Byrne & Byrne

[2002] FamCA 887

[2002] FamCA 887

FAMILY LAW ACT 1975

IN THE FAMILY COURT

OF AUSTRALIA

AT PARRAMATTA  No.(P)PAF 4548 of 2001

BETWEEN:

RAYMOND JOHN JOSEPH BYRNE

Applicant Father

- and -

JULIE ANN BYRNE

Respondent Mother

CORAM:  Judicial Registrar Halligan

DATE OF HEARING:         18^th September 2002

DATE OF JUDGMENT      27^th September 2002

JUDGMENT OF THE COURT

Appearances:            Mr John Maait from Messrs John H Maait & Co, solicitors DX 8294 Parramatta, appeared on behalf of the applicant Father     

Ms L. Snelling of Counsel, instructed by R J Russell, Solicitor, Suite 4/101 Queen Street, Campbelltown 2560, appeared on behalf of the respondent Mother

Background.

1. In the course of this hearing, an issue has arisen as to the admissibility into evidence of a recording, made by the applicant father on his mobile phone, of a phone conversation between himself and the respondent mother. The hearing concerns alleged contraventions of parenting orders, being determined under Division 13A of Part VII of the Family Law Act 1975.

2. The father's affidavit, at paragraph 19, sets out what he says is the terms of a conversation he had with the mother on the afternoon of 16 February 2002.  No objection was taken on behalf of the mother to the admissibility of that evidence.  The mother was cross examined about the terms of the conversation, and disagreed with aspects of the father's version.  The solicitor for the father then had a recording of a conversation made on the father's mobile phone played to the mother, while I left the Bench, and then further cross examined the mother about the terms of the conversation.

3. The mother acknowledged that what she heard was a recording of a conversation between herself and the father, which she agreed took place by phone on 16 February 2002.  She acknowledged that paragraph 19 of the father's affidavit accurately set out the conversation in the recording.  She acknowledged that the last part of the conversation attributed to her as set out in paragraph 19 of the father's affidavit was in fact correct, although in cross examination before hearing the recording she had denied saying these words.  However, she maintained the recording and paragraph 19 of the father's affidavit were not accurate records of the conversation.  She said that an expletive was used by the father in both the second and third parts of the conversation attributed to the father, and had been omitted from both his affidavit and from the recording played to her.

4. At that point, the father's solicitor tendered the recording (and the mobile phone), and counsel for the mother objected.

5. Counsel for the mother at first relied on s 5 of the Listening Devices Act 1984 (NSW) (the Listening Devices Act) and s 138 of the Evidence Act 1995 (Cth), arguing that the mobile phone was a listening device under the State law, the recording was prohibited by the State law, and so should be excluded under s 138 of the Evidence Act. She also cited the authority of Miller & Miller, (1978) 4 Fam LR 474, (1978) FLC 90-506, although she did not address me on the substance of that decision, or its application in the present circumstances.

6. The solicitor for the father argued that the recording was saved by s 5(3) of the Listening Devices Act, being a recording which was reasonably necessary for the protection of the father's lawful interests.

7. I then raised with both legal representatives the Telecommunications (Interception) Act 1979 (Cth) (the Interception Act), and sought submissions as to whether there was any conflict between the Listening Devices Act and the Interception Act, whether the Commonwealth Act covered the field and, in accordance with the decision in Miller, prevailed over the State Act, and, if the Commonwealth Act governed the question whether the recording was unlawful, whether s 6(2) had application where the recording was made using a mobile phone, and if so, how the section should be construed to achieve such application.

8. The mother's counsel submitted that the recording was prohibited under the Interception Act by operation of ss 6 and 7, and that there was inconsistency between the Commonwealth and State Acts. As I understood her position, she submitted that s 6(2) of the Commonwealth Act does not apply to the recording.

9. As I understand the oral submissions of the father's solicitor, he suggested that Miller was distinguishable - although I do not understand on what basis - and the matter fell for determination by reference to the Listening Devices Act, arguing that this was a permissible use of a listening device under s 5(3) of that Act.

The Evidence Act 1995 (Cth).

1. Section 138(1) provides:

   “(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 the evidence that has been obtained in the way in which the evidence was obtained.”

