 1984 The Evidence Act 1995
CASES CITED:	Ventouris v Mountain (No 2) (1992) 1 WLR 887 R. v Karageorge (1998) 146 FLR 100
DECISION:	Refer Paragraph 45.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40394/00
CLD20223/95; 20592/96

PRIESTLEY JA
POWELL JA
FOSTER AJA

THURSDAY, 13 JULY, 2000


AMALGAMATED TELEVISION SERVICES PTY LTD v MARSDEN

JUDGMENT

1    THE COURT:

The form of the proceedings in this court .

The claimant, Amalgamated Television Services Pty Limited, by its further amended summons dated 29 June 2000, sought leave to appeal from a number of interlocutory orders made by Levine J during the course of a lengthy trial, which is still proceeding before him, in which the claimant is the defendant and the opponent, Mr John Marsden, is the plaintiff.

2 The interlocutory orders all related to the admissibility of certain evidence, rejected by Levine J. The parties were concerned that if the plaintiff obtained judgment and the defendant then appealed, and if on appeal the view was taken that the evidence should have been admitted, then the result might be the ordering of a new trial, which neither party wanted. 3 Levine J, in order to facilitate proceedings in this court made orders under Part 31 rule 2 of the Supreme Court Rules that certain questions be determined separately. These questions and his answers to them embodied his decisions on the various points about which the claimant sought leave to appeal. 4 The questions, all of which he answered “No” were as follows:

(1) Whether the document MFI 191 should be admitted into evidence as probative of the fact that warrant No 308 of 1995 was granted pursuant to s 16, Listening Devices Act (the Act).
(2) Whether the document MFI 197 should be admitted into evidence as probative of the fact that warrant Nos 314 of 1995 and 315 of 1995 were granted pursuant to s 16 of the Act.
(3) Whether the document MFI 193 should be admitted into evidence as probative of the fact that warrant Nos 345 of 1995 and 346 of 1995 were granted pursuant to s 16 of the Act.
(4) Whether the document MFI 199 should be admitted into evidence as probative of the fact that warrant Nos 89 of 1996 and 90 of 1996 were granted pursuant to s 16 of the Act.
(5) and (6) [These were not pursued in this court.]
(7) Whether counsel for the defendant appearing at the trial is permitted to cross-examine the plaintiff by:
(a) using material derived from the transcript of the tapes being documents MFI Nos 189, 195, 196, 198, 200 and 201;
(b) putting to the plaintiff material derived from the transcript of the tapes being documents MFI Nos 189, 195, 196, 198, 200 and 201.
(8) Whether in the circumstances and on the proper construction of ss 5(1) and 13(2)(b) of the Act, it is open to the defendant to cross-examine the plaintiff on the subject matter or contents of the conversations being the product of the tapes namely the documents MFI Nos 189, 195, 196, 198, 200 and 201 by reference to or use of either the tapes or any transcript thereof.

5    The proceedings were heard in this court on 6 and 7 July last week. Towards the end of the hearing leave was granted to amend the summons further and also to amend further the grounds of appeal and the orders sought if leave were granted and the appeal succeeded. 6    The points which this court was in the end asked to decide should leave be granted appear clearly from the orders sought in the proposed notice of appeal in its final form. These were as follows:
7    1. Allow the appeal.

