Anders and Anders (No.2)
[2008] FMCAfam 1125
•15 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ANDERS & ANDERS (No.2) | [2008] FMCAfam 1125 |
| FAMILY LAW – Parenting – admissibility of emails. |
| Family Law Act 1975, s.69ZT Evidence Act1995 (Cth) s.138 Crimes Act1900 (NSW) ss.308B, 308H Criminal CodeAct 1995 (Cth) ss.476.2 , 478.1 Cybercrimes Act 2001 (Cth) s.478.1 |
| Director of Public Prosecutions v Carr (2002) 127 A Crim R 151 Ridgeway v The Queen (1995) 184 CLR 19 |
| Applicant: | MR ANDERS |
| Respondent: | MS ANDERS |
| File Number: | SYM 4026 of 2006 |
| Judgment of: | Kemp FM |
| Hearing date: | 8 September 2008 |
| Date of Last Submission: | 8 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stewart |
| Solicitors for the Applicant: | Hamish Cumming Family Lawyers |
| Counsel for the Respondent: | Mr Wong |
| Solicitors for the Respondent: | Levy Partners |
| Independent Children’s Lawyer: | Mr Sperling |
ORDERS
Emails being provisionally tendered as Exhibit Z on the voir dire containing documents marked A-E be admitted into evidence as Exhibit K.
IT IS NOTED that publication of this judgment under the pseudonym Anders & Anders is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 4026 OF 2006
| MR ANDERS |
Applicant
And
| MS ANDERS |
Respondent
REASONS FOR JUDGMENT
Introduction
During the course of the hearing, an issue arose as to the admissibility of various emails obtained by the father after accessing in some way, through the use of a password, the mother’s email account. The relevant emails have been provisionally tendered as Exhibit “Z” on the voir dire containing documents marked A-E (“the subject documents”).
Mr Sperling for the Independent Children’s Lawyer did not seek to be heard on the voir dire.
Mr Stewart, Counsel for the applicant father sought to tender the subject documents on the bases set out below:
Relevance
Mr Stewart submits that the subject documents are relevant to the Court’s assessment under s.60CC of the Family Law Act 1975 (Cth) and for the determination of a number of issues, including the mother’s involvement in a witch’s coven and the impact that her witchcraft activity and her possession of witchcraft items (such as a dagger and mirror) are having upon the children.
The mother’s evidence being that her interest in witchcraft was largely as a result of her research for a book she is writing and that she was not more involved in its practices. Mr Stewart submits the dates and wording of the subject documents are relevant to the Court’s determination as to whether the mother’s evidence should be accepted on this issue.
Mr Stewart also submits the subject documents are relevant to the Court’s determination of the credit of the various witnesses, including not only the mother but her partner Mr G, who, he says, when confronted with one of the emails retracted his oral evidence about the time that had elapsed since the mother’s involvement in the coven and admitted that he had been involved as a note taker.
Mr Stewart also submits the subject documents are relevant to the Court’s determination of the framing of any final Order as to the mother’s involvement in witchcraft. The dates of the subject documents, Mr Stewart submits, impact upon the terms of any permanent injunction to be made and whether irrespective of any Court order, the children would continue to be exposed to such activities, particularly if the children live with the mother.
The currency of the subject documents, Mr Stewart also submits, shows that the mother perceives that the witchcraft issue is no more than an attempt by the father and, in her view, the Court to persecute witches and that she does not appreciate the relevancy of the issue to the welfare of the children.
Mr Stewart submits the subject documents are also relevant to the issue concerning the alleged complaints made by both parties concerning their failure to communicate.
Mr Stewart submits the subject documents show that when the mother is given the opportunity, and the obligation to advise the father of school activities, the father’s e-mail address does not appear on the e-mail transmissions that she sends to other parents.
The Court accepts that the subject documents are relevant to the issues the subject of determination identified above.
Bases to exclude the admission of otherwise relevant evidence
Mr Wong, Counsel for the mother, submits that the subject documents should be excluded as illegally or improperly obtained pursuant to s.138 of the Evidence Act1995 (Cth) which stipulates:
“(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”
Section 138 of the Evidence Act falls within Part 3.11 of that Act and accordingly is not one of the provisions which is said not to apply to child-related proceedings pursuant to s.69ZT, within Division 12A of Part VII of Family Law Act.
