Badger and Badger and Ors - [2013] FMCAfam 124

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BADGER & BADGER & ORS

[2013] FMCAfam 124

FAMILY LAW – Illegally taped telephone conversation by off duty police officer – off duty police to be held to a higher standard than that of a member of the public – exclusion improperly or illegally obtained evidence.

Family Law Act 1975, s.79
Telecommunications Act1997 (Cth), s.7
Evidence Act 1995, s.138
Federal Magistrates Court Rules2001
New South Wales Barristers’ Rules 2011
International Covenant on Civil and Political Rights, Article 17

Parker v Comptroller–General of Customs 2009 HCA 7
Russell & Russell [2012] FamCA 99
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Browne v. Dunn (1893) 6 R. 67
Laurendi v Boral Contracting Pty Ltd [2002] WASCA 297
Mackenzie v Albany Finance Limited [2003] WASC 100
Reid v Kerr (1974) 9 SASR 367
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Myers v. Elman [1940] AC 282
Wakely v R (1990) 93 ALR 79
Henry v Ryan, Supreme Court of Tasmania, LCA 49/1963
Gunston v Commissioner of Police T9986 of 2002

Applicant:

MS BADGER

First Respondent:

MR N BADGER

Litigation Guardian:

MR G BADGER

Second Respondent:

MS CADIFF

Third Respondent:

MR CADIFF

File Number:

NCC 3245 of 2011

Judgment of:

Myers FM

Hearing date:

8 November 2012

Date of Last Submission:

8 November 2012

Delivered at:

Newcastle

Delivered on:

14 February 2013

REPRESENTATION

Solicitors for the Applicant:

Fowler Predny Solicitors

Counsel for the first Respondent and Litigation guardian:

Mr Cook

Solicitors for the first Respondent and Litigation guardian:

Atkinson Vinden

Counsel for the second and third Respondents:

Ms Burns

Solicitors for the second and third Respondents:

Craney Family Solicitors

ORDERS

That the transcript of a taped telephone discussion between the litigation guardian and the second respondent found at paragraphs 44 -45 of the affidavit of Mr G Badger sworn 25 May 2012 and filed 25 May 2012 is inadmissible as evidence in the proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Badger & Badger & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

NCC 3245 of 2011

MS BADGER

Applicant

And

MR N BADGER

First Respondent

MR G BADGER

Litigation Guardian

MS CADIFF

Second Respondent

MR CADIFF

Third Respondent

REASONS FOR JUDGMENT

Introduction

This is a matter that came before the court for argument in respect of evidentiary objections to material contained within the affidavits of the parties in property proceedings.
The purpose of this judgement is to determine whether the court should allow into evidence the transcript of a taped telephone conversation that took place between the litigation guardian for the respondent husband and the second respondent in the proceedings.
For the purposes of determining the issue it is not important to recite the history of the proceedings in full. The short facts in the matter are that on 15 December 2011 an initiating application seeking orders for a property settlement was filed by the wife who is aged 87 years. The husband is aged 85 Years. The wife asserts that the parties were in a relationship from November 2000, married [in] 2010 and separated on 4 April 2011. Filed in the proceedings on behalf of the husband is an affidavit sworn by Dr W a Medical Practitioner specialising as a Geriatrician and Physician.
Dr W clinically assessed the husband on 13 February 2012 finding at page 14 of his report that the husband
“…like many persons with Moderate Dementia of the Alzheimer’s type (i.e. CRD 2.0), would be more readily influenced by other persons due to his cognitive difficulties.”.
Given the terms of the report the court accepted that the husband was a person who needed a litigation guardian where the court was satisfied that the husband did not understand the nature and possible consequences of the proceedings and was not capable of adequately conducting or giving adequate instructions for the conduct of the proceedings.
In accordance with the requirements set out at Regulation 11.08 of the Federal Magistrates Court Rules2001, the husband’s son Mr G Badger, a Police Officer, was joined to the proceedings as the husband’s litigation guardian. Filed in the court on 25 May 2012 was an affidavit of the litigation guardian sworn 25 May 2012. The litigation guardian deposes that following his father’s separation from the wife the husband told him that the wife’s daughter Ms Cadiff, who was born to the wife from an earlier relationship, and the wife’s son-in-law Mr Cadiff, owed the father, what is termed at paragraph 41 of the litigation guardian’s affidavit as “a lot of money”.
The litigation guardian deposes to then having a number of telephone conversations with Ms Cadiff.
At paragraph 44 of the litigation guardian’s affidavit the litigation guardian deposes:
“On 3 May 2011 I recall receiving a telephone call from

