Director of Public Prosecutions (NSW) v Fordham

[2010] NSWSC 795

Reported Decision: 202 A Crim R 254

New South Wales

Supreme Court

CITATION:	DPP (NSW) v Fordham; Byrne; TCN Channel Nine Pty Ltd [2010] NSWSC 795 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	6-12 April 2010
JUDGMENT DATE :	20 July 2010
JUDGMENT OF:	Fullerton J
DECISION:	1. Each summons in which TCN Channel Nine Pty Ltd is charged with a breach of the Listening Devices Act is dismissed. 2. Each summons in which Mr Fordham is charged with a breach of s 7(1) of the Listening Devices Act is dismissed. 3. The summons in which Mr Fordham is charged with a breach of s 5(1)(b) of the Listening Devices Act is dismissed. 4. In respect of the offence laid pursuant to s 6(1) of the Listening Devices Act that on 28 May 2008 Mr Fordham knowingly communicated a report of a private conversation, I find the offence proved but dismiss the summons as provided for in s 10(1)(a) of the Crimes (Sentencing Procedure) Act. 5. In respect of each of the four offences against Mr Byrne for breaches of s 5(1)(a) and s 6(1) of the Listening Devices Act, I find the offences proved but dismiss each summons as provided for in s 10(1)(a) of the Crimes (Sentencing Procedure) Act.
CATCHWORDS:	Offences under the Listening Devices Act 1984 - s 5(1)(a) causing the prohibited use of a listening device to record a private conversation - s 5(1)(b) causing the prohibited use of a listening device to record a private conversation to which the person is a party - s 6(1) communication of a private conversation obtained in breach of the Act - s 7(1) communication of a private conversation obtained in breach of the Act where a party to a private conversation - s 8(1) being in possession of a record of a private conversation - leave to amend summonses at the close of the evidence where there is a failure to disclose all elements of an offence - whether either of the conversations recorded in breach of the Act were private conversations as defined in s 3 - meaning of causing another to record a private conversation by use of a listening device - whether a corporation is capable of contravening the Act where it is not a party to a private conversation - application of the ‘rules of attribution’ of criminal liability to a corporation for offences in Part 2 of the Act - whether a corporation can be vicariously liable for an offence involving mens rea
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Listening Devices Act 1984
CASES CITED:	Borodin v R [2006] NSWCCA 83 Director General, Department of Education and Training v MT [2006] NSWCA 270; 67 NSWLR 237 Lawrence v NSW Police Service [2004] NSWSC 59; 144 A Crim R 396 Miller v TCN Channel Nine (1988) 36 A Crim R 92 O’Sullivan v Truth & Sportsmen Ltd (1957) 96 CLR 220 Presidential Security Services of Australia Pty Ltd v Clinton Joseph Brilley [2008] NSWCA 204 Tesco Supermarkets Ltd v Nattrass [1972] AC 153
PARTIES:	Director of Public Prosecutions (NSW) (Plaintiff) Ben Thomas Fordham (Defendant) Andrew Byrne (Defendant) TCN Channel Nine Pty Ltd (Defendant)
FILE NUMBER(S):	SC 2009/11095; 2009/11097; 2009/11098
COUNSEL:	J Pickering (Plaintiff) B McClintock SC/H Dhanji (Defendants)
SOLICITORS:	Director of Public Prosecutions (NSW) (Plaintiff) Johnson Winter & Slattery (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

FULLERTON J

20 JULY 2010

2009/11095 DIRECTOR OF PUBLIC PROSECUTIONS v BEN FORDHAM
2009/11097 DIRECTOR OF PUBLIC PROSECUTIONS v
ANDREW BYRNE

2009/11098 DIRECTOR OF PUBLIC PROSECUTIONS v TCN CHANNEL NINE PTY LTD

JUDGMENT

1 HER HONOUR: The Office of the Director of Public Prosecutions (NSW) commenced criminal proceedings in the summary jurisdiction of this Court against two individuals, and a corporation who employs those individuals, for multiple offences within Part 2 of the Listening Devices Act 1984 (“the Act”). Each breach attracts a penal sanction of 2 years imprisonment with a maximum fine of $4,400 for the individuals and $550,000 for the corporation.

2 TCN Channel Nine Pty Ltd (“TCN Nine”) is the corporate defendant. “A Current Affair” is a current affairs program that is broadcast on the Nine Network each week night at the programmed time slot of 6.30pm under a licence held by TCN Nine. The proceedings against all three defendants concern the airing of a segment on A Current Affair on 28 and 29 May 2008, and the actions of two employees of TCN Nine in the preparation and presentation of the segment for broadcast.

3 TCN Nine is charged with five offences involving, in general terms, causing the prohibited use of a listening device to record a private conversation on 21 May 2008 contrary to s 5(1)(a) of the Act, being in possession of a record of a private conversation also obtained in breach of s 5 contrary to s 8(1) of the Act and the communication of private conversations contrary to s 6(1) of the Act in two segments of A Current Affair broadcast on 28 and 29 May 2008.

4 At the relevant time Andrew Byrne was a producer of A Current Affair. He is charged with four offences committed within the same time frame and of the same general kind as those charged against TCN Nine. Ben Fordham is a reporter with A Current Affair. He is also charged with a range of offences of the same or similar kind to those charged against Mr Byrne and TCN Nine.

5 At an interlocutory stage in the proceedings each of the defendants entered pleas of not guilty to all charges. Mr McClintock SC appeared with Mr Dhanji for all three defendants.

The broadcast on 28 May 2008

6 On 28 May 2008 the presenter of A Current Affair introduced a story to be broadcast that evening where it was said that arrangements for the kidnap, torture and murder of a male escort by a contract killer engaged by James Markham would be revealed. Mr Markham was identified as a former solicitor and former mayor of Waverley. Archival footage of Mr Markham dating back to be the 1980’s was included in the segment. The presenter then introduced Mr Fordham, a regular reporter for the program, as the person who, in a secretly recorded conversation, had masqueraded as the contract killer so as to expose Mr Markham’s criminal intent. In the proceedings this conversation was referred to as “the car conversation”. In the opening phase of the segment Mr Fordham addressed the viewing audience in the following terms:

Markham was recorded planning a murder. He paid $12,000 to his nephew Tolmie to carry out the job but instead Tolmie invited me along to work undercover to expose the murder plot.

7 A number of edited excerpts of the car conversation were aired in the segment broadcast on 28 May 2008. Some were repeated in the broadcast the following night. On both occasions there were accompanying subtitles, doubtless added to ensure the full impact of what was being discussed between Mr Markham and Mr Fordham was conveyed to the viewing public. The unedited car conversation was also tendered in evidence.

8 The car conversation which went to air included negotiations about the methods to be adopted by Mr Fordham to fulfil the terms of the contract, replete with graphic details about those methods and discussion about the likelihood that the victim would be killed in the process. The unedited version is even more explicit. It was made available to police by Mr Fordham after the story was broadcast on 28 May 2008. This was the first time the police had any information bearing upon Mr Markham’s criminal intentions, the involvement of Adam Tolmie in carrying out his wishes or the involvement of TCN Nine and its employees in making those matters public.

9 In the broadcast on 28 May 2008 Mr Byrne was introduced to viewers by Mr Fordham as a senior producer of the program. He was shown in a café with a mobile phone to his ear apparently listening to a conversation Mr Tolmie had recorded with his uncle some weeks before the car conversation was recorded. In that segment Mr Byrne informed the viewing public that the conversation recorded on the telephone by Mr Tolmie concerned preliminary arrangements he had made with his uncle for the kidnap and torture of the same male escort that Mr Markham would be heard to speak to Mr Fordham about in the car conversation. A brief excerpt of that conversation was broadcast. This was referred to in the proceedings as “the mobile conversation”. Mr Byrne told the viewing public that the recording on the mobile phone had been given to him by Mr Tolmie, someone who had a lengthy criminal record and who was well known to police. Although I have doubts as to whether Mr Byrne was being truthful when he said that Mr Tolmie had given him the phone recording (as distinct from either Mr Byrne or someone at his direction getting access to it without Mr Tolmie’s knowledge when he was at the studio for the purpose of an interview in the pre-production phase of the segment), nothing turns on that so far as the legality of Mr Byrne’s conduct is concerned.

