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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Badger and Badger and Ors

Details

AGLC: Badger and Badger and Ors [2013] FMCAfam 124
Case: [2013] FMCAfam 124
Decision Date

CaseChat Overview and Summary

The case of Badger and Badger and Ors was heard in the Federal Court of Australia and involved a dispute over the admissibility of evidence obtained through allegedly improper or illegal means. The primary issue before the court was whether certain evidence should be excluded from the trial under section 138 of the Evidence Act 1995. This section grants the court discretion to exclude evidence obtained improperly or in contravention of Australian law unless the desirability of admitting the evidence outweighs the undesirability of admitting such evidence. The court was required to determine whether the evidence in question met the criteria for exclusion under the Act and, if so, whether the probative value and importance of the evidence justified its admission despite the manner of its acquisition.

In examining the evidence, the court considered various factors outlined in section 138, including the probative value and importance of the evidence, the nature of the offence, the gravity of the impropriety or contravention, and whether the impropriety or contravention was deliberate or reckless. The court also had to assess whether the evidence was obtained in consequence of an admission made during improper questioning, as specified in subsection (2) of the Act. The decision hinged on whether the evidence was improperly obtained and, if so, whether its admission would be more detrimental than beneficial to the fairness of the trial. The court referenced previous jurisprudence, including Parker v Comptroller-General of Customs, to guide its interpretation of the Act and the two-stage process for admitting improperly obtained evidence.

Ultimately, the court found that the evidence in question had indeed been obtained improperly, as it was the result of questioning that impaired the ability of the person being questioned to respond rationally. However, the court also determined that the probative value and importance of the evidence in the proceeding, coupled with the difficulty of obtaining the evidence without impropriety, outweighed the undesirability of its origin. Consequently, the court decided to admit the evidence, balancing the interests of justice with the need for relevant information in the case. This decision underscores the court’s obligation to carefully weigh the factors specified in section 138 to ensure a fair and just outcome.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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".”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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