Ms Cadiff. I tapped this telephone conversation. I did not tell

Ms Cadiff that I was doing so. I do recall in around 2011 having a conversation with Ms Cadiff in which she did say words to the effect: “You can tape what we say” but I do not recall if this conversation had occurred prior to 3 May 2011. I did want to be clear in what Ms Cadiff said because my father’s dementia meant he was unlikely to be able to tell me what happened. I have the tape in my possession should the court wish to hear it. I have set out the transcribed conversation below.”
The transcript of the conversation contained at paragraphs 44-45 is of some considerable length and starts at page 10 and concludes at page 21 of the litigation guardian’s said affidavit.
Ms Cadiff and Mr Cadiff have been joined to the proceedings and are named as the second and third respondents respectively. The husband seeks orders for a judgement against the second and third respondents in the sum of $210,000.00 or in the alternative a declaration that the husband was induced by way of undue influence to pay to the second and third respondents the sum of $210,000.00 and that such transaction be declared to be null and void and be set aside.
Counsel for the second and third respondents’ submits that the evidence in the form of a transcript of the telephone conversation should be excluded as the telephone conversation was tapped without the permission of the second respondent and that the evidence was not properly obtained. Counsel for litigation guardian on behalf of the husband, submits that the evidence ought to be allowed in circumstances where it was not conceded the taping of the conversation was done improperly or illegally, but was done with the permission of the third respondent. I have considered the submissions of counsel for the respective parties in this matter.
A consideration of whether the telephone call was tapped without the permission of the second respondent and whether the evidence in the form of a transcribed recording ought to properly be allowed or excluded is examined in the following paragraphs.
Section 138 of the Evidence Act1995 provides that the court has a discretion to exclude improperly or illegally obtained evidence and is set out below:
“S.138 Exclusion of improperly or illegally obtained evidence
(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.”
In determining the issue before the court it is important to first have regard to whether the evidence had been improperly or illegally obtained and if improperly or illegally obtained then consider whether the evidence ought to be admitted. This approach found favour in the decision of Parker v Comptroller–General of Customs 2009 HCA 7 at 26 in which French CJ discussed the interpretation and then approach to be taken by the court when looking at whether evidence should be excluded pursuant to the provisions of section 138 of the Evidence Act1995 and held:
“The term "Australian law" is defined in the Dictionary to the Evidence Act as a "law of the Commonwealth, a State or a Territory". The word "law" is defined in cl 9 of Pt 2 of the Dictionary:
"(1) A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place.