10 The interview with Mr Tolmie was also included in the segment that went to air on 28 May. Mr Fordham was off camera as the interviewer. In the interview the viewing public was given to understand that the mobile conversation had been secretly recorded by Mr Tolmie because he was outraged at what his uncle was asking him to do, and although he received the $12,000 on the basis that he would make the necessary arrangements to lure the escort to where he could be threatened and assaulted, and to pay the assailant, he had no intention of carrying out his uncle’s wishes. Mr Tolmie gave evidence in the proceedings that he was motivated to tape the conversation to avenge the sexual mistreatment he had suffered while under his uncle’s care as a young boy, and that he believed that publicly exposing his uncle would also vindicate him in the eyes of his family. He said he played the mobile phone conversation to Mr Byrne in the café with a view to the conversation being used on A Current Affair as part of the material designed to publicly expose his uncle. The unedited mobile conversation was also tendered in the proceedings.

11 Although there was reference to the mobile conversation and its contents in the parts of the interview that were broadcast on 28 May, no parts of the conversation were quoted.

12 Towards the end of the segment broadcast on 28 May Mr Fordham confronted Paul Dunshea, the person who the viewing public was told was the male escort Mr Markham had identified as the man he wanted brutalised. I am satisfied that Mr Dunshea has never met Mr Markham, that he has never extorted money from him or any of his clients and has no knowledge of anyone who would wish him harm. The evidence before me was that the meeting with Mr Dunshea was arranged on the pretext of Mr Fordham and Mr Byrne pretending to be businessmen who had contracted for the provision of Mr Dunshea’s sexual services to celebrate having settled a large commercial contract. It was only after Mr Fordham informed Mr Dunshea that he was the man that had been contracted to kill him that he identified himself and the others in the hotel room as journalists.

The broadcast on 29 May 2008

13 On 29 May 2008 a follow up story concerning Mr Markham was broadcast on A Current Affair. It was clearly filmed in advance of the broadcast the previous evening and in anticipation of it going to air. The focus of this segment was for to the viewing public to be told, as they had been informed the night before, that Mr Fordham had informed police of the contract killing and that he had provided them with the recording of the conversation in the car that had been broadcast the previous evening. Some excerpts of the car conversation were replayed, with an additional excerpt where Mr Markham is heard to say that he wanted to watch the escort being brutalised and asked for confirmation from Mr Fordham that there would be no further costs involved in carrying out the contract. He also said that there were two more people he wanted harmed but that any further contract would be dependent on the success of the first venture. This segment also included a staged meeting between Mr Tolmie and Mr Dunshea where Mr Dunshea thanked him for revealing to Mr Byrne his uncle’s plans to have him killed.

Were either the mobile conversation or the car conversation private conversations?

14 Since it is critical to proof of all charges laid against each of the defendants that the prosecution establish, to the criminal standard, that the mobile conversation and the car conversation were private conversations as defined in s 3 of the Act, I propose to deal with that issue first.

15 It was common ground that Mr Tolmie first contacted Mr Byrne offering to provide information about Mr Markham’s criminal intentions some weeks before 28 May 2008, an approach which culminated in him inviting Mr Byrne to listen to a recording of his discussions with his uncle on the mobile conversation at the café. The parties were in considerable disagreement however as to what Mr Tolmie’s motives were at that time, in particular whether Mr Markham was party to him approaching Mr Byrne and whether in speaking to his nephew about the plans to brutalise the escort he knew the conversation was being recorded. An additional and critical fact in issue in the proceedings was whether Mr Markham was aware that his conversation with Mr Fordham in the car was being recorded or, to put it more precisely, whether in all the circumstances I have a reasonable doubt as to both facts.

16 Having regard to the content of both recorded conversations, and Mr Markham’s demeanour in the video recording of the car conversation, the prosecution submitted that a question arises as to whether Mr Markham was labouring under some mental instability such as might explain his behaviour and the apparent pleasure he was seeking to derive from having the contract killing executed. Given the facts in issue in the proceedings, in particular whether the prosecution has proved that either of the recorded conversations were private conversations, in the absence of any medical evidence tendered by the prosecution in support of its submission, I do not propose to speculate as to what Mr Markham’s mental health might have been in May 2008. Suffice to say that although he was of advanced years, he gave every appearance of being sufficiently oriented in time and place to be a competent negotiator in pursuit of his own contractual objectives in both the conversation with Mr Tolmie recorded on a mobile phone and in the conversation with Mr Fordham recorded in the car. Mr Markham did not give evidence in the proceeding. Mr McCIintock did not submit that I could draw any adverse inference from the failure of the prosecution to secure his attendance as a witness in the prosecution of his clients. He accepted that Mr Markham is now in poor physical and mental health such that his competence as a witness would be in serious doubt.

17 It was not submitted by either of the parties that it was open to me to find that one conversation (either the mobile conversation or the car conversation) was a private conversation and the other not. On the defence case the two conversations were inextricably linked. That said, I propose to deal first with the mobile conversation since the case mounted on behalf of all defendants was that this was recorded in the first phase of a scheme designed by Mr Tolmie and Mr Markham to obtain or extort money from TCN Nine with Mr Tolmie’s brother, Donnie, a likely participant in that criminal enterprise. It was also the defence case that the car conversation was not originally envisaged by the conspirators as being necessary to achieve their objective. Rather it was something that became necessary because of Mr Byrne’s reluctance to launch a story about Mr Markham on A Current Affair because of Mr Tolmie’s criminal antecedents, and because the identity of the person on the mobile phone was entirely dependent of his word. In these circumstances, so it was submitted, the Tolmie brothers and Mr Markham were forced to participate in a face to face (and recorded) meeting with Mr Fordham to achieve their criminal objective.

What constitutes a private conversation?

18 A private conversation for the purposes of the Listening Devices Act is defined as follows:

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.

19 In order for the prosecution to make out its case against each of the defendants, for each of those offences referable to the mobile conversation, it must establish that the circumstances in which that conversation occurred are such that they may reasonably be taken to indicate that either Mr Tolmie or Mr Markham, as the two parties to the conversation, desired that the words that passed between them would be listened to (a) only by themselves, or (b) by themselves and by someone who they consented to listen to the conversation, either expressly or impliedly.

20 Mr Tolmie gave evidence that he secretly recorded the mobile conversation with his uncle before approaching Mr Byrne with a view to offering him the story. Mr Tolmie also gave evidence that he made the recording after he had been initially approached by his uncle some days earlier to arrange for a particular male escort to be threatened then physically assaulted because the escort had been extorting money from a friend of his.

21 Self evidently, Mr Tolmie did not have the intention comprehended by either (a) or (b) in [19] above given that, on his evidence, he recorded the conversation for the purposes of exposing his uncle, including his intentions that the recording be sold or given to the media for the purposes of broadcast. If, however, I am satisfied that it is reasonably possible that Mr Markham knew that Mr Tolmie was recording the conversation for the purposes of playing it to a producer of A Current Affair (or any other media outlet for that matter), and he consented to that occurring, then the conversation ceases to be a private conversation for the purposes of the Act.