2. The Dictionary in the Evidence Act defines “Australian law” as “a law of the Commonwealth, a State or a Territory”.

The Listening Devices Act 1984 (NSW).

1. Section 5(1) and (3) provides:

   “(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.”

   “(3)Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if:

   …

   (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 that principal party; …”

2. Relevant definitions in s 3(1) are:

   “listening device means any instrument, apparatus, equipment or device capable of being used to record or listen to a private conversation simultaneously with its taking place.

   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.

   principal party, in relation to a private conversation, means a person by or to whom words are spoken in the course of the conversation.

   private conversation means 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.”

3. Section 3(3) provides, inter alia, that a reference in the Act to a record of a private conversation includes a reference to a statement prepared from such a record.

The Telecommunications (Interception) Act 1979 (Cth).

1. Section 7(1) provides:

   “(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.”

2. Section 5(1) contains the following relevant definitions:

   “communication includes conversation and a message, and any part of a conversation or message, whether:

   (a)       in the form of:

   (i)speech, music or other sounds;

   (ii)data;

   (iii)text;

   (iv)visual images, whether or not animated; or

   (v)signals; or

   (b)       in any form or in any combination of forms.”

   “telecommunications network means a system, or series of systems, for carrying communications by means of guided or unguided electromagnetic energy or both, but does not include a system, or series of systems, for carrying communications solely by means of radiocommunication.”

   “telecommunications service means a service for carrying communications by means of guided or unguided electromagnetic energy or both, being a service the use of which enables communications to be carried over a telecommunications system operated by a carrier but not being a service for carrying communications solely by means of radiocommunications.”

   “telecommunications system means:

   (a)a telecommunications network that is within Australia; or

   (b)a telecommunications network that is partly within Australia but only to the extent that the network is within Australia;

   and includes equipment, a line or other facility this is connected to such a network and is within Australia.”

3. Section 6 specifies what amounts to an interception for the purposes of the Act. It provides:

   “(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.

   (2)Where a person lawfully on premises to which a telecommunications service is provided by a carrier, by means of an apparatus or equipment that is part of that service:

   (a)listens to or records a communication passing over the telecommunications system on which that service forms a part, being a communication that is being made to or from that service;

   (b)listens to or records a communication passing over the telecommunications system of which that service forms a part, being a communication that is being received at that service in the ordinary course of the operation of that telecommunication system; or

   (c)listens to or records a communication passing over that telecommunications system of which that service forms a part as a result of a technical defect in that system or the mistake of an officer of the carrier;

   the listening or recording does not, for the purposes of this Act, constitute the interception of the communication.”

Relevant authorities.

1. As earlier mentioned, counsel for the mother referred to Miller & Miller.  During submissions, the solicitor for the father referred to an unreported decision of Legoe J of the SA Supreme Court in Re Alvaro; Public Trustee v Alvaro, [1995] SASC 5183, a case concerning the exercise of the discretion to admit into evidence recordings made in contravention of the Listening Devices Act 1972 (SA). For reasons set out later in this judgment, it will be unnecessary for me to exercise such a discretion in this case, and so Alvaro is not relevant.  There are other relevant reported decisions, which I will now consider.

Miller & Miller.

1. In Miller, the High Court was concerned with the admissibility of evidence of the father and his wife of phone conversations between the mother and the parties’ child, to which the father and his wife had listened, without the mother's knowledge, by use of an extension handset. The High Court considered the operation of the Listening Devices Act 1969 (NSW) and of the Telephonic Communications (Interception) Act 1960 (Cth), the respective predecessors of the NSW and Commonwealth Acts with which I am now concerned. Listening to the phone conversations was prohibited by the State Act, but permitted by the Commonwealth Act. The High Court unanimously held that the Commonwealth Act evinced a clear intention to be the whole law on the matter of telephonic interception, and to the extent to which the State law purported to proscribe a thing permitted under the Commonwealth law, it was invalid.