(2) A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia."
There is no definition of "impropriety" or "contravention" in the Act.
Section 138 was one of the provisions of what became the Evidence Act 1995 (Cth) and the New South Wales Evidence Act recommended by the Law Reform Commission in its Report No 38, published in 1987. The proposed cl 119, as it was numbered in the draft Act, was explained by the Commission[22]:
"This clause provides a discretionary exclusion for evidence obtained improperly, unlawfully or in consequence of an impropriety or breach of the law. It applies in both civil and criminal trials. It reflects, with some modifications, the present exclusionary discretion known as the rule in Bunning v Cross. The main difference is the placing of the onus of proof on the party seeking to have the illegally or improperly obtained evidence admitted."
The party seeking to exclude the evidence has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the court that it should be admitted. There is thus a two stage process[23]. The party seeking admission of the evidence has the burden of proof of facts relevant to matters weighing in favour of admission. It also has the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained.
The meanings to be accorded to the terms "improperly", "impropriety" and "contravention" in s 138 were not illuminated by the Law Reform Commission report. The relevant ordinary meanings of "improper" include "not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong"[24]. "Contravention" refers to "[t]he action of contravening or going counter to; violation, infringement, transgression"[25].
Without essaying an exhaustive definition, the core meaning of "contravention" involves disobedience of a command expressed in a rule of law which may be statutory or non-statutory. It involves doing that which is forbidden by law or failing to do that which is required by law to be done. Mere failure to satisfy a condition necessary for the exercise of a statutory power is not a contravention. Nor would such a failure readily be characterised as "impropriety" although that word does cover a wider range of conduct than the word "contravention".”
When turning to the issue of whether the evidence was improperly or illegally obtained the court notes the submissions of counsel for the second and third respondents to the effect that the telephone conversation between the litigation guardian and the second respondent was tapped by the litigation guardian, who is a police officer, without the second respondent’s knowledge or permission.
Counsel for the litigation guardian and counsel for the second and third respondents made submissions with respect to whether the taping of the conversation breached the provisions of the Telecommunications Act1997 (Cth).
In Russell & Russell [2012] FamCA 99 at 410 Young J considered the legislative framework within the Telecommunications Act1997 relating to the taping of conversations and how the provisions within that Act intersect with S.138 of the Evidence Act1995 and held:
“410. In determining whether the husband obtained the evidence in contravention of an Australian law it is necessary to evaluate the relevant provisions of the Telecommunications Act. Sections 6(1) of the Telecommunications Act provide that:
(1) For the purposes of this Act, but subject to this section, interception of a communication passing over a Telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that Telecommunications system without the knowledge of the person making the communication.
411. Section 7 of the Telecommunications Act provides that:
(1) A person shall not:
(a) intercept;
(b) authorize, suffer or permit another person to intercept; or
(c) do any act or thing that will enable him or her or another person to intercept;
a communication passing over a Telecommunications system.
412.Section 63(1) provides that:
(1) Subject to this Part, a person shall not, after the commencement of this Part:
(a) communicate to another person, make use of, or make a record of; or
(b) give in evidence in a proceeding; lawfully intercepted information or information obtained by intercepting a communication in contravention of subsection 7(1).
413. Section 105 of the Telecommunications Act states that a contravention of ss 7 and 63 is an offence and provides that:
(1) A person who contravenes subsection 7(1) or section 63 is guilty of an offence against that subsection or section.
(2) An offence against subsection 7(1) or section 63 is an indictable offence and, subject to this section, is punishable on conviction by imprisonment for a period not exceeding 2 years....
414. Civil remedies are available under the Telecommunications Act to an aggrieved person for a breach of ss 7 and/or 63 and in such proceedings s 76A provides that:
(1) A person may give information obtained by intercepting a communication in contravention of subsection 7(1) in evidence in a proceeding by way of an application under section 107A for remedial relief in respect of:
(a) the interception; or
(b) the communication (in contravention of section 63) of information obtained by the interception...
415. In relation to the question of admissibility, s 77of the Telecommunications Act provides that:
(1) Where a communication passing over a Telecommunications system has been intercepted, whether or not in contravention of subsection 7(1), then:
(a) subject to paragraph (b), neither information, nor a record, obtained by the interception is admissible in evidence in a proceeding except in so far as section 63A, 74, 75, 75A, 76 or 76A permits a person to give in evidence in that proceeding information so obtained; and
(b) for the purpose of determining the extent (if any) to which section 63A, 74, 75, 75A, 76 or 76A permits a person to give in evidence in a proceeding information obtained by the interception:
(i) a person may communicate to another person, make use of, make a record of, or give in evidence in the last-mentioned proceeding, information so obtained; and
(ii) information, or a record, so obtained is admissible in evidence in the last-mentioned proceeding.
416. Sections 63A, 74, 75, 75A, 76 and 76A are not applicable to this proceeding and would not render the improperly obtained evidence admissible. Further, s 78 of the Telecommunications Act provides that:
Nothing in this Part renders information, or a restricted record, admissible in evidence in a proceeding to a greater extent than it would have been admissible in evidence in that proceeding if this Part had not been enacted.
417. Section 8 of the Act states that the Telecommunications Act “does not affect the operation of the provisions of any other Act...”. Accordingly, s 138 of the Evidence Act provides that evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in contravention of the Telecommunications Act.”
A consideration of the Telecommunications Act 1997 and the review of that legislation by Young J in Russell & Russell [2012] FamCA 99 allows the court to find that should the litigation guardian have tapped his telephone conversation with the second respondent, without the second respondent’s permission, then the tapping of such conversation would have amounted to an offence under the provisions of the Telecommunications Act 1997.
It was submitted by counsel for the litigation guardian that the taping of the conversation was done with the permission of the second respondent. In support of such contention counsel for the litigation guardian drew attention to paragraph 44 of the litigation guardian’s affidavit in which the litigation guardian asserts the second respondent said to him “You can tape what we say” and further that as the second respondent failed to contradict the assertion in her affidavit material the court should accept that permission had been given and that the provisions of Section 138 of the Evidence Act1995 need not apply.
It is the view of the court that such submissions, by counsel for the litigation guardian, are perhaps an oversimplification of the facts in the matter. The parties are pursuant to the orders made by the court still able to file consolidated final trial affidavits in the proceedings. Counsel for the second and third respondent argued that no permission was granted by the second respondent to the litigation guardian to tape record the telephone conversation, subject to any argument as to whether the trial affidavit could only contain material consolidated from previous affidavits or fresh material it remains open for such allegations to be refuted.
The court does not accept that the second respondent’s failure to file an affidavit setting out that she did not provide permission for the conversation to be recorded should allow the court in the circumstances of this case to make a finding that permission was given.
When considering the evidence set out at paragraph 44 of the litigation guardian’s affidavit (as set out at paragraph 7 of this judgement above) the court is not satisfied that the second respondent had provided consent to the litigation guardian to tape the telephone conversation in circumstances where the litigation guardian deposed
“I recall receiving a telephone call from Ms Cadiff. I tapped this telephone conversation. I did not tell Ms Cadiff that I was doing so.”