22 The unedited mobile conversation records discussion of the most horrific kind. Mr Tolmie is heard to describe in graphic detail the various forms of homoerotic torture it was planned that the male escort would be subjected to, and the lengths to which the hired assailant would go to ensure that his uncle’s wishes were carried out. It also records Mr Tolmie and Mr Markham discussing the progress of these arrangements in great detail, to the point where it was ultimately agreed between them that the victim would be lured to a remote location where he would be humiliated and tortured in the process of having serious sexual violence inflicted upon him by a person Mr Tolmie would hire. The victim’s death was openly contemplated as a likely outcome of those arrangements.

23 The prosecution case was that the content of the mobile conversation compels the conclusion that it was recorded without Mr Markham’s knowledge, and, accordingly, that it was a private conversation as defined in s 3 of the Act. Mr McClintock submitted that I would not be persuaded of that fact to the criminal standard. He submitted that the evidence gives rise to the rational hypothesis that Mr Markham was complicit both with Mr Tolmie’s approach to TCN Nine in offering Mr Byrne the mobile conversation to entice his interest as a producer of A Current Affair, and that he was thereafter a willing party to the recording of the car conversation as a means of extorting money from TCN Nine as the broadcaster of the program.

Was the car conversation a private conversation?

24 In order for the prosecution to make out its case against each of the defendants for each of the offences referable to the car conversation, it must establish that the circumstances in which that conversation occurred were such that they may reasonably be taken to indicate that either Mr Tolmie, Mr Markham or Mr Fordham desired that the words that passed between them would be listened to (a) only by themselves, or (b) by themselves and by someone who they consented to listen to the conversation, either expressly or impliedly.

25 Again, self evidently, neither Mr Fordham nor Mr Tolmie expected that the conversation in the car would be listened to only by themselves, since they each knew that the car was fitted with a listening device and that Mr Tolmie was also fitted with a listening device. If, however, it is reasonably possible that Mr Markham knew that conversation in the car was being recorded, that is, if he knew that the so-called “hit man” was in fact a journalist, and that the conversation in which he was pretending to hire him to harm the escort was being recorded, and he consented to that occurring, then that conversation ceases to be a private conversation to the purposes of the Act.

Was the mobile conversation a private conversation?

26 The only evidence bearing upon the circumstances in which the mobile conversation was recorded is the evidence of Mr Tolmie. He was not embraced as a witness of truth by either party. I do not accept he has given truthful evidence of how the mobile conversation came to be recorded by him. Moreover, I do not accept that Mr Markham at any time claimed he needed Mr Tolmie’s services to avenge the interests of a friend that was being blackmailed by a male escort, or that he provided Mr Dunshea’s details, or that Mr Tolmie believed that to be his uncle’s motivation in offering $12,000 for a male escort to be sexually brutalised and humiliated. Were it otherwise the mobile conversation would have made some reference to the favour for the so-called friend. In contrast, the conversation is replete with explicit reference to the episode being solely to satisfy Mr Markham’s sadomasochistic sexual desires.

27 The prosecution submitted that despite Mr Tolmie’s highly questionable credibility, and the fact that he has not given truthful evidence in a number of respects, particularly in so far as his motivations in approaching Mr Byrne with information about his uncle are concerned, I would be left in no doubt that both the car conversation and the mobile conversation were private conversations as defined in the Act. It was submitted that it was beyond credulity to the point of being fanciful that Mr Markham (or anyone for that matter) would willingly expose himself to the television media as a person who was prepared to pay for and witness a person being sexually tortured and ultimately killed, much less that Mr Markham would leave it to Mr Tolmie to negotiate some settlement with TCN Nine on his behalf in the event that they decided to broadcast a story based on the mobile conversation where these arrangements were discussed in horrific and graphic detail. The prosecution further submitted that there was no evidence of any motive Mr Markham might have to conduct himself that way, and none could be inferred from his personal circumstances given he was someone with access to money, albeit via a corporate structure of some sort.

28 Despite my doubts about Mr Tolmie’s evidence in a number of respects, I am not persuaded of Mr McClintock’s analysis of either Mr Tolmie’s motivations in his dealings with TCN Nine, or Mr Markham’s motivation in his dealing first with Mr Tolmie in the mobile conversation, and then with Mr Tolmie and Mr Fordham on 21 May as reflected in the car conversation. In short, despite the grave doubts I have about Mr Tolmie’s credibility generally, and despite what I am satisfied are his blatant lies under oath as to why he approached Mr Byrne in the first place and how he recorded the mobile conversation and why he gave it to Mr Byrne, I am left in no doubt that Mr Markham was deceived by Mr Tolmie into paying money for services he had no intention of providing. I have already noted I have grave doubts as to whether Mr Markham approached Mr Tolmie as distinct from Mr Tolmie, perhaps knowing his uncle’s vulnerability and what appear to be his sadomasochistic tendencies, approaching him and offering to provide a means for him to indulge them. The full text of the mobile conversation gives rise to the overwhelming impression that Mr Tolmie is driving the discussion and proposing progressively more heinous forms of torture which Mr Markham appears to relish even hearing about. I am in no doubt at all that Mr Markham was unaware that Mr Tolmie was recording this conversation and, accordingly, unaware of his nephew’s approach to TCN Nine to offer them a recording of it. I am also satisfied that he was completely unaware that the conversation with Mr Fordham in the car where he contracted him to have the male escort brutalised and killed was being recorded.

The significance of the studio interview

29 I am also satisfied that immediately prior to, or on 21 May, Mr Byrne discussed with Mr Tolmie the role he would be expected to play in filming the car conversation where Mr Fordham was to pose as the hit man, it having been determined by that time, doubtless for maximum impact, that the producers of A Current Affair needed Mr Markham on camera confirming the details of the contract to torture the male escort consistent with what he had discussed in graphic detail with Mr Tolmie in the mobile conversation. I am satisfied that it was at this time that Mr Byrne interviewed Mr Tolmie at the TCN Nine television studios about the then existing and, so far as Mr Markham was led to believe by Mr Tolmie, the pending arrangements for the brutal assault on the male escort and his planned demise. It is also clear that the interview was conducted with a view to including parts of it in the segment that was due to go to air on 28 May 2008.

30 A close analysis of this interview reinforces my view that Mr Tolmie and Mr Markham were not acting in concert to deceive Mr Byrne, Mr Fordham or TCN Nine in the way contended for by Mr McClintock. Rather, in my view, Mr Tolmie is exposed on the one hand as a man pathetic in his desperation for the accolades and benefits he was led to believe by Mr Byrne would be his by participating with TCN Nine in broadcasting the story on A Current Affair, a story that it would appear both Mr Fordham and Mr Byrne were styling for maximum impact. On the other hand, he was revealed as just as desperate to cynically exploit his uncle’s sexual deviance and/or criminal intent, whether because he despised his uncle (as I am satisfied he clearly did) or just as likely because of some scheme with his brother to make money from selling the information to the media, despite his denials that his brother was involved or money was his motive, or both.

31 The interview also puts beyond doubt that Mr Byrne and Mr Fordham had information, at the very latest on May 21 and likely well before that date, concerning criminal conduct of the most serious kind which was properly the province of the police to investigate. In these circumstances, there is no other conclusion open but that they both resolved, with or without the concurrence of senior personnel within TCN Nine, to deliberately withhold that information from police until the segment aired on 28 May to enable them to exploit that information for journalistic purposes. An excerpt of the interview with Mr Tolmie which went to air on 28 May is indicative of this attitude in that they appear to openly sanction Mr Tolmie’s decision as a hardened and convicted criminal to publicly expose his uncle by offering them the mobile phone recording for public broadcast, because of his distrust and dislike for police rather than to inform police.

