Chao v Chao

[2008] NSWSC 584

CITATION:	Chao v Chao [2008] NSWSC 584
HEARING DATE(S):	8 May 2008
JURISDICTION:	Equity Division Expedition List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	8 May 2008
DECISION:	The recorded conversation is admissible subject to proof of accuracy of transcript.
CATCHWORDS:	EVIDENCE – Admissibility of evidence – where evidence being adduced is a transcript of a recorded telephone conversation – where recording made by holding tape recorder to speaker - (CTH) Telecommunications (Interception and Access) Act 1979 – whether recorded conversation is an interception of communication passing over a telecommunications system – whether recorded conversation had become accessible to the intended recipient of the communication. - EVIDENCE – Admissibility of evidence – where evidence being adduced is a transcript of a recorded telephone conversation – (NSW) Listening Devices Act 1984 – whether recorded conversation obtained unlawfully – whether recorded conversation had become known to the party only through use of the listening device – whether use of the listening device was reasonably necessary for the protection of the lawful interests of principal party by whom it was recorded.
LEGISLATION CITED:	(NSW) Evidence Act 1995, ss 128, 132 (NSW) Listening Devices Act 1984, ss 5, 13 (CTH) Telecommunications (Interception and Access) Act 1979, ss 5F, 5H, 7
CATEGORY:	Procedural and other rulings
CASES CITED:	Ferrall v Blyton [2000] FamCA 1442; (2000) FLC 93-054
PARTIES:	Ping Jung Chao (plaintiff) Sheng-Chun Chao (defendant)
FILE NUMBER(S):	SC 4398/07
COUNSEL:	Mr J B Simpkins SC (plaintiff) Mr N G Ford (sol) (defendant)
SOLICITORS:	Helen Sin Legal Pty Ltd (plaintiff) Brischetto & Ford Solicitors (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

8 May 2008

4398/07 Ping Jung Chao v Sheng-Chun Chao

JUDGMENT

1 HIS HONOUR: In paragraph 52 of her affidavit affirmed 3 April 2008 the plaintiff deposes as follows:

On 15 December 2007, I had telephone conversations with the Defendant. The telephone conversations were recorded. The transcript is exhibited hereto and marked PJC-30.
(a) The relevant contents of our conversations are in the paragraphs 13-15 of my Affirmation of the 18 December 2007.

2 Exhibit PJC 30 comprises what purports to be a typed transcript of a conversation between the plaintiff and the defendant, partly in English and partly in Mandarin, accompanied by a translation by an accredited translator of the transcript into English alone. The evidence does not at this stage disclose how the transcript – as distinct from the translation – was prepared, nor prove the accuracy of the transcript, and that is a matter which, if objection is maintained to it, will require further consideration; but at this stage I am concerned primarily with the admissibility of paragraph 52, and the transcript, assuming its accuracy is established or conceded, objection having been taken primarily on the basis that the evidence was unlawfully obtained and inadmissible by reason of (CTH) Telecommunications (Interception and Access) Act 1979, or (NSW) Listening Devices Act 1984.

3 On the voir dire, the plaintiff was asked to explain the circumstances in which a tape recording of the relevant telephone conversations, subsequently transcribed, was made. As it seemed to me that this might involve the plaintiff in incriminating herself in respect of an offence under the Commonwealth Act or the State Act, in accordance with the Court's obligation under the (NSW) Evidence Act 1995, ss 128 and 132, I informed the plaintiff of her right to make an objection under s 128 of that Act to giving evidence on the ground that the evidence may tend to prove that she had committed an offence against an Australian law. In due course, the plaintiff took that objection, and, for the purposes of s 128(2), I found that there were reasonable grounds for the objection and informed the plaintiff that she was not required to give the evidence, and that she need not give it, but that if she gave the evidence the Court would give a certificate under s 128, which would preclude the use of such evidence against her in a prosecution, except in relation to the falsity of the evidence. The availability of such a certificate in connection with evidence that a party wishes to adduce in chief is established [Ferrall v Blyton [2000] FamCA 1442; (2000) FLC ¶93-054, [85]-[90]]. Having been so informed, the plaintiff gave the evidence, and in due course I granted a certificate under s 128 in respect of it.

4 The plaintiff explained that the conversation was recorded by means of a small portable cassette type recorder which did not form part of the telephone but was separate from the telephone. I infer that it recorded the conversation after the conversation had become accessible to the plaintiff, in the sense that the plaintiff was listening to the conversation contemporaneously with it being recorded.

5 (CTH) Telecommunications (Interception and Access) Act provides, by s 7, that a person shall not intercept or authorise another person to intercept a communication passing over a telecommunications system. Section 5F provides that a communication is taken to start passing over a telecommunications system when it is sent or transmitted by the person sending the communication, and is taken to continue to pass over the system "until it becomes accessible to the intended recipient of the communication". Section 5H provides that, without limiting the circumstances in which a communication may be taken to be accessible to its intended recipient, it is accessible to the intended recipient if it has been received by the telecommunications service provided to the intended recipient, or is under the control of the intended recipient, or has been delivered to the telecommunications service provided to the intended recipient.

6 In my view it is clear that, at the time the recording was made, the relevant communication had become accessible to the plaintiff – the intended recipient – and, accordingly, that the Commonwealth Act does not apply.

7 (NSW) Listening Devices Act prohibits the use of listening devices and excludes from evidence material obtained as a result of the illegal use of listening devices in various circumstances. However, s 13(1) – which might otherwise exclude evidence obtained as it was in the present case – does not do so if the relevant evidence does not come to the knowledge of the witness as a result of use of the listening device. Here, the relevant evidence came to the knowledge of the witness as a result of her hearing the conversation to which she was a party over the telephone, and not by use of the listening device.

8 Moreover, s 5(3)(b) provides that the Act does not prohibit the use of a listening device by or with the consent of a principal party to the conversation, where it is reasonably necessary for the protection of the lawful interests of that principal to use the device. In this case, by the time of the relevant conversation, a serious dispute had erupted between the defendant and the plaintiff. It was obvious that who was going to be believed as to the different versions of the arrangements originally made between them in respect of the Horace Street property was highly contentious. On the plaintiff's case, the defendant was threatening to eject her from the Horace Street property. Indeed, litigation had already commenced.

9 In that context I am comfortably satisfied that the recording of the conversation was a step reasonably necessary for the protection of the lawful interests of the plaintiff. Accordingly, in my view the State Act does not operate to render the evidence inadmissible.

10 It follows that, subject to proof of the accuracy of the transcript, I would not exclude the transcript as inadmissible by operation of either the Commonwealth or the State Acts to which I have referred.

11 Paragraph 52 is admitted. Exhibit PJC 30 is not yet admitted for the reasons I have indicated.

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