Gin v Hing
[2019] FamCA 779
•29 October 2019
FAMILY COURT OF AUSTRALIA
| GIN & HING | [2019] FamCA 779 |
| FAMILY LAW – EVIDENCE – use to be made of recordings taken by a mobile telephone and from skype conversations – whether unlawful telecommunications – whether s 138 Evidence Act permits receipt of transcriptions of those recordings – trial of proceeding adjourned part heard after five days of hearing – application to adduce evidence tending to put in issue the circumstances in which transcription of the 13 separate mobile telephone calls and skype conversations were created – whether any unfairness occasioned by admitting the evidence about the circumstances of the creation of the 13 transcriptions, despite extensive cross-examination already having taken place on those 13 transcriptions – held, further evidence allowed. |
| Commonwealth of Australia Constitution Act (The Constitution) 1900, s 109 Evidence Act 1995 (Cth), ss 97, 103, 138 Family Law Act 1975 (Cth), ss 11C, 60CA, 62G, 69ZT, 69ZU Telephonic Communications (Interception) Act 1960 (Cth) |
| Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 The Honourable Justice Kenneth Hayne AC, Statutes, Intentions and Courts: What Place Does The Notion of Intention (Legislative or Parliamentary) Have in Statutory Construction? (2014) 13(2) Oxford Commonwealth Law Journal 271 |
| APPLICANT: | Mr Gin |
| RESPONDENT: | Ms Hing |
| INDEPENDENT CHILDREN’S LAWYER |
| FILE NUMBER: | MLC | 4528 | of | 2010 |
| DATE DELIVERED: | 29 October 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 21 October 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms R Stoikovska of Senior Counsel with Mr A Combes |
| SOLICITOR FOR THE APPLICANT: | Cornelius Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr F Dixon of Senior Counsel with Mr A Robinson |
| SOLICITOR FOR THE RESPONDENT: | Clancy & Triado |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr D Whitchurch |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Macgregor Solicitors |
Orders
The wife’s oral application made 21 October 2019 seeking leave to file the affidavit of Mr D affirmed 15 October 2019 is dismissed.
Leave is granted for the filing of the affidavit of Mr E affirmed 11 September 2019.
The matter is listed on 11 November 2019 at 9am for a directions hearing in relation to the future conduct of the matter.
The husband, at his expense at first instance, engage a Mandarin interpreter to compare the transcripts referred to in paragraph 7 of the affidavit of Mr F affirmed 13 August 2019 with the audio recordings exhibited on behalf of the respondent husband in these proceedings, and identify errors and omissions, if any.
For the purposes of paragraph 4 herein, such interpreter is to be chosen by the independent children’s lawyer from those appropriately qualified and residing outside the State of Victoria.
The costs of and associated with the aforementioned comparison and the hearing on 21 October 2019 are reserved.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gin & Hing has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 4528 of 2010
| Mr Gin |
Applicant
And
| Ms Hing |
Respondent
REASONS FOR JUDGMENT
Introduction
The estimated duration for this trial turned out to be inaccurate so after hearing the trial of this proceeding for five days the trial was adjourned, part heard, and it was listed for a further five days to commence on 2 December 2019.
At the close of business on the fifth day of the trial, Mr Fabian Dixon, Senior Counsel for the mother, informed me he did not wish to close the mother’s case until he had satisfied himself about a particular evidentiary matter. At the time he did not descend to the detail of the issue.
Following a request to mention the case exchanged by email on 17 October 2019, this case was listed for mention on 21 October 2019. All parties, including the independent children’s lawyer, were heard at length on that day once Mr Dixon SC outlined the basis of his application.
During the mention on 21 October 2019 the mother applied for leave to adduce in evidence two affidavits not previously identified as forming part of the mother’s case. Those affidavits were –
a)the affidavit of Mr D affirmed 15 October 2019; and
b)the affidavit of Mr E affirmed 11 September 2019 and the exhibits thereto.