2. Set aside the orders made by Levine on 25 May, 26 May and 22 June 2000.
3. That the court records as its answer to the following questions ordered by
Levine J to be determined separately pursuant to Part 31 rule 2 of the Supreme Court Rules, in lieu of the answers given by Levine J:
(1) Yes
(2) Yes
(3) Yes
(4) Yes
(7) Yes
(8) Yes.
4. In the alternative, order that the parties be permitted access, subject to any claim of public interest immunity, to any unexecuted form of warrants contained on files RCNSWPS No 308 of 1995 (Listening Devices Act 1984), RCNSWPS No 309 of 1995 (Listening Devices Act 1984), RCNSWPS No 314 of 1995 (Listening Devices Act 1984), RCNSWPS No 315 of 1995 (Listening Devices Act 1984), RCNSWPS No 345 of 1995 (Listening Devices Act 1984), RCNSWPS No 346 of 1995 (Listening Devices Act 1984), RCNSWPS LD No 89 of 1996 (Listening Devices Act 1984) and RCNSWPS LD No 90 of 1996 (Listening Devices Act 1984).
5. Order that counsel for the defendant/appellant appearing at the trial be permitted to cross-examine the respondent by:
(a) using material derived from the transcript of the tapes being documents MFI Nos 189, 195, 196, 198, 200 and 201;
(b) putting to the plaintiff/respondent material derived from the transcript of the tapes being documents MFI Nos 189, 195, 196, 198, 200 and 201.
6. Order that the defendant/appellant be permitted to cross-examine the plaintiff/respondent on the subject matter or contents of the conversations being the product of the tapes namely the documents MFI Nos 189, 195, 196, 198, 200 and 201 by reference to or use of either the tapes or any transcript thereof.
7. The respondent pay the appellant’s costs of the appeal and the application for leave to appeal.

8 The procedure adopted pursuant to Part 31 of the Supreme Court Rules may not have been technically appropriate in the present case. We need not express any opinion about that. No objection was taken to it. The opponent did not argue against the court’s jurisdiction to grant leave and hear an appeal if the court thought it proper to do so. We are satisfied the court has jurisdiction (cf Ventouris v Mountain (No 2) 1992 1 WLR 887), but whether it should be exercised in the circumstances of the present case is a matter of some concern. 9 The nature of the case at first instance.

The proceedings involve a claim by the opponent that he has been defamed by the claimant, to which claim various defences, including justification, have been raised. The claimant has closed its case. The opponent is in his case in reply. He has given evidence and been cross-examined. His evidence has concluded but other witnesses are still to be called.

10    During the claimant’s case in chief attempts were made to introduce into evidence the tapes and transcripts referred to. These related to conversations between the opponent and a witness Mr Elomari. The claimant’s case was that the tapes (the “Elomari tapes”) came into existence through the use of listening devices which had been attached to Mr Elomari’s body by police investigators working with the Police Royal Commission and by means of which the conversations had been recorded by the police officers without the opponent’s knowledge. It is asserted by the claimant that the contents of the conversations are relevant to the defences of justification and could also be used in the cross-examination of the opponent. The rulings made by his Honour and which are sought to be appealed from have prevented the claimant using the material in this way. 11    Statutory Provisions

The listening devices are claimed to have been attached and used in conformity with the Listening Devices Act 1984 (“the Act”), which imposes considerable restrictions on the use of such devices and on the admissibility into evidence of conversational material recorded through their operation. At the relevant time the Act prohibited the use of such devices unless a prescribed warrant had been granted by a Supreme Court Judge and the device was used strictly in accordance with the provisions of the warrant. In the absence of such a warrant, material recorded could be admitted into evidence only in very limited ways. The relevant provisions in the Act producing these results were as follows:-

“5 Prohibition on use of listening devices
(1) A person shall not use, or cause to be used, a listening device:
(a) to record or listen to a private conversation to which the
person is not a party, or
(b) to record a private conversation to which the person is a
party.

(2) Subsection (1) does not apply to:
(a) the use of a listening device pursuant to a warrant
granted under Part 4.

(3) Subsection (1)(b) does not apply to the use of a listening
device by a party to a private conversation if:
(a) …..
(b) a principal party to the conversation consents to the
listening device being so used and:
(i) the recording of the conversation is reasonably
necessary for the protection of the lawful interests
of the principal party.”

12 These provisions are to be found in Part 2 of the Act which deals with offences. 13 Part 3 deals with admissibility of evidence. It contains section 13 which relevantly provides as follows:-

“13 Inadmissibility of evidence of private conversations when unlawfully obtained
(1) Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device in contravention of section 5:
(a) evidence of the conversation, and
(b) evidence obtained as a direct consequence of the
conversation so coming to the knowledge of that person,
may not be given by that person in any civil or criminal
proceedings.
2. Subsection (1) does not render any evidence inadmissible:-
……..
(b) if the private conversation concerned comes to the
knowledge of the person called to give the evidence otherwise than in the manner referred to in that subsection, notwithstanding that the person also obtained knowledge of the conversation in such a manner.”