A basis for the s.138 Evidence Act exclusion is, Mr Wong submits, that the father has contravened an Australian law and in particular, s.308H of the Crimes Act1900 (NSW) and s.478.1 of the Criminal Code Act1995 (Cth) (this section is largely reproduced in s.478.1 of the Cybercrimes Act 2001 (Cth)) which are to the following effect:
“308H Unauthorised access to or modification of restricted data held in computer (summary offence)
(1) A person:
(a) who causes any unauthorised access to or modification of restricted data held in a computer, and
(b) who knows that the access or modification is unauthorised, and
(c) who intends to cause that access or modification,
is guilty of an offence.
Maximum penalty: Imprisonment for 2 years.
(2) An offence against this section is a summary offence.
(3) In this section:
"restricted data" means data held in a computer, being data to which access is restricted by an access control system associated with a function of the computer.
"data" includes:
(a) information in any form, or
(b) any program (or part of a program).
"data held in a computer" includes:
(a) data entered or copied into the computer, or
(b) data held in any removable data storage device for the time being in the computer, or
(c) data held in a data storage device on a computer network of which the computer forms part.
"data storage device" means any thing (for example a disk or file server) containing or designed to contain data for use by a computer.
The definition of “unauthorised access” is found in s.308B of the Crimes Act and is as follows:
“(1) For the purposes of this Part, access to or modification of data, or impairment of electronic communication, by a person is unauthorised if the person is not entitled to cause that access, modification or impairment.
(2) Any such access, modification or impairment is not unauthorised merely because the person has an ulterior purpose for that action.
(3) For the purposes of an offence under this Part, a person causes any such unauthorised access, modification or impairment if the person's conduct substantially contributes to the unauthorised access, modification or impairment.”
Section 308H is essentially repeated in section 478.1 of Criminal Code. The difference is that the jurisdiction of s.478.1 is triggered by s.478.1(1)(d)(iii) where one uses a telecommunications service to access the restricted data.
Section 478.1 of the Criminal Code is to the following effect:
478.1 Unauthorised access to, or modification of, restricted data
(1) A person is guilty of an offence if:
(a) the person causes any unauthorised access to, or modification of, restricted data; and
(b) the person intends to cause the access or modification; and
(c) the person knows that the access or modification is unauthorised; and
(d) one or more of the following applies:
(i) the restricted data is held in a Commonwealth computer;
(ii) the restricted data is held on behalf of the Commonwealth;
(iii) the access to, or modification of, the restricted data is caused by means of a carriage service.
Penalty: 2 years imprisonment.
(2) Absolute liability applies to paragraph (1)(d).
(3)In this section:
"restricted data" means data:
(a)held in a computer; and
(b) to which access is restricted by an access control system associated with a function of the computer.
A “carriage service” is defined as having the same meaning as in the Telecommunications Act 1997 (Cth) which is “a service for carrying communications by means of guided and/or unguided electromagnetic energy”.
The Cybercrimes Act uses the words “telecommunications service" in s.478.1(1)(d)(iii) which is defined as meaning “a service for carrying communications by means of guided or unguided electromagnetic energy or both”.
Section 476.2 of the Criminal Code (Cth) (s.308B of the Crimes Act 1900 (NSW)) defines unauthorised access, modification or impairment as:
1. In this Part
access to data held in a computer; or
modification of data held in a computer; or
the impairment of electronic communication to or from a computer; or
the impairment of the reliability, security or operation of any data held on a computer disk, credit card or other device used to store data by electronic means;
by a person is unauthorised if the person is not entitled to cause that access, modification or impairment.
2. Any such access, modification or impairment caused by the person is not unauthorised merely because he or she has an ulterior purpose for causing it.
3. For the purposes of an offence under this Part, a person causes any such unauthorised access, modification or impairment if the person's conduct substantially contributes to it.
4. For the purposes of subsection (1), if:
a person causes any access, modification or impairment of a kind mentioned in that subsection; and
the person does so:
(i) under a warrant issued under the law of the Commonwealth, a State or a Territory; or
(ii) under an emergency authorisation given to the person under Part 3 of the Surveillance Devices Act 2004 or under a law of a State or Territory that makes provision to similar effect; or
(iii) under a tracking device authorisation given to the person under section 39 of that Act;
the person is entitled to cause that access, modification or impairment.
Section 4(b)(i) referred to above appears to be the only part of section 4(b) reproduced in the Cybercrimes Act.
A further basis for the s.138 Evidence Act exclusion is that the subject documents were improperly obtained. Impropriety is not defined for the purposes of s.138. However, Odgers (7th Edition) states at page 652 that “Ultimately it is for the courts themselves to determine whether methods used to obtain evidence are “proper” or “improper”. Mason CJ, Deane and Dawson JJ in Ridgeway v The Queen (1995) 184 CLR 19 at 37 state:
“The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community. A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of the offence with which the accused is charged.”