2. The key provision of the 1960 Commonwealth Act which the High Court held rendered the actions of the father and his wife lawful, s 4(2), is very similar to s 6(2) of the present Interception Act. It was in the following terms:

   “(2)Where a person lawfully on premises to which a telephone service is provided, by means of a telephone instrument or other device that is part of that service-

   (a)listens to or records a communication passing over a telephone line that is part of that service, being a communication that is being made to or from that service; or

   (b)listens to a communication passing over such telephone line as a result of a technical defect in the telephone system or the mistake of an officer of the Department,

   the listening or recording does not, for the purposes of this Act, constitute the interception of the communication.”

R v Migliorini & Ors, (1981) 38 ALR 356.

1. Cosgrove J, sitting in the Tasmanian Supreme Court, was concerned in Migliorini with the admissibility of recordings, and transcripts of those recordings, made by a police officer of phone conversations in which it was alleged two of the accused, charged with blackmail, demanded a sum of money.  The recordings were made by means of a suction cup attached to the cradle of the phone, which was connected to a tape recorder.  There was expert technical evidence as to how the device was able to record the conversation.  It operated by detecting and transferring to the tape recorder, some of the electromagnetic energy created when the electrical impulses carrying the voice of the caller passed through a coil in the cradle of the telephone connected to the telephone system, before the signal was passed to the earpiece and converted back into sound.

2. Cosgrove J held that the recording was an unlawful interception under the Interception Act, because the device was not part of a service provided by Telecom (as it then was), and because, at the time of its interception, the recorded communication was “in its passage” over the system.

3. Nonetheless, Cosgrove J exercised his discretion to admit the recordings into evidence.

R v Oliver, (1985) 57 ALR 543.

1. Oliver was a decision of the Court of Criminal Appeal of NSW, which dealt, inter alia, with the admissibility into evidence of recordings of certain phone conversations. The court had to decide whether the recordings were a prohibited interception under the Interception Act (in the judgment referred to as the Telecommunications Act 1979 (Cth)). Priestley JA, with whom Cantor J agreed, Roden J expressly not deciding, found that the recordings were not prohibited interceptions because they were made by means of a microphone external to the phone after the sounds had left the telecommunications system.

Edelsten v Investigating Committee of NSW, (1986) 80 ALR 85.

1. Lee J in the NSW Supreme Court in Edelsten had to decide whether recordings made of certain phone conversations occurring between a mobile phone installed in a motor vehicle and a phone installed in a building involved prohibited interceptions under the Interception Act. The recordings were made by means of a tape recorder attached to a scanner. There was expert technical evidence as to how the recordings were made. By means of the scanner, the person who made the recordings was able to locate and “lock onto” the radio frequency on which the phone conversations were being transmitted to and from the mobile phone.

2. His Honour found that the use of a scanner to intrude into the frequency used by a telecommunications network to transmit communications, and to thus record communications, was a prohibited interception under section 6 of the Interception Act. Relying on the decision in Miller, his Honour held that the Commonwealth Act covered the field of telecommunications interceptions, and that the Listening Devices Act could have no operation in relation to the interception of telecommunications.

Green v R, (1996) 135 ALR 181.

1. The WA Court of Criminal Appeal in Green had to consider whether a recording of telephone conversations was a prohibited interception under the Interception Act.

2. Franklyn J, with whom Pidgeon and Rowland JJ agreed, observed (at p 190) that:

   “It is obvious that each party to a telephone communication is aware that the other party is or may be listening to what the first party says in that communication. Section 7(1) (of the Interception Act) aside, there is no prohibition in the Act upon either or any party to a communication recording, by taking notes or otherwise, information received by him or her in the communication. Indeed such recording of information is an incident of everyday life and essential to the conduct of many commercial operations. A construction of s 6(1) which accepts that a communication over the telephone, listened to by its intended recipient in the ordinary course of the use of the telecommunications system, may be lawfully recorded by the recipient without the knowledge of the caller, but renders illegal the recording of the same communication by the same intended recipient if it is listened to or recorded in the fragment of time during which it is so passing over the system, solely because the listening to and or recording of it occurred without the knowledge of the caller while it was passing over the system, is in my view absurd and without point. … I agree with Matheson J (in T v Medical Board of South Australia (1992) 58 SASR 382) and with the New South Wales Court of Criminal Appeal in Edelsten that the Act is concerned to protect the privacy of communications passing between users of the system established by the (Telecommunications) Commission. As such there is nothing to be protected as between the caller and the intended recipient who receives the call. The intended protection is against a third party invading the privacy of that communication by an interception within the meaning of s 6(1).”