Before descending to the detail of the application on 21 October 2019, Mr Dixon SC informed me that each affidavit was put forward in order to meet the evidence (he said was frequent) given by the mother in answer to questions put in cross-examination to the effect that the mother challenged the authenticity of the spoken words that were recorded in a document that purported to be the first in a series of transcriptions of 13 sound recordings taken by the father. Mr Dixon SC said the affidavit of Mr D and Mr E emerged for the first time after the mother’s cross-examination had been completed.
On behalf of the mother, Mr Dixon SC submitted that the two affidavits were probative and relevant, that they were necessary in order for me to obtain any semblance of a balanced understanding of the 13 sound recordings and without those affidavits being admitted into evidence, the mother was prejudiced in this proceeding.
On behalf of the husband, Ms Stoikovska SC advanced several contentions in support of her overall position for the rejection of those two affidavits. In no special order, Ms Stoikovska argued that –
a)no, or no adequate explanation had been proffered for the emergence of those affidavits after the mother’s cross-examination and after the mother had spent four full days being cross-examined on the minutiae of words that were said to have been uttered by her and recorded in the 13 sound recordings;
b)in all but a handful of instances the mother had agreed that the transcripts of the 13 sound recordings were accurate and it would be unfair to allow her to recant from that evidence at this late stage of the litigation;
c)in reality, the mother’s real purpose in seeking to rely on the two additional affidavits was her desire to launch an impermissible collateral assault on the father’s credit by contending that the material exhibited to Mr E’s affidavit was contradictory to the material in the transcriptions of the 13 sound recordings;
d)the exhibits to Mr E’s affidavit were not “evidence” within the contemplation of the Evidence Act; and
e)in the interests of conducting a fair trial, the prejudice of allowing this evidence now was irreparable.
Synopsis
For the reasons that follow, in my judgment the affidavit of Mr E is probative and I allow it. I do not allow the affidavit of Mr D.
Relevant factual setting
Not far into the commencement of the case after its being called on for trial, Ms Stoikovska informed me that her client relied on an affidavit through which the transcription of 13 sound recordings, many of which were from the father’s mobile telephone, had been made. A substantial evidentiary debate then followed as Mr Dixon SC, on behalf of the mother, endeavoured to resist the admission of those transcriptions. In reliance mainly upon s 138 of the Evidence Act I gave an ex tempore ruling allowing the transcriptions into evidence. Having had the benefit of more careful and considered reflection on the reasoning for admission of those transcripts I can now state my reasons more exhaustively.
Soon after openings were completed, Ms Stoikovska SC who appeared with Mr Andrew Combes for the father, informed me that a particular affidavit had not been included in the father’s trial material, that the father needed leave to rely upon the material exhibited to that affidavit and Ms Stoikovska sought leave so to do. The relevant affidavit was that of Mr F, a translator who purported to have translated a collection of recorded episodes taken by the father, mostly without the consent of the persons whose voices were discernible in the recordings. The translator exhibited to his affidavit a transcript of several incidents during which various words were spoken by various voices. Each transcript had been transcribed after the spoken words on the sound files had been translated from Mandarin to the English language. Ms Stoikovska told me she needed those transcripts so as to put their contents to the mother when cross-examining the mother. On behalf of the father, Mr Fabian Dixon SC submitted that no explanation had been provided to demonstrate that the affidavit and transcripts should be received having regard to the fact that orders for the filing of trial affidavits required that to be done by a date long passed. A detailed debate then emerged about the basis on which the tender was sought as well as the basis on which the tender was opposed.
It was necessary for me to rule on that evidentiary objection prior to viva voce evidence being commenced, which I did, by allowing the transcriptions of those recordings to be put to the mother. It is useful to narrate the submissions made in support of and in opposition to the admission of those transcripts. That ruling was given ex tempore, as mentioned earlier.
In debate on 21 October 2019 Mr Dixon stated that he again challenged the admissibility of the transcriptions of the 13 sound recordings. While I examined the more important decided cases for the purpose of my ex tempore ruling, for the determination of the debate waged on 21 October 2019 it was necessary for me to examine the learning in greater detail for the purposes of these reasons.
Let me first turn to the debate as it unfolded on the first day of the trial.