In respect of the litigation guardian being granted ongoing permission to tape conversations the litigation guardian states
“ I do recall in around 2011 having a conversation with

Ms Cadiff in which she did say words to the effect: “You can tape what we say” but I do not recall if this conversation had occurred prior to 3 May 2011.”
The evidence fails to establish that permission was granted at the time of the conversation or at a time earlier than when the conversation took place. The court therefore finds that the conversation taped between the litigation guardian and the second respondent was done so without the permission of the second respondent and thus offends the provisions of section 7 of the Telecommunications Act 1997. The court finds that the evidence had been improperly and illegally obtained
In Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 37 High Court (Barwick C.J. Stephen, Jacobs, Murphy and Aickin JJ.) considered the issue of illegally obtained evidence and held:
“37.The second matter to be noted is that the nature of the illegality does not in this case affect the cogency of the evidence so obtained. Indeed the situation is unusual in that the evidence, if admitted, is conclusive not of what it demonstrates itself but of guilt of the statutory offence of driving while under the influence of alcohol to an extent rendering him incapable of having proper control of his vehicle. (at p79)
38. To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it. For this reason cogency should, generally, be allowed to play no part in the exercise of discretion where the illegality involved in procuring it is intentional or reckless. To this there will no doubt be exceptions: for example where the evidence is both vital to conviction and is of a perishable or evanescent nature, so that if there be any delay in securing it, it will have ceased to exist. (at p79)
39. Where, as here, the illegality arises only from mistake, and is neither deliberate nor reckless, cogency is one of the factors to which regard should be had. It bears upon one of the competing policy considerations, the desirability of bringing wrongdoers to conviction. If other equally cogent evidence, untainted by any illegality, is available to the prosecution at the trial the case for the admission of evidence illegally obtained will be the weaker.”
The statutory provisions relating to the admission of improperly or illegally obtained evidence is found at section 138 of the Evidence Act1995. That section makes it clear that such evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting such evidence. Without prescriptive limitation the court is required to take into account eight separate matters. Those matters are explored below.
The court must consider the probative value of the evidence. That is, is the evidence sufficiently useful to prove something important in the case. The court must also consider the importance of the evidence in the proceedings and the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceedings.
When dealing with the first three matters the court accepts the submissions of counsel for the case guardian in that the evidence contained in the transcript of the telephone conversation is probative and is important to the question to be determined before the court being ultimately whether the money paid by the husband to the second and third respondents was a loan or a gift. The conversation goes directly to the cause of action in the proceeding that being the recovery of monies from the second and third respondents with the effect that if orders were granted in the terms sought by the husband then such monies are to be paid by the second and third respondents into the matrimonial property pool for division between the parties pursuant to section 79 of the Family Law Act1975. Whilst the above is true the court does not take the view that if the first three matters result in the court finding that the evidence is probative and important in the context of the orders being sought that the evidence ought to be simply allowed in. The court takes heed of the view expressed by the High Court in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 37 in that it is erroneous to think that “if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it”.
The court must also consider the gravity of the impropriety or contravention, and whether the impropriety or contravention was deliberate or reckless.
When dealing with the fourth and fifth matters the court is mindful that the offence is one found within Commonwealth statutory provisions relating to telephone communication. Section 105 of the Telecommunications Act1997 states in part that a person who contravenes subsection 7(1) is guilty of an offence against that subsection; that an offence against subsection 7(1) is an indictable offence and is punishable on conviction by imprisonment for a period not exceeding 2 years. The court takes the view that the illegality occasioned when taping the telephone conversation carries with it potentially grave consequences. Having read the affidavit of the litigation guardian the court forms the view that the recording of the telephone conversation was a deliberate act.
The sixth matter for consideration is that of 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. The International Covenant on Civil and Political Rights was conceived into being on 19 December 1966 and entered into force in Australia (except Article 41) on 13 November 1980.
Article 17 of the International Covenant on Civil and Political Rights provides; (1) no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation; and (2) that everyone has the right to the protection of the law against such interference or attacks.
In 1988, the Office of the United Nations High Commissioner for Human Rights published General Comment Number 16, for the purposes of clarifying how the United Nations interprets Article 17. The court notes that General Comment Number 16 provides that Article 17 should protect a nation’s citizens against all interferences and attacks on privacy, family, home or correspondence, “whether they emanate from State authorities or from natural or legal persons”. In consequence all member states are required “to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of this right”. The court further notes that “state parties are under a duty themselves not to engage in interferences inconsistent with Article 17 of the Covenant and to provide the legislative framework prohibiting such acts by natural or legal persons”.