14 By Section 3(1) of the Act a “party” in relation to a private conversation means:-

“ (a) a person by or to whom words are spoken in the
course of the conversation, or
(b) a person who, with the consent, express or implied, of any
of the persons by or to whom words are spoken in the course of the conversation, records or listens to those words.”

“ private conversation ” is defined as meaning:-
“any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only:
(a) by themselves, or
(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so.”

15    A “principal party” is defined as:-

“ in relation to a private conversation, … a person by or to whom words are spoken in the course of the conversation.”

16 Section 16, in Part 4, contains numerous provisions relating to the issuing and contents of warrants authorising the use of listening devices which need not be set out in detail here. It may be noted that the names of the persons to use the devices must be specified and the period during which the warrant is to remain in force must be stated. There are various other provisions in the Act which are clearly intended to safeguard the privacy of citizens from unauthorised use of such devices. 17 The rejected “copy warrants”

A factor in the failure of the claimant’s attempts to introduce into the evidence in its case both the Elomari tapes and transcript of the conversations recorded on them was its inability to satisfy the judge that certain documents containing deletions but asserted to be substantial copies of the original warrants obtained by the relevant investigating officers (“the copy warrants ” ) were admissible in evidence. The absence of this evidence removed a necessary link in a chain of evidence directed to establishing that the relevant listening devices had been lawfully used. Moreover, the claimant failed to satisfy the judge that the exception in s. 5(3)(b)(i) applied. Accordingly, the claimant’s case, when closed, did not include the tapes and transcripts. When counsel for the claimant sought to cross-examine the opponent in relation to the material in the transcripts, which he had in his possession, an objection to this course was taken by counsel for the opponent. The objection was upheld and his Honour made an order, which is sought to be appealed from, that this cross-examination not proceed.

18    In the course of the hearing in this court a concession has been made on behalf of the opponent that, should this Court be of the view that his Honour was in error in making this order, then the opponent would not oppose leave being granted to appeal from it and would, the order having been set aside, offer himself for further cross-examination in respect of the Elomari conversations. 19    The s. 5(3)(b)(i) argument.

It is convenient, in these circumstances to consider first whether his Honour erred in relation to his ruling on the course of cross-examination. Before doing so, however, it is desirable to consider the claimant’s submissions in respect of the application of s. 5(3)(b)(i) of the Act as, if those submissions be upheld, the necessity to prove authorisation by warrant is excluded from the case. This would, of course, have an important bearing upon the question of the admissibility of the tapes and the use of the transcripts in cross-examination.

20 Submissions were made to Levine J that, in effect, the claimant had no need to establish compliance with s. 5(2)(a) of the Act as s. 5(3)(b)(i) could be relied upon. It was put that Elomari, being a consenting principal party, the recording was reasonably necessary for the protection of his “lawful interests”. 21    It was submitted, inter alia, to Levine J that these interests had come into existence as a result of attacks made upon him during the trial. In cross-examination, he had been accused of perjury and also of taking a bribe. Levine J rejected these submissions. He held that, as a matter of construction, the section could apply only to “interests” in existence at the time of the use of the listening device. In this he was plainly correct. It has not been sought before us to repeat these rejected submissions. 22    However, it had been further submitted to Levine J that, when the recording was made, Mr Elomari had a lawful interest to protect, arising from the fact that it was expected that he would be the object of an attempt at subornation by the opponent in respect of evidence he might give against the opponent, the recording offering protection to him, in some way, in this situation. This submission has been repeated in this Court. In our view it was also correctly rejected by Levine J. The “interest” was not, nor is it, clearly defined, nor was there any evidence to support its existence. The evidence indicates clearly that it was solely in the interests of the investigation that the device was placed upon Mr Elomari for the purpose of recording any subornation attempt by the opponent. 23 In our opinion s. 5(3)(b)(i) cannot, in the present case, overcome the effect of s. 5(1)(b). Nor can it assist in rendering the transcript of the Elomari conversations available for use in cross-examination of the opponent. 24 The cross-examination argument.

