Director of Public Prosecutions (NSW) v Fordham

The Director of Public Prosecutions (NSW) brought proceedings against Fordham, who was alleged to have contravened several sections of the Listening Devices Act 1984. Fordham was accused of causing the prohibited use of a listening device to record private conversations, communicating these conversations, and being in possession of a record of a private conversation. The case was heard in the Supreme Court of New South Wales, where the Director sought to amend the summonses to include all elements of the alleged offences after the prosecution had closed its evidence.

The central legal issues in the case were whether the conversations recorded were private as defined by the Act, what it means to cause another to record a private conversation using a listening device, whether a corporation can be held liable for offences under the Act if it is not a party to a private conversation, and the application of the ‘rules of attribution’ to corporate criminal liability in this context. The court also needed to determine whether a corporation could be vicariously liable for an offence that requires mens rea.

The Supreme Court of New South Wales found that neither of the conversations recorded was private as defined by the Act, as both were in circumstances where the parties could reasonably expect the conversation to be overheard. The court clarified that to cause another to record a private conversation using a listening device involves inducing or assisting in the recording of such a conversation. The court held that a corporation could be liable under the Act even if it is not a party to a private conversation, provided it has the necessary mens rea. The ‘rules of attribution’ were applied to attribute liability to the corporation based on the actions of its agents or employees. The court ruled that a corporation could be vicariously liable for an offence involving mens rea if the requisite intent is found in the relevant individual who acted on behalf of the corporation.

The final orders of the court were that the summonses would be amended to include all elements of the alleged offences, and the proceedings against Fordham would continue with the amended charges. The court determined that the prosecution could proceed with the case under the amended summonses, allowing the Director to address the full scope of the alleged offences.