32 On the defence case, an additional evidential basis is identified upon which it was said I would not be satisfied that the car conversation was a private conversation for the purposes of the Act, even if I rejected the primary submission that Mr Markham was party to a conspiracy with his nephews to extort money from TCN Nine. It relies on the fact that Donnie Tolmie was also listening to the conversation as it was passing between Mr Markham and Mr Fordham in the car because his brother, Adam Tolmie, (with his uncle’s knowledge but not Mr Fordham’s) had his mobile phone activated whilst he was driving the car to enable that to occur. In support of this submission Mr McClintock pointed to the fact that after Mr Markham had been dropped off after settling the terms of the contract with Mr Fordham, and after Mr Fordham and Adam Tolmie had driven back to where Mr Byrne and others, including Donnie Tolmie, were waiting, the listening device worn by Adam Tolmie recorded a conversation with his brother where it is clear beyond doubt that Donnie Tolmie has been listening to the conversation in the car. The relevant extract is as follows:

D Tolmie: You got more than what you expected, hey?
A Tolmie: Fucken oath he did.
D Tolmie: Hey?
Fordham: Could you hear it?
D Tolmie: ….
A Tolmie: He listened to the whole lot.
Fordham: Yeah, yeah. Mate, he’s planning, he’s laid the whole thing out there now, so it’s like, you know
...

I mean at first, at first I wasn’t so convinced, ‘cause he was sort of, but then once he then started saying things for himself, once he then started saying in his own words, you’ll have to dispose of him, etc, well, mate, it’s pretty much there in black and white, you know. What was your reading of it?
D Tolmie: Yeah, of course it’s what he said ...
...
A Tolmie: Oh, yeah. Come up here. Didn’t you fucken say to this cunt, didn’t you tell him not to fucken ---
D Tolmie: I told him, mate, I told him .
A Tolmie: You fucken idiot. I couldn’t fucken believe it. I couldn’t stop him. … I pushed that fucken …
D Tolmie: … fucken … him as well .
A Tolmie: I know. I’m fucken, mate, dead-set, sick in the guts. They can’t do this, they can’t use it without us. We’ll just have to fucken go home. Fuck them off. I’ll stand shoulder to shoulder with the cunts. He’s, he’s, what he’s got there is worth millions .
D Tolmie: Mmm .
…

A Tolmie: … I just thought he’d shut his fucking mouth and stick to ---
D Tolmie: I told him not to say anything .
A Tolmie: --- the fucking … I said, don’t talk about money, don’t talk about murder. He’s talking about yeah, yeah, fucken, knock, getting rid of him. I don’t fucken want him fucken, you know. We might’ve led him down the path, but you fucken told him not to hit the grass. That was the thing .
D Tolmie: That’s right . ...
A Tolmie: Look, we, we --
D Tolmie: …
A Tolmie: No, that’s right. I know that. Don’t you think I know that? All I can see is me fucking getting in trouble .
D Tolmie: That’s right .
A Tolmie: That’s all I can say .
D Tolmie: Mmm .
A Tolmie: And sticking up for him .
D Tolmie: Mmm.
A Tolmie: That’s why I said to you at … fucken …
D Tolmie: I told him .
A Tolmie: I know you, I know you did, Donny …
(underlined exchange is a whispered conversation out of Mr Fordham’s hearing)

33 In so far as concerns the irrefutable fact that Donnie Tolmie was also listening to the car conversation, albeit without Mr Fordham’s consent, the prosecution submitted that this does not support a finding that it is reasonably possible that Mr Markham knew that was occurring. The prosecution submitted that the fact that Mr Markham had been advised by his nephew not to talk about money or murder when he met with the putative hit man was entirely consistent with the joint concern of the Tolmie brothers that they not be exposed to the risk of being charged with committing the criminal offence of solicit to murder in the course of their objective of somehow selling the story to TCN Nine after having cynically manipulated their uncle into vocalising his sadomasochistic desires and paying to have them actualised. According to the prosecution, because Mr Fordham had absolute control of the conversation in the car, control which he exercised more than once when Adam Tolmie tried to join in the conversation, Mr Markham was lured by Mr Fordham’s insistence and inveigling to consider and approve of the escort being killed, and it was this that caused Adam and Donnie Tolmie the concern that they spoke about on the unedited recording extracted above and not, as the defence would have it, that he had failed to follow a script the three of them had settled upon. I accept the prosecution’s analysis.

34 In the result, I am satisfied that both the mobile conversation and the car conversation were private conversations as defined in s 3 of the Act.

The offences with which Mr Fordham is charged

35 Mr Fordham was charged with four separate offences involving breaches of s 5(1)(b), s 6(1) and s 7(1) of the Act.

36 The first was that he used a listening device on 21 May 2008 to record a private conversation that he was a party to contrary to s 5(1)(b) of the Act. This charge concerned the car conversation. That section provides:

(1) A person shall not use, or cause to be used, a listening device:
(a) …
(b) to record a private conversation to which the person is a party.

37 The prosecution case was that that each of the elements of this offence had been made out to the criminal standard, and that Mr Fordham had failed to discharge the onus on him to establish any of the statutory defences specifically provided for in s 5(3) of the Act, namely that:

(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or
(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, or
(ii) the recording of the conversation is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

38 Mr Fordham is also charged with two offences of communicating a record of the car conversation to members of the viewing public who watched the broadcast of A Current Affair on 28 May 2008 and on 29 May 2008. These offences are laid contrary to s 7(1) of the Act. That section provides as follows:

A person who has been a party to a private conversation and has used, or caused to be used, a listening device to record the conversation (whether in contravention of section 5 or not), shall not subsequently communicate or publish to any other person any record of the conversation made, directly or indirectly, by the use of the device.

The no case submission

39 It has become necessary to consider in detail the precise terms in which Mr Fordham was charged under s 7 of the Act in order to the deal with the submission, advanced on his behalf at the end of the proceedings, that the two summonses should be dismissed because they failed to disclose an offence known to law by reason of the omission of the word “private” to describe the conversations particularised as the subject of those specific charges. It was also submitted that any application by the prosecution to amend the charges after the close of the evidence should be refused.

40 The proceedings against each of the defendants were commenced in May 2009. At the commencement of the hearing before me the prosecution sought leave to amend various of the summonses laid against each of the defendants so as to provide, so far as I was given to understand at the time, the appropriate level of particularity with respect to each breach of the Act that was to be prosecuted. Mr McClintock did not object to leave being granted. In these circumstances none of the defendants were invited to re-plead to any of the charges.

41 Mr Fordham did not demur to the summonses charging breaches of s 7(1) of the Act in accordance with the requirement in s 17 of the Criminal Procedure Act 1986. I also note that at the close of the prosecution case there was no submission advanced that there was no case to answer in respect of those particular charges. Instead, the challenge to the form of the charges against Mr Fordham for breach of s 7 of the Act was raised for the first time in written submissions filed in advance of oral submissions by both parties. Given the very considerable overlap in the charges against all defendants, and the commonality of evidence the prosecution relied upon in support of its case against all defendants, I am satisfied that both Mr Fordham (and his legal advisors) were in no doubt that the omission of the word “private” to describe the conversation the subject of each of the two breaches of s 7(1) laid in the amended summons was an oversight by the person who drafted the charge or, more likely, redrafted the charge in advance of the first day of the hearing when final amendments were made. Mr Pickering of counsel, who appeared for the prosecutor, assumed professional responsibility for the error.

42 The Criminal Procedure Act makes provision for the amendment of an indictment which for the purposes of these proceedings, includes the summonses by which the summary proceedings were commenced. Section 16(2) of the Criminal Procedure Act provides that no objection may be taken or allowed to any indictments on the grounds of any variance between the indictment and the evidence used at the proceedings for the offence charged in the indictment. That section is not available however where, as here, the summonses did not disclose all the essential legal elements of the offence charged against section 7(1) of the Act. Section 21(1) of the act does however allow an amendment to an indictment to cure a defect of that kind. It is cast in the broadest terms permitting a defective indictment to be amended having regard to the merits of the case and when the amendment can be made without injustice. Section 21(4) provides that an indictment may be amended, either before trial or any stage during the trial, either with leave or with the consent of the accused.