Mr Wong in his submissions drew the Court’s attention to the case of Director of Public Prosecutions v Carr (2002) 127 A Crim R 151 where Smart AJ discussed the recommendations of the Australian Law Reform Commission (“ALRC”) report which preceded the Evidence Act 1995 (Cth) and which were subsequently embodied in s.138 as follows:
“31 The Australian Law Reform Commission Report which preceded the Evidence Act 1995 reviewed the then existing discretion to exclude improperly obtained evidence including the public interests supporting admission and those supporting exclusion. The ALRC did not discuss what ‘improperly’ meant. It recommended that an approach based on the existing discretionary approach be adopted. It suggested that the conflicting concerns in this area and the wide variety of circumstances necessitated such an approach. It proposed some changes. It recommended that the nature of the conflicting interests which should be balanced should be indicated precisely and the articulation of factors which should be taken into account in the exercise of the discretion. The report adopted the comment of Stephen and Aickin JJ in Bunning v Cross (1978) 141 CLR 54 at 74 that what is involved ‘is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy.’
32 The report listed a number of factors which it suggested were relevant to the balancing discretion. It was pointed out that if the impropriety was the result of a mistaken belief by an officer that he was entitled to do what he did this would tend to reduce the seriousness of the misconduct. However, it was noted that it was largely irrelevant to the criminal suspect that his rights were infringed deliberately or mistakenly. He has suffered the same damage regardless of the mental state of the officer.
33 The recommendations of the Law Reform Commission have largely been embodied in s.138. Among the matters that the Court is to take into account under s.138 is the nature of the relevant offence and the nature of the subject matter of the proceeding and the gravity of the impropriety.”
Mr Wong submits that by using the mother’s password and accessing the subject documents, the father has contravened the relevant statutory provisions referred to above.
Mr Stewart submits that the evidence of the father was that he had the password to the e-mail site and had done so since the separation of the parties. The mother had not changed the password.
Mr Stewart submits further that the onus of proof lies upon the mother to prove that the access by the father is unauthorised. It is not a matter for the father to prove authorisation. The Court accepts this submission.
Mr Wong submits, however, that the father conceded in cross-examination that he “more than likely” did not have such authorisation after separation. The Court notes that the father was granted a Certificate under s.128 of the Evidence Act in respect of his answers to questions concerning the subject documents. Furthermore, whilst the father asserts that the mother left herself open to such use by leaving documentation relating to her account lying around, there was no evidence given by the father to suggest that that the mother positively or constructively gave the father authorisation to access her e-mail. The subject documents are dated between 6 March 2008 and 15 August 2008 some 2 years after the date of separation. Accordingly, Mr Wong submits the father was not entitled to access the data and the Court so finds. Mr Wong further submits that the father when asked what entitlement he had to view e-mails, in particular the mother’s communications with her lawyers, he responded “to assist my children”. The Court accepts that this subjective justification, in itself, does not create any entitlement for the father to access the subject documents.
With respect to the illegality basis, whilst the Court finds the father was not authorised to access the subject documents, the Court is of the view that there is insufficient relevant evidence before it to determine whether the subject documents constituted restricted data held in a computer within the relevant statutory definitions of s.308H and s.478.1(1)(a) or indeed whether the access was caused by means of a carriage service and/or telecommunications service within s478.1(1)(d)(iii) of the relevant statute. Mr Wong’s submissions that the information, the basis of the subject documents was “obviously maintained by Hotmail in a disk server somewhere, probably not in the jurisdiction of Australia” …and that “…data held in a computer again goes back to the general definition of data held in a computer including those in a storage device such as a file server…” are exactly that, that is, they are submissions not evidence.
Mr Stewart submitted that if it is arguable that the father has offended s.308H of the Crimes Act, then as a result of s.308B(3) the mother has done so as well by not changing the password. Based on the Court’s finding at paragraph 26 above, the Court does not need to further consider this submission.
With respect to the impropriety basis, Mr Wong submits that whilst the passage referred to at paragraph 20 above relates to police conduct, this Court should nevertheless determine what is “improper” having regard to the circumstances of the case and the minimum standards for a litigant in proceedings under the Family Law Act.
Mr Wong submits that a relevant consideration is the intent of the person who obtained the evidence and that the Court would be more likely to admit evidence where the person who obtained the evidence was mistaken as to whether they were acting improperly or not. In this case, Mr Wong submits that the father knew that he was obtaining the evidence without the mother’s consent and therefore there can be no argument of mistake. The Court accepts this submission.