Counsel for the claimant sought to cross-examine the opponent by use of the material recorded in the Elomari tapes. This course of questioning was objected to and, as already indicated, the objection was upheld. His Honour, in his judgment of 8 June 2000, dealt with the matter by holding that it was “ not open to the defendant to cross-examine the plaintiff on the subject matter or contents of the conversations, being the product of the ‘Elomari tapes’, by reference to or use of either the tapes or any transcripts thereof and I order the defendant not to do so .”

25 His Honour was dealing with the question on 8 June 2000 on the basis of the evidence as it existed at that point in the trial. The tapes and transcript, despite attempts to get them into evidence, had not been admitted. His Honour was aware that his rulings in this regard were the subject of appeal to this Court, a matter that he mentioned in his judgment. He clearly had in mind that his ruling on the continuance of the cross-examination, on the basis of material which had previously been excluded from evidence, would probably be tested in the context of the appeals from his previous rulings. 26 Apart from a ruling which His Honour also gave that the cross-examination was not permissible pursuant to s. 13(2)(b) of the Act, a question to which we shall return, he did not indicate the precise basis upon which the cross-examination was disallowed. Presumably, he had in mind that in the absence of proof of appropriate warrants, the evidence was unlawfully obtained. He made the following comment:

“ I was not urged to exercise any discretion. Had I been, I would otherwise have excluded the evidence that would be elicited or sought to be elicited in the cross-examination on the ‘ line ’, under s 135(a) of the Evidence Act 1995, given the absence of any evidence from Mr Elomari and otherwise the absence of any proof in relation to compliance with s. 5 of the Listening Devices Act, the probative value of any such evidence being substantially outweighed by the danger of prejudice. Also would I have exercised my discretion under s. 135(c) and, so that there is as much clarity as possible, the reason for exercising it against admission under s. 135(c) is the potential, in a short time, for appellate intervention or consideration of this very subject matter .”