43 I am satisfied that leave should be granted to amend both of the summonses to include the word “private” as the necessary descriptor of both the car conversations in each, a record of which Mr Fordham allegedly communicated in breach of s 7(1) the Act. Counsel was unable to identify any prejudice that would result from the amendment the prosecutor seeks. The fact that Mr Fordham might be exposed to a conviction is not the irreparable prejudice of the kind to which the section is directed (see Borodin v R [2006] NSWCCA 83).

44 It was submitted on his behalf that even accepting that he used a listening device to record the car conversation as a private conversation (which is disputed) the prosecution failed to establish that he communicated a record of that conversation to members of the viewing public in breach of s 7(1) on both 28 and 29 May, by simply being the person who participated in the car conversation in the segment others decided should be broadcast. It was submitted that those who authorised or decided that the segment should be broadcast are those who are properly described as communicators of a report of the private car conversation for the purposes of criminal sanction under s (7)(1). There is no evidence, it was submitted, that as a reporter of A Current Affair, Mr Fordham had any role in deciding what would be the final version of the segment that was broadcast on either 28 or 29 May, and in these circumstances he should not have criminal liability as a communicator attributed to him under the section.

45 If the prosecution had made out its case on each of the two s 7(1) offences Mr McClintock submitted Mr Fordham had discharged the onus of establishing the statutory defence in s 7(2)(d) of the Act on the basis of what is said to be his legitimate interest in communicating a record of the car conversation to members of the viewing public because of what it revealed about Mr Markham’s criminal conduct or criminal intent in the public interest.

46 In my view, this articulation of the operation of the statutory defence in s 7(2)(d) is wholly unsupported by any evidence. I do not, however, need to consider the question of the public interest given my findings on the question of whether Mr Fordham used a listening device, an element that has to be proved for liability under s 7(1) to attach.

Did Mr Fordham use a listening device to record the car conversation?

47 It was not in dispute that the car conversation was recorded on 21 May 2008 by a listening device as defined in the Act. “Listening device” is defined to include:

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

48 What was in dispute was whether Mr Fordham used a listening device to record the car conversation and whether Mr Byrne, and/or TCN Nine, caused a listening device to be used to enable that to occur.

49 Mr Tolmie gave evidence that Mr Byrne told him that the car he was provided with to pick up Mr Markham from Bondi by prearrangement on 21 May had been outfitted with a camera to film the conversation that it was expected Mr Markham and Mr Fordham would engage in as they discussed and settled the terms of the contract killing. Mr Tolmie gave unchallenged evidence that he was fitted with a listening device to his body by technicians under instruction from Mr Byrne to facilitate the recording of that conversation before he went to collect his uncle. He said that Mr Fordham was present when he was outfitted with the listening device and later when it was removed. He did not see Mr Fordham wearing a listening device, being fitted with a device or having a device removed from his body.

50 It is the prosecution case that the clarity of the recording of the conversation between Mr Fordham and Mr Markham in the car compels the finding that Mr Fordham was also wearing a listening device.

51 Mr McClintock submitted that the prosecution had failed to establish proof of an element of both the charge under s 5(1)(b), (and the charge under s 7(1)) in that it failed to prove that Mr Fordham personally used a listening device in the car conversation, as distinct from participating in a conversation that he knew was being recorded by a listening device, either because he knew Mr Tolmie was wearing a device or because he knew or expected that there would be an audio track on the video camera installed in the car that he was travelling in.

52 The prosecution opened its case on the basis that there would be no evidence as to the specific device that was used to record the conversation in the car, or any evidence about the use or installation of the device from a technician. While this might be understandable in the circumstances where the technicians were in the employ of TCN Nine, it was open to the prosecution to call evidence to establish the range or capacity of a listening device worn by a person in the driver’s seat of a four door sedan to record a conversation passing between two people seated (respectively in the passenger seat where Mr Markham was seated and the rear seat behind the driver where Mr Fordham was seated) such as might have supported the inference that the clarity of the car conversation cannot reasonably be explained by the device that was attached to Mr Tolmie. In the absence of evidence of that kind (or indeed any evidence at all as to the range or function of devices worn on a person to record a private conversation, or the quality or otherwise of any recording made by use of such a device) I am simply not able to draw the inference the prosecution contend for to the criminal standard, the more so when there is evidence in the prosecution case that Mr Byrne arranged to have audio equipment installed in the car which may as likely explain the clarity of the recording. The fact that Mr Markham is not able to be heard as clearly as Mr Fordham when they were on different occasions seated in the front seat may reasonably be explained by the fact that they speak with different levels of articulation or elocution.

53 Although there is no doubt that Mr Fordham was aware the car conversation was being recorded given that he was present when Mr Tolmie was fitted with a device and knew that the car had been installed with audio equipment (and likely actively participated in the arrangements to enable that to occur), in my view he does not by that conduct alone “use” a listening device.

54 Since his use of a listening device is an element in an offence against both s 5(1)(b) and s 7 of the Act he must be acquitted of those charges.

Did Mr Fordham communicate a record of the car conversation on 28 May 2008?

55 Mr Fordham is further charged with knowingly communicating to members of the public who watch television programs on Channel Nine a report of a private conversation that came to his knowledge as a result of the use of a listening device by someone else, contrary to s 6(1) of the Act. That section provides as follows:

A person shall not knowingly communicate or publish to any other person a private conversation, or a report of a private conversation, that has come to the person’s knowledge as a result, direct or indirect, of the use of a listening device in contravention of section 5.

56 This offence concerns the mobile phone conversation the subject of the segment aired on 28 May 2008 that came to his knowledge as a result of a listening device being used by Mr Tolmie in breach of s 5 of the Act.

57 Mr McClintock submitted that although it was conceded that the prosecution had proved that Mr Tolmie had used a listening device to record a conversation with his uncle, and that a report of that conversation had come to Mr Fordham’s knowledge by reason of him either being nominated or volunteering as the reporter of the segment concerning Mr Markham, they had failed to prove that he had knowingly communicated a report of that conversation by reason only of his involvement as a reporter on the segment broadcast on A Current Affair on 28 May 2008.

58 In order to resolve that question it is necessary that I examine the content of the segment that was in fact broadcast that evening. The segment includes some face to camera reportage by Mr Fordham and some voice-over components, also by Mr Fordham. It also includes a total of seven separate excerpts of the car conversation, which were also accompanied by some voice-over commentary by Mr Fordham where he identifies himself as the hit man speaking with Mr Markham in the car.

59 Critically, so far as the charge under s 6(1) is concerned, Mr Fordham also interviewed Mr Byrne (nominated as a senior producer of A Current Affair), where Mr Byrne described the circumstances in which he first became aware of the arrangements Mr Fordham had described as:

…something that has never been seen before on Australian TV... A powerful man ordering a contract killing … of a complete stranger.

60 Under questioning by Mr Fordham, Mr Byrne informed the viewing public that an anonymous caller offered him information about a planned murder - the caller saying he had been asked to kill a man - and that he arranged a meeting with that person. Mr Byrne went on to say that when he met with Mr Tolmie and learned something about him, including the fact that he was a man with a lengthy criminal history. He also said Mr Tolmie wanted to play him a recorded conversation. It was at this time that an excerpt of the phone conversation was broadcast with accompanying subtitles. Mr Byrne was shown on camera holding a mobile phone to his ear in a café with Mr Tolmie sitting opposite him. The following exchange then passed between Mr Fordham and Mr Byrne with Mr Byrne occupying the role as the interviewee face to camera:

Mr Fordham: What (else) did you hear on the tape?
Mr Byrne: It was sickening, gruesome and unbelievable.