Section 7 of the Telecommunications Act1997 provides a protection of the type required by Article 17 of the International Covenant on Civil and Political Rights. The court finds that the illegal taping of a telephone discussion by the litigation guardian is an impropriety or contravention contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights. This finding of itself does not preclude the court from allowing such evidence, but it is of some weight in the argument against the admission of the transcript of the tape recording into evidence.
When looking at the seventh matter the court is not aware whether any other proceeding (whether or not in a court) have been or are likely to be taken in relation to the litigation guardian’s breach of section 7 of the Telecommunication Act 1997.
The eighth matter for consideration is that of the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
It is of some note in these proceedings that objections to evidence have been dealt with (without objection by the parties to the court dealing with the objections prior to the hearing), by the parties at a time prior to the parties filing what can best be described as final trial affidavits. It is the view of the court that (potentially with the requirement for leaving being granted, noting that the trial directions allowed the filing of final ‘consolidated’ affidavits 14 days prior to the hearing) it would be open to the litigation guardian to place the conversation into evidence if such evidence was provided in proper form in his final consolidated trial affidavit in terms of his recollection of a conversation that he had engaged in with the second respondent.
The inclusions of the evidence of the conversation in the final consolidated trial affidavit of the litigation guardian could have significant consequences not only to the outcome of the proceedings but the manner in which the trial might be conducted on behalf of the second and third respondents.
Consistent with the principle in Browne v. Dunn (1893) 6 R. 67, H.L it is would be necessary that counsel for the second and third respondents put to the litigation guardian contentions about the contents of the conversation between the litigation guardian and second respondent should the second respondent seek to proffer a version of the conversation that differed from that as potentially stated by the litigation guardian.
The reasoning behind the principle in Browne v. Dunn (1893) 6 R. 67 and later consideration of such principle by various courts justifies a long standing view of the courts, with limited exception (see Laurendi v Boral Contracting Pty Ltd [2002] WASCA 297; Mackenzie v Albany Finance Limited [2003] WASC 100), that a cross examiner is not entitled to rely on evidence that contradicts the testimony of a witness without putting such evidence to the witness affording them the opportunity to justify the contradiction.
Commenting on such issue Lord Herschell LC in Browne v. Dunn (1893) 6 R. 67 at 70 stated:
“... I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”
In Reid v Kerr (1974) 9 SASR 367 at 373-4 Wells J stated:
“... a judge (or a jury) is entitled to have presented to him (or them) issues of facts that are well and truly joined on the evidence; there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne v Dunn has not been observed, have not been brought into direct opposition, and serenely pass one another like two trains in the night”.
In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16 Hunt observed:
“It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matter, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the inference sought to be drawn.”
In order to comply with the principle in Browne v. Dunn (1893) 6 R. 67 should counsel for the second and third respondents seek to challenge the evidence of the conversation it would be necessary for counsel to put to litigation guardian a version of what his or her client contended was the correct version of the conversation or perhaps that the conversation did not take place in whole or in part.
While counsel appearing before the court has a duty to the court they are afforded significant discretion as to the manner in which they conduct their client’s case. In Wakely v R (1990) 93 ALR 79 at 86 the high court held:
“That duty is the more onerous because counsel’s discretion cannot be fully supervised by the presiding judge. Of course, there may come a stage when it is clear that the discretion is not being properly exercised. It is at that stage that the judge should intervene to prevent both an undue strain being imposed on the witness and an undue prolongation of the expensive procedure of hearing and determining a case. But until that stage is reached – and it is for the judge to ensure that the stage is not passed – the court is, to an extent, in the hands of cross-examining counsel.”
Although counsel has significant discretion it is not open to counsel to put something to a witness in cross examination counsel know not to be true.
Rule 26 of the New South Wales Barristers’ Rules 2011 sets out that a barrister must not deceive or knowingly or recklessly mislead the Court. While rule 27 provides a barrister must take all necessary steps to correct any misleading statement made by the barrister to a court as soon as possible after the barrister becomes aware that the statement was misleading.
Rule 78 of the New South Wales Barristers’ Rules 2011 provides:
A barrister who, as a result of information provided by the client or a witness called on behalf of the client, learns during a hearing or after judgment or decision is reserved and while it remains pending, that the client or a witness called on behalf of the client:
(a) has lied in a material particular to the court or has procured another person to lie to the court; or
(b) has falsified or procured another person to falsify in any way a document which has been tendered; or
(c) has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court;
must refuse to take any further part in the case unless the client authorises the barrister to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the barrister to do so but otherwise may not inform the court of the lie, falsification or suppression.