Which Act applies?

1. On the authority of Miller and Edelsten, the Interception Act covers the field in relation to the interception of a communication passing over a telecommunications system, and a State law cannot operate to render lawful that which is unlawful under the Commonwealth Act, or to render unlawful that which is lawful under the Commonwealth Act. The question whether the recording made by the father in this case was lawful or unlawful therefore falls to be determined first by reference to the Commonwealth Act. Only if it was made in circumstances not covered by the Commonwealth Act can the State Act then be considered.

Was the recording unlawful?

1. Of the cases considered above, two (Migliorini and Edelsten) concerned recordings, by persons not parties to the communications, of communications passing over the telecommunications system.  While unclear, it seems from the principal judgment that Green concerned the recording, by a party to the communication, of a communication passing over the telecommunications system.  The other two cases did not involve interceptions, in the case of Miller because it involved a permissible use of an apparatus or equipment connected to the telecommunications system, and in the case of Oliver because there was no interception of a communication passing over the system.

2. There is no expert evidence to assist me to determine whether the recording the father made on his mobile phone was of a communication passing over the telecommunications system, or after it completed its passage over that system.  But at whatever stage the recording was made, it was made by the father on a mobile phone by which he was conversing with the mother over a mobile phone network.  He was using a mobile phone to which a mobile telephone service was provided by his mobile phone company.  It is a situation analogous to that dealt with by the High Court in Miller, although in Miller the person listening to the conversation was not a party to it.

3. In Miller, the High Court held that use of an extension phone by a person lawfully on premises in which that phone was installed as part of a telecommunications system to listen to a phone conversation between others was permitted by the predecessor of s 6(2) of the present Interception Act, and so could not be proscribed by a State Act. The language of s 6(2) clearly contemplates a service provided to premises, that is, an immobile service. However, here I am concerned with the use of a mobile phone to participate in the communication over the telecommunications system, and to record the communication. The whole point of mobile telephony is to provide to a consumer a telecommunications service that is not restricted to a single geographic location.

1. The analysis of the purpose of the Interception Act, and the evil it sought to address, as set out in the comments of Franklyn J in Green quoted above, is apposite.  Being a recording made by one of the two intended parties to the phone call, as Franklyn J said, there is nothing to be protected as between the intended parties to the phone call.  Again as Franklyn J said, it would be absurd and without point if a recording of a communication, made by an intended party to the communication, was proscribed.

2. In my view, when read with the relevant definitions, s 6(2) of the Interception Act evinces an intention to exclude from the phrase “interception of a communication”, and as the High Court said in Miller to permit, the use of any apparatus or equipment that is connected to a telecommunications network, and which is thus part of a telecommunications system, by any person lawfully having access to that apparatus or equipment.  The father had lawful access to his mobile phone, which was an apparatus or equipment connected to a telecommunications network, and thus part of a telecommunications system, over which he was provided with a telecommunications service.

3. In my view, s 6(2) is capable of application to the use of a mobile telephone, despite the language of the subsection being in terms of a service provided to fixed premises. In my view, the recording the father made falls within the spirit and intent of s 6(2) as a permissible use of the apparatus or equipment of current mobile telephony. I find that this use by the father of his mobile phone to record the conversation between him and the mother was permitted by s 6(2) and was thus lawful, in the same way the use of the extension handset by non-parties to the communication in Miller was permitted by the predecessor of the section and was thus lawful.

4. This finding in my view makes irrelevant the question, which on the evidence I cannot answer, whether the recording was made while the communication was passing over the system. The finding also leaves no scope for any application of the Listening Devices Act.

5. As I have found the recording was not made in contravention of an Australian law, the basis of the objection under s 138 of the Evidence Act is not made out.

Conclusion.

1. I find that the recording of the phone conversation which the father's solicitor tendered in evidence was not made in contravention of an Australian law, that s 138 of the Evidence Act therefore does not apply, and that the tender of the recording into evidence should not be rejected on that ground.

I certify that these

38 paragraphs are a true copy of the reasons

for judgment herein of
Judicial Registrar Halligan.



Associate

May 23, 2019