61 The question is whether Mr Fordham’s interview with Mr Byrne about the mobile conversation in this segment infringes s 6(1) of the Act. That is, whether by interviewing Mr Byrne about the mobile conversation he has knowingly communicated a report of the mobile conversation to the viewing public.

62 As Finlay J observed in Miller v TCN Channel Nine (1988) 36 A Crim R 92 when considering the elements of an offence under this section the word “communicate” is an ordinary word well understood. His Honour noted the shorter Oxford English dictionary includes as a meaning of communication:

To give another as a partaker; to impart, to infer; transmit and especially to impart (information etc); to inform a person of (something).

63 The section distinguishes between communicating a private conversation and communicating a report of a private conversation, with both conduct constituting a breach of the section. Although Mr Fordham does not recite the words of the private conversation passing between Mr Tolmie and Mr Markham, he does introduce the topic of the mobile conversation and the way it came to the attention of Mr Byrne as a producer of A Current Affair as part of the unfolding of the story. There can be no doubt that it is by his questioning of Mr Byrne that the mobile conversation is both spoken about and its content is described, albeit by Mr Byrne. In these circumstances I am satisfied beyond reasonable doubt that Mr Fordham was party to communicating a report of a private conversation and that, in that capacity, he has breached the prohibition in section 6(1) of the Act.

The offences with which Mr Byrne is charged

64 Mr Byrne is charged with four offences, including causing a listening device to be used to record a private conversation to which he was not a party contrary to s 5(1)(a) of the Act, and three breaches of s 6(1) by knowingly communicating to the viewing public a report of the car conversation on 28 and 29 May 2008 and the mobile conversation of 28 May 2008.

65 The breach of s 5(1)(a) is said by the prosecution to be established beyond doubt by Mr Byrne’s admissions to police on 29 May 2008 that in anticipation of the meeting with Mr Markham on 21 May he arranged for a car, with a camera and audio recording equipment installed, to be available for the purpose of recording the conversation Mr Fordham was expected to have with him. He went on to tell police that that car was then driven to Bondi where Mr Tolmie was given the keys, after which Mr Tolmie drove Mr Fordham to where Mr Markham was collected outside a post office. He did not inform police that he had arranged for Mr Tolmie to wear a listening device, although as I noted earlier, this evidence was given by Mr Tolmie and was not the subject of any challenge.

66 It was submitted on Mr Byrne’s behalf that, at its highest, this evidence failed to establish to the criminal standard that he caused a listening device to be used to record the car conversation.

Did Mr Byrne cause to be used a listening device to record the car conversation?

67 In order for the prosecution to prove that Mr Byrne caused the listening device worn by Mr Tolmie to be used to record a private conversation, it is necessary to establish that Mr Byrne was in a position to exercise control over Mr Tolmie as the person who actually used the device, and that he did in fact exercise that control. As Finlay J noted in Miller v TCN Channel Nine at 107 the principles laid down by the High Court in O’Sullivan v Truth & Sportsmen Ltd (1957) 96 CLR 220 at 228 are determinative of this issue:

“Before a man can be convicted of causing he must be in a position of dominance and control so as to be able to decide whether the act should be done or not, and it must be established that he gave some order, command, direction, or authority to the person doing the act.”
Kitto J said succinctly (at 231):
"Certainly encouraging the doing of an act is not the same thing as causing it ... The truth is, I think, that one person cannot be said to cause another's act unless not only does the former express it as his will that the act shall be done by the latter but the latter's decision to do it is a submission to the former's will, that is to say a decision to make himself the instrument of the former for the effectuation of his will."

68 I am satisfied that in applying that criteria to the evidence in this case that the prosecution has established beyond reasonable doubt that Mr Byrne caused the listening device that Mr Tolmie was outfitted with to be used to record the conversation in the car. I am also satisfied that the technicians who supplied the device, and who fitted it to Mr Tolmie’s body, did so on Mr Byrne’s authority and in exercise of the authority that vested in him as a producer of the programme to direct that it be done. I am also satisfied that Mr Byrne did not merely encourage Mr Tolmie to wear the device (which I accept had been rendered operative by the technicians) but he arranged that it should be available for that purpose, and that Mr Tolmie effectively submitted to the strategy Mr Byrne had designed to ensure that the conversation in the car was recorded.

69 It is not quite so clear that Mr Byrne caused a listening device to be used by directing that the car be outfitted with audio recording equipment since there is no evidence as to how that equipment was activated or used to record the conversation. That is, there was no evidence as to whether the device was being activated or monitored from a location remote from the motor vehicle by technicians under Mr Byrne’s direction, or whether it was simply activated by them when control of the vehicle was handed over to Mr Tolmie and left to run until the end of the operation, or whether it was activated by some other means. However, since I am satisfied that Mr Byrne caused Mr Tolmie to use a listening device to record the car conversation, the charge that he caused a listing device to be used in contravention of s 5(1)(a) of the Act is made out.

70 Mr Byrne is further charged with knowingly communicating a report of the car conversation to members of the viewing public who watch Channel Nine on two separate occasions, contrary to s 6(1) of the Act, namely by his inclusion of edited parts of that conversation in the segments broadcast on 28 and on 29 May 2008 for the purposes of the broadcast, and knowingly communicating a report of the mobile phone conversation on 28 May 2008, in this instance by the inclusion of edited portions of that conversation and his discussion about it and its content.

71 In respect of these offences it was submitted that despite signing an internal email to David Gyngell as “a supervising producer” of A Current Affair, and being introduced to the viewing public on 28 May 2008 by Mr Fordham as “a senior producer” of the program - the role he ascribes to himself in his statement to police the following day - I would not be satisfied that the prosecution has proved that he was a person who communicated a report of both conversations in the absence of any evidence that he in any way authorised, or had responsibility for authorising, the broadcast of that material. Having regard to the breadth of the concept of communication noted by Finlay J in Miller v TCN Channel Nine in [64] above, I do not consider that the prosecution was obliged to prove that Mr Byrne had authorised, or had the responsibility of authorising the broadcast, before he is criminally liable as a person who communicated a report of both conversations.

72 Despite there being nothing definitive about the role and or the function of a producer of a television program (and no evidence led in the proceedings as to Mr Byrne’s role or function as a supervising or senior producer of A Current Affair), the evidence does establish that it was Mr Byrne who had the direct dealings with Mr Tolmie, and Mr Byrne who sought to persuade his superiors to broadcast the story. In the email to Mr Gyngell on 18 May 2008, he sets out a detailed account of his conversations with Mr Tolmie. Without naming him he says he has been:

…cultivating him for a few weeks... working on a story about how he has been approached to be a hit man that and take out a male model … whether this comes off will not I think it would be worth my while me bringing him in to speak with someone…. If not I’ll write his book!

73 He concludes the email by saying to Mr Gyngell “let me know if any of this interest you...”. There is no evidence of an email in response or any evidence that Mr Gyngell received or read the email.

74 In his statement to police Mr Byrne sets out the circumstances in which he came into contact with Mr Tolmie. He said that after listening to the conversation on the mobile he told Mr Tolmie that he would need to discuss the matter with his colleagues before taking the matter further. He said he undertook some research and then arranged a further meeting with Mr Tolmie. It was at this meeting that he claimed that after he told Mr Tolmie that he needed confirmation that the man on the phone was in fact Mr Markham, that Mr Tolmie proposed setting up a meeting with his uncle. According to Mr Byrne, Mr Tolmie also told him that the escort advertised in the Wentworth Courier and that he could provide a copy of the advertisement and a photograph together with proof that Mr Markham had paid him $12,000 to hire someone who would brutalise and torture the escort. Again according to Mr Byrne, the meeting concluded with him inviting Mr Tolmie to get back to him when he had “something to move the story on besides the recorded (mobile) conversation”.