27 We take it from this statement that his Honour had formed a definite view that the cross-examination should, as a matter of discretion, be excluded under s. 135(a) of the Evidence Act 1995, although, in the circumstances, it was not necessary to exercise the discretion. We are of the view that such an exercise of discretion may well have been soundly based. It was acknowledged that the cross-examination was based on the Elomari tapes in circumstances where, so far as the evidence showed, it had not been established that they had been lawfully obtained. 28 The question whether the cross-examination should also have been excluded under s. 6(1) of the Act was raised in this appeal, it being suggested that the section would operate upon the cross-examiner to prevent his use of the material. We have decided that the provision would not apply in this way in this case. The section creates an offence and would require proof to the appropriate standard that the cross-examiner knew that there had been a contravention of s. 5 of the Act. It was the claimant’s position that s. 5(2)(a) had, in fact, been complied with. 29 It was also submitted to Levine J that the “line” of cross-examination was permissible pursuant to s. 13(2)(b) of the Act. His Honour rejected this submission. It has been repeated before us. The submission requires that the opponent, Mr Marsden, be regarded as “the person called to give the evidence”, it being contended that, as such, he could, as a result of answering questions in cross-examination based on the Elomari tapes, give evidence of the “private conversation” between himself and Elomari, notwithstanding the prohibition contained in s. 13(1). 30    We consider that his Honour rightly rejected this submission, despite the fact, as pointed out to us, that the opponent, besides being a principal party to the conversation, had also listened to the recorded conversation after the tape had been made available to him and his representatives during the course of the trial and also had had access to the transcript of the tape. In our opinion, as a matter of construction, the section does not apply in the circumstances. The recorded conversation was a “private conversation” as defined in s. 3 of the Act and the opponent and Elomari were each a “principal party” to it. In our opinion the section does not apply where the “person called to give the evidence” is a “principal party” to the private conversation. The conversation could not be said to “come to the knowledge” of such a party. He has knowledge of the private conversation directly and contemporaneously as a participant in it. The person contemplated by the section is one who acquires knowledge of it other than as a participant in it. It would apply to someone overhearing the conversation or acquiring knowledge of it in some way other than through the use of a listening device. Accordingly, in our view, even if leave were to be granted, the claimant’s appeal in respect of the trial judge’s order, based upon the state of the evidence at the time, could not succeed. 31 At the commencement of the hearing in this court, one of the claimant’s proposed grounds of appeal was that his Honour should have admitted the Elomari tapes and transcripts, but this was abandoned in the course of argument. Accordingly, the next question arising is whether error has been demonstrated in relation to his Honour’s refusal to admit the copy warrants as evidence of compliance, in the circumstances, with s. 5(2)(a) of the Act. The warrants in question had been provided by the Police Integrity Commission (“the Commission”) with a number of deletions which had been made pursuant to statutory powers, the exercise of which has not been the subject of challenge. They had been provided in substitution for earlier copies of the warrants in which many more deletions had been made. His Honour had rejected the tender of these earlier copies on the basis that, having regard to the deletions, they could not answer the description of warrants. He rejected the documents in question on the same basis. They were not warrants contemplated by s. 16 of the Act. We would agree that the earlier copies, having regard to their mutilated state, were properly rejected. We have, however, with respect, come to the view that the copy warrants, the subject of this application, should not have been rejected. 32 The question posed by s. 5(2)(a) of the Act was whether the relevant listening device had been used “pursuant to a warrant granted under Part 4”. The relevant section in that Part was s. 16 which made elaborate provision for the application for and granting of warrants for listening devices and for their contents. In our opinion, in circumstances where it was accepted that the original warrants were unobtainable, secondary evidence of the granting of appropriate warrants would be admissible. Evidence could be led to ground an inference that proper Part 4 warrants had been granted as posited by s. 5(2)(a). 33 An examination of the rejected copy warrants shows, in our opinion, that, notwithstanding the deletions, they afford some evidence of the granting of original warrants in an unaltered form. At the very least they could provide links in an evidentiary chain, leading to a finding that appropriate warrants had been granted and used. We consider, with respect, that his Honour erred in rejecting their tender. We shall consider later what effect this should have upon this application. 34 The access question.

The next matter for consideration is the claimant’s submission that the trial judge erred in dismissing a notice of motion brought by the claimant on 22 June 2000. This had been brought consequent upon the hearing before us on 16 June 2000, when these proceedings were adjourned on the basis that the claimant had not taken all available steps to seek access to files in this Court, which could contain warrants relating to the Elomari tapes.

35    The relevant files had been brought by the Registrar to his Honour’s Court for the hearing of the notice of motion. The motion was heard in circumstances where it was possible that an application might be made on behalf of the Commission that the documents in the files be made the subject of a claim of public interest immunity. Counsel appeared on behalf of the Commission for this purpose. It was made known to the Court by the counsel for the claimant that access was sought only in respect of “warrants”. In these circumstances it was agreed that counsel for the Commission should view these documents before access was granted to the parties, so that he could decide whether an application for immunity should be made. 36 The transcript of the proceedings indicated that counsel for the Commission, having inspected, from the files, all documents described as warrants, informed the Court that these documents were photostats unsigned and unsealed. Although the transcript shows some confusion at first about the precise detail of what counsel was reporting, the transcript also makes quite clear, in our opinion, that his Honour and counsel for both parties accepted that this was the position. The documents were not inspected by the Court or counsel. His Honour expressed the view that documents in this form could not constitute warrants. In these circumstances he dismissed the notice of motion. 37 The notice of motion had sought access to warrants described by numbers given to them in the proceedings of the Police Royal Commission. The reference would appear to have been to original warrants. It is clear from the transcript that the judge and counsel for the parties accepted that the documents seen by counsel for the Commission could not answer this description. 38 In our opinion, it has not been demonstrated that his Honour erred in dismissing the notice of motion in the circumstances revealed by the transcript. 39 In the result, we are of the opinion that the questions posed pursuant to Part 31 rule 2 of the Supreme Court Rules should have been answered by Levine J.