Rule 63 of the New South Wales Barristers’ Rules 2011 provides:
A barrister must not allege any matter of fact in:
(a) any court document settled by the barrister;
(b) any submission during any hearing;
(c) the course of an opening address; or
(d) the course of a closing address or submission on the evidence;
unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so.
A solicitor acting on behalf of the second and third respondents might face difficulties with respect to the preparation of their client’s case where the second and third respondents might seek to reject the contents of the conversation in whole, in part or proffer a version that differs to that of the litigation guardian. In Myers v. Elman [1940] AC 282 the House of Lords succinctly set out what a solicitor could and could not do in litigation. In the case it was alleged that a solicitor had filed defences, which he must have known, or suspected to be false. The House of Lords held that a solicitor:
“…can not simply allow the client to make whatever affidavit or documents he thinks fit, nor can he escape the responsibility of careful investigation or supervision. If the client will not give him the information which he is entitled to require, or if the client insists on swearing an affidavit which the solicitor knows to be imperfect, the solicitor’s duty is to withdraw from the case. A solicitor who has innocently put upon the file an affidavit by his client which he subsequently discovers to be false, owes a duty to the Court to put the matter right at the earliest moment if he continues to act as solicitor on the record.”
When considering the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law the court finds that the evidence can be obtained without impropriety or contravention. Difficulties may arise of an ethical nature to those acting or appearing on behalf of the second and third respondents should the evidence be made available via the litigation guardian’s recollections contained in what may be the litigation guardian’s final consolidated trial affidavit. Such difficulties do not however persuade the court that the evidence of the tapped conversation should be admitted into evidence.
Pursuant to section 138(3) of the Evidence Act1995 the court is able to consider additional matters. Counsel for the second and third respondents submit that as the litigation guardian was a police officer he should be held to a higher standard than that of an ordinary member of the public.
Submissions were made by counsel for the second and third respondents that the litigation guardian would or should have know as a result of his employment that it is illegal to record a telephone conversation without permission. In effect counsel for the second and third respondent is asking that the court consider a subjective trait or feature of the litigation guardian. Counsel for the second and third respondents offered no case law in support of the argument nonetheless it is the view of the court that the court is able to consider a subjective trait or feature of the litigation guardian, namely the fact that he is a police officer. It should be noted that no argument was advanced that the recording was made at any time other than when the litigation guardian was off duty.
The issue of whether an off duty police officer is to be held to a higher ethical or moral standard in the way in which they conduct their affairs while off duty has been the subject of consideration by various courts. In Henry v Ryan, Supreme Court of Tasmania, LCA 49/1963 a police officer discovered in the grounds of a girls school while off duty, wearing only his underpants, was found guilty of misconduct and terminated. When reviewing the issues relating to off duty conduct by police in the case Burbury CJ stated:
“Many of the powers of a police officer are exercised by him by virtue of the independent public office he holds and cannot be exercised on the responsibility of any person but himself. His duties are of a public nature and over a wide range of matters affecting the public he exercises original and not delegated authority ... Discreditable conduct in his private life may therefore clearly affect his status and authority as a police officer in the discharge of his public duties and in his relations with the public. Misconduct in his private life by a person discharging public or professional duties may be destructive of his authority and influence and thus unfit him to continue in his office or profession.”