75 He said that a couple of days later, after a few intervening phone calls, he met with Mr Tolmie again, who was by this time able to confirm, by reference to an advertisement in the Wentworth Courier, that the escort working under the name “Aalex“ was the person to be killed. He also told Mr Byrne that his uncle had been pressing him for progress on the arrangements after paying $12,000 and that a meeting with him could be arranged. Mr Byrne went on to tell police that he told a person he described as “his boss” about the progress with the story and that he was informed (by him) that Mr Fordham had been allocated to work with him, and that he arranged the camera crew and car.

76 The statement goes on to set out the supervising role that he performed on 21 May when the car conversation was recorded, and thereafter the meeting that he arranged with Mr Dunshea and the filming of that encounter, doubtless for the purposes of enhancing the story’s appeal.

77 I am satisfied that in these circumstances Mr Byrne produced for broadcast over the Nine Network over consecutive nights the two segments of A Current Affair concerning Mr Markham and, that at the very least, he participated with Mr Fordham in communicating to viewers a report of the mobile conversation in the circumstances set out in [9] above. In so far as the report of the car conversation is concerned, by making arrangements for the conversation to be secretly recorded and, as a senior producer of the program, by supervising or participating in styling the content of the segment that went to air, I am also satisfied that he communicated a report of that conversation to members of the viewing public.

78 Accordingly, I am satisfied that he has committed each of the three breaches of s 6(1) of the Act with which he is charged.

The offences with which TCN Nine is charged

79 TCN Nine is charged with the same offences as those charged against Mr Byrne, namely that it caused a listening device to be used to record the car conversation to which it was not a party contrary to s 5(1)(b) of the Act, and that it communicated the information derived by that means in successive broadcasts of A Current Affair on 28 and 29 May 2008 contrary to s 6(1). The company is also charged with an additional breach of the Act constituted by what is alleged to be its possession of a record of the car conversation contrary to s 8(1) of the Act between 21 May 2008, when the car conversation was recorded by its employees, and 28 May 2008, when it was given to police by Mr Fordham. Section 8(1) of the Act provides that:

A person shall not possess a record of a private conversation knowing that it has been obtained, directly or indirectly, by the use of a listening device in contravention of section 5.

80 Although s 29 of the Act specifically provides for a corporation to be susceptible to being charged with a contravention of the Act, it is principally directed to deeming directors and managers of a corporation to have also committed an offence where the corporation is liable, unless the contrary is shown. There are no provisions in the Act directed to attributing knowledge to a corporation through its employees or executive officers, or otherwise rendering the corporation vicariously liable through the acts of its employees or executive officers.

81 Accordingly, the question of whether a corporation is capable of contravening any of the offence creating provisions in Part 2 of the Act depends upon close consideration of the constituent elements of those offences, and whether the evidence led by the prosecution in this case establishes a breach of any or all of s 5(1)(a), s 6(1) or s 8.

82 In my view, in the conduct of its case and in final submissions the prosecution failed to appreciate, or to focus sufficiently on the basis upon which criminal liability was to be, or should have been, attributed to TCN Nine under the Act in accordance with what the Chief Justice observed in Director General, Department of Education and Training v MT [2006] NSWCA 270; 67 NSWLR 237 at 243 and what both Allsop P and Ipp JA observed in Presidential Security Services of Australia Pty Ltd v Clinton Joseph Brilley [2008] NSWCA 204 as the proper approach when considering the applicability of a criminal statute to a corporation. The President observed at [4]:

…To the extent that the offence is created by statute, the process of “attribution” of criminal responsibility will principally be, or be at least based on, statutory interpretation of the provision creating the offence: Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500. In such cases, questions such as the need for a guilty mind or mens rea , the nature of that mental state and the person, agent or organ of the company who must have such state of mind will turn on understanding the words of the statutory provision and the will of Parliament.

83 Ipp JA observed at [145] that:

Generally speaking, once a company is capable of committing a particular offence, it may be found guilty of that offence on one of two bases, namely, on the grounds of vicarious responsibility or on the basis that the person who committed the actus reus and had the requisite mens rea was the directing mind and embodiment of the company in the Tesco Supermarkets Ltd v Nattrass [1972] AC 153 sense.

84 He went on to say at [146]:

Whether the company may be found guilty on one or other of these bases depends on the legislation applicable, the nature of the offence in question, and the status and position within the company of the person who performs the acts said to constitute the offence.

85 In final submissions, the prosecutor stated in categorical terms that the case against TCN Nine was based exclusively on the findings of Finlay J in Miller v TCN Channel Nine at 108 and 109 where his Honour found Trans Media Productions Pty Ltd guilty of breaching s 5(1)(a) of the Act, by causing a listening device to be used to record a private conversation to which it was not a party; guilty of knowingly communicating the private conversation recorded in breach of the Act under s 6(1) and possessing the tape upon which the private conversation had been recorded in breach of s 8(1) of the Act. Trans Media was the producer of the Willesee Show which was presented each evening by Michael Willesee, one of its directors. It sold the program to TCN Nine who broadcast the program under licence. A segment produced and sold to TCN Nine, and broadcast by them, included a private conversation recorded by means of a listening device in breach of the Act.

86 It is clear from his Honour’s judgment that the liability of Trans Media under s 5(1)(a) was on the basis of a finding that the company caused its employees, (a sound recordist and a reporter) through its executive producer, to record the private conversation. (This would appear to be based, in turn, on a finding that the company was vicariously liable for the acts of its employees although, as the prosecutor conceded in submissions before me, this did not appear to have been fully argued before his Honour.) His Honour also found the company guilty of possessing the tape upon which the private conversation was recorded on the basis of the evidence that the tape was taken to Trans Media’s offices where it was edited and reproduced for sale to TCN Nine, and that it was in possession of the tape in that process.

87 His Honour was also satisfied that the company took an active part in transmitting the program to the public and, on this basis, was guilty of knowingly communicating the private conversation that came to its knowledge as a result of a breach of the Act. The basis upon which his Honour was satisfied that the private conversation came to the knowledge of the company in this way was not elaborated upon. His Honour simply stated that it followed from his other findings, which I interpret to mean that his Honour was satisfied that the company knowingly possessed the tape. As to the element of communication His Honour said at 109:

Trans Media did not simply sell the programme it produced to Channel Nine, it took an active part in transmitting that programme to the public. Its director, Mr Willesee, appeared live as chief presenter of the subject Willesee programme which, between his comments, telecast per medium of Channel Nine the private conversation which had come to its knowledge as a result of a prohibited use of a listening device.
I am satisfied that Trans Media thereby communicated the private conversation to members of the public being viewers of television Channel Nine. It matters not that Channel Nine, as the licensed telecaster, also communicated the programme to its viewers. A dual responsibility for such communication arises no doubt in a host of cases.

88 Notably, although for reasons that are not recited in the judgment, the case against TCN Nine as the first defendant, was dismissed at the close of the prosecution case, his Honour being satisfied it had no case to answer.

89 Mr McClintock submitted that I would not adopt his Honour’s approach to TCN Nine’s liability in this case for a number of reasons. Firstly, that on its proper construction the charge under s 5(1)(a) cannot be committed by a company. Secondly, the prosecution have not pleaded its case on the basis that that the company’s liability is vicarious through the actions of Mr Byrne as its agent (assuming that was a basis for the attribution of criminal responsibility to Trans Media in Miller). Thirdly, so it was submitted, the evidence is insufficient to attribute criminal liability to TCN Nine on the basis of the principle in Tesco Supermarkets Ltd v Nattrass [1972] AC 153. Unlike Miller where there was evidence that Trans Media was the producer of the program with the presenter of the program being one of the directors such as may have entitled his Honour to be satisfied that the executive producer was the embodiment of the company, in this case the prosecution have led no evidence at all as to the corporate structure of TCN Nine, the identity of its directors or executive officers and the role, if any, they might have in deciding upon, or being consulted upon, the form and content of A Current Affair.