Mr F, the person who exhibited the transcriptions of 13 separate recordings said he was requested to translate recordings provided to him by the father of conversations by skype and other forms of telecommunications in which the participants were mainly the father, the mother, the mother’s new husband (Mr D), the child, the father’s new wife (Ms G), occasionally the maternal grandmother and very occasionally the maternal grandfather. The transcripts were divided into discrete incidents commencing on 11 May 2018. The details of the device used for recording were not given except that in relation to an incident at a presentation night at school snow sports in 2018. It was agreed by all that the father used his own mobile telephone to record audio and visual aspects of that event.
The transcriptions set out details in three columns. In the extreme left column was the English name of the speaker, although occasionally a speaker was described by a diminutive (pet) name in the Mandarin language such as Dong Dong to refer to the maternal grandfather, Ying Ying and Waipo to refer to the maternal grandmother, Niu Niu to refer to the child, Nai Nai (the paternal grandmother) and Little Sister to refer to the mother’s daughter with her new husband whose English name is T. Also in the extreme left column was a collection of numbers that indicated the elapsed time of the audio recording at which time a particular recorded exchange occurred. In the middle column was the English version of the words said as many (although not all) of the exchanges were in Mandarin. Until agreement was reached for their deletion, the centre column also contained commentary in square brackets. All words in square brackets were deleted. In the extreme right column were Mandarin characters.
In support of the receipt of the translator’s evidence, Ms Stoikovska SC prepared written submissions that she developed in arguendo. In essence she submitted as follows –
a)the evidence in recorded form bore upon considerations of the best interests of the child enlivening the paramount consideration reposed in s 60CA of the Family Law Act;
b)no telecommunication interception was involved in any of the recordings with the consequence that the evidence was not obtained in contravention of an Australian law;
c)the provisions of the Surveillance Devices Act 1999(Vic) applied to recordings taken on a mobile telephone;
d)to the extent that the relevant recording was made in video form, the video involved the mother and her second husband each of whom knew that he or she was the subject of the video recording;
e)to the extent that the recording was made during a facetime conversation, the prohibition set out in s 11 of the Surveillance Devices Act did not apply in the circumstances set out in s 11(2)(b);
f)under s 11(2)(b) of the Surveillance Devices Act the prohibition on the publication of a private conversation did not apply where the publication was no more than reasonably necessary in relation to the public interest or the protection of the lawful interests of the father;
g)even if a provision of the Surveillance Devices Act had been contravened by the recordings, pursuant to s 138(1) of the Evidence Act the recordings and a transcript of them were nevertheless admissible if their probative value outweighed the prejudice suffered by admitting those recordings into evidence;
h)the evidence as recorded in the transcripts was highly probative and that under s 138 of the Evidence Act it should be received; and
i)in any event, under s 69ZT of the Family Law Act, so Ms Stoikovska SC submitted, evidence that would otherwise have been excluded under the Evidence Act, may nevertheless be admitted in a parenting case.
On behalf of the mother Mr Dixon SC submitted that the transcripts of the recordings should not be allowed into evidence on the basis that they were unfairly prejudicial to the mother. Mr Dixon contended that the transcripts should have been made available earlier than at the commencement of the trial.
It became necessary to survey the authorities that have considered issues relating to attempts to adduce into evidence recordings made by one party.
Central to Ms Stoikovska’s submission that no law of the Commonwealth had been breached in recording any of the incidents covered by the transcripts was the contention that the provisions of the federal Telecommunications (Interception and Access) Act1979 did not apply because no interception of a telecommunication was involved in this case. She cited the decision of Butler J in In the Marriage of Parker & Williams[1] in which constitutional aspects of the legislative forerunner to the Telecommunications (Interception and Access) Act were canvassed. In that case Butler J held that the provisions of the Telecommunications Act covered the field of interception and did not trespass upon the provisions of s 109 of the Commonwealth of Australia Constitution Act. That situation was very different to the issues in this case. In a paper I wrote entitled ‘I’ll Be Watching You! The Latest in Tracking and Listening Devices’[2] I made various observations about interception of telecommunications.