1-4 Yes, taking “ probative ” as meaning that they afforded some evidence of the granting of original warrants in an unaltered form.
7 No
8 No.

40    Should leave be granted?

The next question is what should be the result of the claimant’s application having regard to the opinion we have formed and to the fact that leave must be granted before the claimant can be entitled to any relief. Reference has been made to the concession of the opponent in relation to the question of cross-examination. In view of our conclusion on that question, this concession is no longer relevant. We have upheld the submission that the copy warrants, for the reasons already expressed, should have been admitted but it does not necessarily follow that this decision ensures their admission at this stage or that if they were now to be admitted that would produce the result that the Elomari tapes and transcripts would also necessarily be admitted into evidence. It is clear that considerable further evidence would be needed before that result could be achieved. The defendant’s case is closed. The whole evidence phase of the case is approaching completion. An application would have to be made to his Honour to reopen the claimant’s case to enable the extra evidence to be given. This Court can make no orders which could affect the exercise of the trial judge’s discretion in this regard. Moreover, it is clear that there would be considerable argument as to the extent and nature of the evidence necessary to link the copy warrants to the Elomari tapes and transcripts. We have received submissions from both sides as to what remains to be proved by the claimant to achieve this result. There is no need to set out the competing contentions. It is sufficient to note that the opponent asserts that the claimant bears the onus of establishing in the strictest way the steps followed in the obtaining of the warrants, the acts relating to the listening devices taken in compliance with the terms of the warrants, the recording procedures, the recovery and subsequent processing of the resulting tapes, the custody of the tapes and their identification with the tapes sought to be tendered. For its part, the claimant says that in these civil proceedings the strict requirements envisaged in criminal cases such as R v Karageorge (1998) 146 FLR 100 need not apply and that inferences sufficient to ground admission may be drawn on the basis of material already in evidence with the addition of not a large amount of extra evidence admitted by leave of the trial judge, should such leave be granted.

41    The opponent contends that we should dispose of these proceedings by granting leave and then dismissing the appeal, thus achieving a final result in relation to the Elomari tapes. Alternatively, it is submitted that, because of the number of steps still necessary to be taken in the trial to achieve their admission, including seeking a discretionary grant of leave to reopen, that we should, as a matter of discretion, despite the error we consider to have occurred, refuse leave to appeal. 42    We have found these suggestions, particularly the latter, very attractive. However, having regard to the fact that both sides have joined in seeking the interlocutory intervention of this Court in these evidentiary matters, on the basis that they desire to reduce as far as possible the risk of a subsequent order for a retrial of the whole proceedings, we have concluded that leave should be granted, and the appeal upheld in respect of those matters where we have found in favour of the claimant, namely the admission of he copy warrants. 43    It will, of course, be entirely a matter for his Honour whether to accede, at this late stage of the trial, to an application on behalf of the claimant to reopen its case to call further evidence linking the copy warrants with the tapes and transcripts, sufficient to allow their admission. We are told that such a course will be vehemently opposed by the opponent. Nothing we have said should be taken as evidencing any view as to how the trial judge’s discretion should be exercised. He, of course, having had the conduct of the whole trial, is in a uniquely favourable position to make that decision. 44    We are of the opinion that, in all the circumstances, it is appropriate that each party should bear its own costs of this application. 45    Accordingly, the orders of the Court are:-

1. Leave to appeal be granted.
2. Appeal allowed in part.
3. The orders of Levine J made on 25 May 2000 be set aside.
4. The answers given by Levine J to the questions ordered to be
determined separately pursuant to Part 31, rule 2 of the Supreme Court Rules be set aside and, in lieu thereof the following answers be given:-
1-4 Yes, taking “ probative” as meaning that they afforded some
evidence of the granting of original warrants in an unaltered form.
7 No.
8 No.
5. Otherwise, appeal dismissed.
6. No order as to costs.

oOo