In the decision of Gunston v Commissioner of Police T9986 of 2002 before the Tasmanian Industrial Commission, Commissioner Abey held at para.154:
“From the evidence of virtually all the police witnesses, it is clear that the requirement for high standards in all facets of police life has a heavy emphasis in training and is well understood by police officers. I also accept that Inspector Bonde reinforced this teaching, particularly as it applied to off duty behaviour, for all police officers stationed at Queenstown, including Mr Gunston.
[155] What is less clear is how these "standards" are defined. On any reasonable test, the required standard for off duty behaviour is something short of monastic teetotalism.”
During the course of the hearing in Gunston v Commissioner of Police T9986 of 2002 evidence was given by the then acting Tasmanian Commissioner of Police, Commissioner McCreadie. Commissioner Abey incorporated the following exchange been counsel and Commissioner McCreadie in his judgment at para.151:
"Commissioner, can you just outline your expectations concerning the conduct of police officers both on duty and off duty?............ Well, it's commonly held that the community entrusts law enforcement officers with extraordinary powers that don't flow to most other members of the community and as a result of that I've always held the view that the community is entitled to expect a very high standard of behaviour and to be able to maintain competency in individuals and the organisation to manage their responsibilities around the oath of office of constable. So, I think, because the opportunity to be a sworn member is a voluntary act, that it is commonly held that you forego the right to act in an improper way at any time.
So the standards you expect of police officers, they are comparable in respect of off duty behaviour to on duty behaviour?............ Yes. When I say that, I'm talking about conduct that's likely to bring the service into significant disrepute. That's really the issue, I guess. I'm not moralising. It's about maintaining standards that won't and the expectation is that that is a full-time commitment."
Police officers are largely well respected by the community because of the position they hold. That respect is afforded to police officers whist on duty and to a certain extent while off duty. In return for that respect the community is entitled to expect a higher standard of behaviour from police officers while off duty from that of the general public. It is the view of this court the required standard for off duty behaviour requires a police officer while off duty not to engage in conduct or contravene a law in a way that damages the reputation or credibility of the Police Service and not to engage in behaviour that could lead to a refusal, reluctance, or inability of other police officers to work with the officer. It remains incumbent on all police officers to consider the manner in which they conduct themselves and their affairs whist off duty lest their conduct be weighed, measured and found wanting.
Whist it has been necessary to consider a subjective trait or feature of the litigation guardian by virtue of the submissions made by counsel for the second and third respondents the court does not form the view that as the evidence was obtained improperly or in contravention of an Australian law by a person whom the public are entitled to expect a higher moral standard that of itself should carry significant weight when tipping the balance as to whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
When considering the provisions of the Telecommunications Act1997 the court is satisfied that the transcript of the telephone conversation between the litigation guardian and the second respondent was obtained improperly or in contravention of an Australian law. Ultimately having regard to those matters set out at section 138 of the Evidence Act1995 particularly having regard to sub-sections 138(3)(a)-(h) the court finds the evidence in the form of a transcript of the conversation between the litigation guardian and the second respondent is not to be admitted in circumstances where the desirability of admitting the evidence does not in the mind of the court outweigh the undesirability of admitting evidence.
Perhaps Sir Garfield Barwick as he was then the Attorney-General of Australia delivering a second reading speech introducing a bill preventing police from covertly recording telephone conversations summed up the issue of the recording of telephone discussions best when he said:
Mr Speaker, eavesdropping is abhorrent to us as a people. Not one of us, I am sure, would fail to recoil from the thought that a citizen's privacy could lightly be invaded. Indeed, many citizens no doubt feel that far too many intrusions into our privacy are permitted to be made in these times with complete impunity. Many things which might fairly be regarded as personal and of no public consequence appear in print without the citizen's permission and without his encouragement, but in particular all of us, I think, dislike the feeling that we may be overheard and that what we wish to say may reach ears for which we did not intend the expression of our thought. Much of our normal life depends on the confidence we can repose in those to whom we lay bare our sentiments and opinions, with and through whom we wish to communicate.” (Hansard House of Representatives No.18 Second Reading Speech, Telephonic Communication (Interception) Bill 1960, 5 May 1960 at 1423)
For the reasons above the court makes the following orders.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Myers FM

Date: 14 February 2013