[1] (1993) 117 FLR 1
[2] His Honour Judge J D Wilson QC, ‘I’ll Be Watching You! The Latest in Tracking and Listening Devices’ (Conference Paper, National Family Law Conference – Melbourne, October 2016)
In 1979, the Telephonic Communications (Interception) Act was repealed and it was replaced by the Telecommunications (Interception) Act, being Act number 114 of 1979. In s 6 of the new act, the definition of “interception” was significantly enlarged. The general prohibition was preserved in s 7. However, a person did not engage in conduct that constituted “interception” by being lawfully on premises or in a vessel, vehicle or aircraft in which a telecommunications service was provided by (relevantly) Telecom if that person listened to or recorded a communication passing over the telecommunication system of which that service formed part being a communication made to or from that service (s 6(2)(a)) or one that was received by that service (s 6(2) (c)) or one received as result of a technical defect or operator error (section 6(2)(c)).
But a lasting degree of uncertainty pervaded the application of the 1979 legislation. On 30 June 1993, judgment on a complex question under the 1979 act was handed down by Justice Butler of the Family Court of Australia in In the Marriage of Parker & Williams. On the hearing of the mother's application for custody, she attempted to adduce evidence of four telephone conversations between the father and the children. In the first conversation the mother listened through a handpiece without the knowledge of the participants in the conversation. In the second conversation, the mother listened through a handpiece and then recorded the conversation. In the third and fourth conversations, the father knew the mother was listening. At issue was the question whether the evidence of the four conversations should be rejected under Tasmania's Listening Devices Act (almost identical in terms to its New South Wales counterpart) or whether the evidence of the conversations should be admitted under the federal Telecommunications (Interception) Act.
Butler J refused to admit the evidence of the recorded conversations but the evidence of the other conversations was admitted.
Butler J held that there was no illegality where a party listened to a conversation that was on a “telecommunications system” as defined. On the facts of the case, the receiver and the extension phone used had been supplied by Telecom and were therefore part of a “telecommunications system”. Applying the observations of the High Court in Miller v Miller,[3] the Telecommunications (Interception) Act covered the field of interception of telecommunications.
[3] (1978) 141 CLR 269
Butler J held that the real question was whether the tape recording was an “interception”, especially whether or not, once the words of the speaker left the system (the extension phone) they were capable of “interception”. Butler J held that once the communication left the system, it was no longer protected by the Telecommunications (Interception) Act because it was no longer capable of being intercepted within the system.
Butler J held that the Listening Devices Act regulated the use of certain devices capable of being used for listening to private conversations, something different to the interception of communications within a telecommunications system. Butler J held that while the Telecommunications (Interception) Act covered the field, that enactment said nothing about interception before the sound reached or after it had left the telecommunications system.
Butler J held that the recorded conversation was a “private conversation” to which the father and each child was a “party” and that the Panasonic tape recorder was a “listening device” within the meaning of Listening Devices Act so the recorded conversation was made in breach of the Listening Devices Act and was therefore inadmissible.
As was apparent from Butler J's decision, the emphasis for the purpose of admissibility under the Telecommunications (Interception) Act was on the “telecommunications system”. The handset and the extension phones were part of that system. If the communication left the telecommunications system by being recorded the protection conferred by the federal legislation evaporated.
Pausing there, it may seem anomalous that a person was permitted to give viva voce evidence about a conversation on a phone extension with all the flaws inherent in witness recollection of what was said, yet tape-recorded evidence of the same conversation, being indisputably more accurate, was inadmissible. It is difficult to find an acceptable rationale for the admission of evidence in viva voce form yet the rejection of evidence in tape-recorded form merely on the ground of the “telecommunications system”. After all, one would rightly think the recorded version of the same conversation was likely to be more accurate than was the usual more traditional who-said-what-to-whom style evidence a witness might offer, at times years after the event.