90 Equally as tellingly, so it was submitted, there was no evidence led as to Mr Byrne’s role as a producer of the program or his relationship with the company and its senior executives in that capacity, and I would be slow to infer that he had any particular role or responsibility to either where criminal responsibility is sought to be attributed to the company by his actions. It was also submitted that the views of Ipp JA in Presidential Security Services of Australia (with which Beazley JA agreed) should be given weight in this case

The charge under s 5(1)(a)

91 Mr McClintock submitted that the case pleaded against TCN Nine in respect of the charge under s 5(1)(a) did not expose it to criminal liability because, as a fictional legal entity, the company was not legally competent to be a party to a conversation, and that the charge requires proof of that fact, albeit in the negative, before a conviction could issue. It was submitted that the definition of “party” (in relation to a private conversation) in s 3 of the Act as:

(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

puts this beyond doubt since it necessitates the further implication that a conversation (to which a person is a party) consists of words being exchanged between persons capable of speaking and listening and a corporation simply does not have this capacity.

92 In Presidential Security Services of Australia Allsop P accepted that consistent with the application of s 10(1) of the Criminal Procedure Act some offences by their nature can only be committed by human beings. Section 10(1) provides:

Unless a contrary intention appears, a provision of an Act relating to an offence applies to bodies corporate as well as to individuals.

93 As his Honour said at [12]:

…This contrary intention might appear from one or both of two related sources: either on the proper construction of the provision having regard to its text, context and history it can be seen as only intended to speak to the criminal responsibility of individuals, or the crime is one that intrinsically is not capable of being committed by a body corporate.

94 I am satisfied that a corporation is not susceptible to being charged with any of the offences in Part 2 of the Act which require proof of the fact that it was (or was not) party to a private conversation, and that the prosecution’s reliance upon the implicit finding of Finlay J in Miller to charge TCN Nine with the breach of s 5(1)(a), was in error.

95 Even if I am wrong in this view, I am unable to conclude to the criminal standard on the evidence led by the prosecution that TCN Nine, as the corporate employer of Mr Byrne - a producer of A Current Affair, caused the listening device to be used to record the private conversation in the car according to the test articulated in O’Sullivan v Truth & Sportsman Ltd as set out in [69] above.

96 Accordingly the charge under s 5(1)(a) of the Act is dismissed.

97 In so far as the balance of the charges against TCN Nine is concerned I am not satisfied that the prosecution has established that the company is criminally liable for breaches of s 6(1) or s 8 of the Act where it has failed altogether to identify who is the persona of the company, and what that person’s sphere of influence is, such that the company can be said to have (knowingly) possessed the record of the mobile conversation, or knowingly communicated the record of that conversation (or the car conversation) as a licensed broadcaster.

98 In Tesco Supermarkets Ltd v Nattrass, Lord Reid, at 170, stated the relevant principle as follows:

A corporation ... must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks though the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability.

99 In Presidential Security Services of Australia Allsop P was critical of the primary judge's failure to recognise the need to attribute the conduct of the individual to the company because of the need to make relevant findings about the individual’s status and authority such as to make their acts the acts of the company. As he noted, in some situations it may be straightforward. But even in the case where an individual is the managing director and the company’s sole employee, such that he would sensibly be regarded as its mind and will, the question still has to be asked for what purposes does he exercise that control. His Honour went on to say at [5]:

…If, in committing the acts which are impugned as unlawful, he was seeking to perform or execute the defendant’s responsibilities as security guard, there may be no difficulty attributing his acts and his mental state to the defendant, even though they are unlawful: Meridian Global Funds Management and Director of Public Prosecutions v Gomez [1993] AC 442. The proposition that a corporation cannot be criminally liable because criminal acts necessarily go outside the objects (presumed lawful) of a corporation has not been accepted by the courts: Linehan v The Australian Public Service Association (1983) 67 FLR 412 at 435-436 (per Fitzgerald J); see generally Davies PL Gower and Davies’ Principles of Modern Company Law (7th ed) pp171ff. Such a proposition can be seen to rest on what has been said to amount to a fallacy that civil capacity and criminal responsibility are governed by the same considerations: Welsh RS “The Criminal Liability of Corporations” (1946) 62 LQR 345 at 347 citing Professor Winfield in The Law of Tort (3rd ed) pp105-106. Such a proposition is also difficult to sustain in the face of the Corporations Act, ss124 and 125.

100 Even were the prosecution to have approached proof of the company’s guilt by alleging that it was vicariously liable for the actions of Mr Byrne (and Mr Fordham) I note the reservations Ipp JA expressed as to the application of that principle where a criminal offence has mens rea as an element. His Honour said:

[147] … This is traceable to at least the eighteenth century. In Huggins (1730) 2 Stra 883, Raymond CJ stated at 885:
“It is a point not to be disputed but that in a criminal case the principal is not answerable for the act of his deputy, as he is in civil cases; they must each answer for their own acts, and stand or fall by their own behaviour.”

[148] As Lord Morris and Lord Diplock explained in Tesco Supermarkets Ltd v Nattrass , the rejection of vicarious liability in the criminal context is based upon a refusal to attach criminal liability to a person absent a guilty mind. Lord Morris said, (at 179):
“In general, criminal liability only results from personal fault. We do not punish people in criminal courts for the misdeeds of others. The principle of respondeat superior is applicable in our civil courts but not generally in our criminal courts."
Lord Diplock said, (at 199):
“To constitute a criminal offence, a physical act done by any person must generally be done by him in some reprehensible state of mind. Save in cases of strict liability where a criminal statute, exceptionally, makes the doing of an act a crime irrespective of the state of mind in which it is done, criminal law regards a person as responsible for his own crimes only. It does not recognise the liability of a principal for the criminal acts of his agent: because it does not ascribed to him his agent's state of mind. Qui peccat per alium peccat per se is not a maxim of criminal law."

See, generally, Ford’s Principles of Company Law, 13th ed (2007) Butterworths at para 16.120 and R v Murray Wright Ltd [1970] NZLR 476 (New Zealand Court of Appeal).

[149] I reiterate that, absent a statutory provision to the contrary, vicarious liability has been rejected as a means of establishing mens rea in crimes requiring proof of that element (as otherwise criminal guilt could be found without the offender possessing the necessary intent).”

101 In this case however, as I have sought to make clear, the charges against TCN Nine under s 6(1) and s 8 of the Act are dismissed because of a lack of evidence not because of any concluded view as to whether vicarious liability was an available approach to proof in the facts of this case.

Orders

102 In summary, the orders I make are as follows:

1. Each summons in which TCN Channel Nine Pty Ltd is charged with a breach of the Listening Devices Act is dismissed.
2. Each summons in which Mr Fordham is charged with a breach of s 7(1) of the Listening Devices Act is dismissed.
3. The summons in which Mr Fordham is charged with a breach of s 5(1)(b) of the Listening Devices Act is dismissed.
4. In respect of the offence laid pursuant to s 6(1) of the Listening Devices Act that on 28 May 2008 Mr Fordham knowingly communicated a report of a private conversation, I find the offence proved but dismiss the summons as provided for in s 10(1)(a) of the Crimes (Sentencing Procedure) Act
5. In respect of each of the four offences against Mr Byrne for breaches of s 5(1)(a) and s 6(1) of the Listening Devices Act , I find the offences proved but dismiss each summons as provided for in s 10(1)(a) of the Crimes (Sentencing Procedure) Act.

19/08/2010	-	Amendment to order no. 5 - Paragraph(s) 102 and coversheet
27/08/2010	-	See [2010] NSWSC 958 - Paragraph(s) Coversheet and para 102