Whilst Mr Wong submitted that it was open for the father to demand production of the documentation or to issue subpoenae, the Court is of the view that without more, such steps would have been open to a claim that they were no more than a fishing expedition.
Mr Wong submits that the Court could and should not condone behaviour of this type by a litigant in Family Law Act proceedings. The risks of such conduct are highlighted in this case where it would appear the father has had access to other documents which may attract legal professional privilege. Mr Wong submits that the flood gates will open to improper behaviour if the Court allows the father to adduce evidence obtained in this manner. Odgers, at page 656 (7th Edition), notes the considerations listed by ALRC regarding “undesirability” which related to Police investigations, as being:
Discipline police for illegality or impropriety;
Deter future illegality;
Protection of individual rights;
Fairness at trial;
Executive and judicial legitimacy;
Encourage other methods of police investigation.
Mr Wong submits that the considerations detailed by the ALRC are, in part, applicable in a modified form to this case. He submits that the Court should consider:
The deterrent effect of refusing to allow such evidence;
The need to protect the privacy of parties to litigation in Family Law Act matters in circumstances already fraught with high conflict;
Parties should have confidence that their personal communications with their friends, loved ones and legal representatives should not be the subject of unauthorised inspection by other litigants;
The Court should encourage litigants to follow legitimate methods of investigation.These are all matters the Court has considered in exercising its discretion. They are general matters, which must be balanced against the specific need to give procedural fairness to a specific witness, in this case, the father. Further, these are matters which can be considered under s.138(3)(c) and (d) of the Evidence Act. The Court has also considered the other matters specified in s.138(3) in exercising its discretion and in particular the probative value and the importance of the evidence referred to above together with the difficulty of obtaining the evidence.
Mr Stewart submits that the subject documents, as soon as they became part of the legal debate, provided his client with an entitlement to have that material put before the Court so that the proper context of any questions put to the father may be assessed. Mr Stewart submits that Mr Wong can’t say "Well, I will ask a few questions". Mr Stewart submitted that Mr Wong’s questions of his client went to the contents of the subject documents, because as soon as the questions were asked about their source and the submission was made that the material was obtained in an illegal fashion, his client was the subject of potential criticism about that, then they became tenderable as part of his client's case. Mr Stewart submitted that Mr Wong’s questions went beyond simply identifying the documents, but went to the substance of the documents or in this case the allegations made. This proposition appears to flow from the general rule that if a witness is cross-examined in relation to a document which goes beyond the parts which are used for refreshing the memory of the witness, then the party calling the witness may have the whole document admitted into evidence.
Mr Wong argued that he did not cross-examine Mr Anders about the contents of the subject documents. As such, he submits the documents would not otherwise go into evidence, yet he submits he would still be entitled to submit that the father should be the subject of criticism on his own admission against his interest of using the wife’s password and accessing her emails, the question of the substance of the subject documents being irrelevant to that issue.
Against that, Mr Stewart submits that the questions that were put by
Mr Wong would suggest that in some way the father should be criticised for his gaining access and seeking to tender that material, and as soon as that type of complaint is made then the father, “as a matter of fairness, must be given the opportunity of putting [that] material before the Court.”. There is force in that submission. Similarly, the father’s answer which the Court took as not simply being responsive to the question concerning his reasons for accessing legal communications but to the totality of the documents accessed, including the subject documents, namely “to assist my children” needs to be assessed against the content of the subject documents sought to be tendered.
Mr Wong addressed the content of the subject documents in his oral submissions which were to the following effect:
“in summary… they …reference …the mother complaining about witches being `subject to persecution in the Family Court or being cross-examined in the Family Court and the issue of her being interested in that... The mother having a conversation with her partner, Mr G or Dr G, about the payment of school fees and where she refers to the father in a pejorative term. An email sent by the mother to members of the school community regarding a musical and an email between the mother and her partner - regarding the mother and her partner regarding some sexual things involving themselves.”
Mr Wong submits that the subject documents do not deliver determinative evidence and for the most part, are an attempt to smear. He submits that the probative value of this evidence is limited so that the desirability of admitting such material is not outweighed by the undesirability of admitting the material. The Court is of the view that there is sufficient probative value in the material for the material to be otherwise admitted and in fairness to the father for the reasons set out above the Court will exercise its discretion to admit the subject documents.
The Court is of the view that the emails should therefore be admitted into evidence and will be so admitted as Exhibit K.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of FM Kemp FM
Associate: Joanne Balson
Date: 15 October 2008
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