The ex tempore decision of Dawe J in Walter & Walter[4] handed down on 8 February 2006 concerned tape recordings made in one of three situations. The first involved messages left on an answering machine. The second involved tape recordings of conversations between the husband and wife (sometimes involving children). The third involved the wife talking to her children following a conversation between the husband and wife in circumstances where the wife’s hand piece of the telephone had not been properly replaced so as to terminate the call. Evidence revealed that the wife was unaware that the husband was recording the telephone calls. Counsel for both parties conceded that the recordings were not of “interceptions”, as defined. Dawe J held that the provisions of the Listening and Surveillance Devices Act 1972(SA) applied. Her Honour held that the husband’s telephone combined with its answering machine was a listening device for the purposes of the South Australian legislation. Her Honour held that only excerpts of parts of the conversations in the first two categories was sought to be adduced and her Honour held that those excerpts contained information of a limited probative value in consequence of which her Honour refused to admit that evidence. Her Honour took a different view about the recorded conversations when the wife’s handset had not been properly hung up. Dawe J held that the information recorded in that conversation was in fact probative, that it went to issues germane to the best interests of the children, that it was derived in breach of the Listening and Surveillance Devices Act 1972 yet the receipt of the evidence was authorised under s 138 of the Evidence Act because the probative weight “tilted the scales to the desirability of admitting the evidence when weighted against the undesirability of admitting the evidence when considering the unlawful method of recording it”.
[4] [2006] FamCA 45
Issues relating to the admission of recordings of conversations obtained in contravention of s 5 of the New South Wales Listening Devices Act came before Le Poer Trench J in Latham & Latham.[5] There, his Honour was concerned with a concession by the husband that the relevant recordings were recordings of “private conversations” (as defined) and were therefore prima facie contraventions of s 5 of the Listening Devices Act. Le Poer Trench J was concerned with the issue whether the recordings were “reasonably necessary for the protection of the lawful interests of that principal party”, it having been contended that the husband was a principal party to the relevant conversations. In reliance upon the decision of the Court of Criminal Appeal of the Supreme Court of New South Wales in Sepulveda v R,[6] Le Poer Trench J held that the husband’s contentions were correct in which the husband said the recording was reasonably necessary to protect his lawful interests. The lawful interests included the likelihood that the wife would deny conversations between herself and the children and the husband’s need to protect himself from the risk of an accusation that he had fabricated conversations mentioned in affidavits between the mother and the children.
[5] [2008] FamCA 877
[6](2006) 167 A Crim R 108
In that case, Le Poer Trench J held that the impugned recordings were admissible. His Honour accepted the submissions of the husband, especially those in relation to the decision in Sepulveda v R, for the receipt of the evidence on the basis that it was reasonably necessary to protect his lawful interests and those submissions that the proceeding involved best interests of the children considerations so that “all available and relevant evidence should be placed before the court”. His Honour rejected the wife’s submission that the proposed evidence was unfairly prejudicial and misleading.
A brazen litigant’s attempt to adduce evidence of a tape-recorded conversation with a family consultant was quickly dispatched by Watts J in Hazan v Elias.[7] There, no issue of telephonic interception arose. The issue was whether the recording, made by the father without the consent of the family consultant, could be admitted into evidence. Watts J held that the recording could not be admitted into evidence. His Honour held that s 11C of the Family Law Act did not allow the recording to be admitted and in any event, the section was expressed to be subject to any other provision of the Family Law Act or any other Act, most notably ss 69ZU, 69ZT and 62G. His Honour also held that the father's secret recording contravened rule 1.19 of the Family Law Rules. His Honour further held that s 138 of the Evidence Act did not permit the evidence to be received because that section required a balance to be struck between the right of a person to bring material before the court as against the dangers of allowing people to engage in improper or illegal activities in obtaining material.
[7] (2011) 45 Fam LR 475
The decision of O’Reilly J in Kawada & Kawada[8] concerned the wife’s recording of skype conversations. In that decision her Honour held that the Telecommunications Act prevailed over the provisions of the Evidence Act. Her Honour referred to a text book that stated that some hierarchy of Commonwealth laws existed. Her Honour supported her view with observations from several decisions of the High Court of Australia including CIC Insurance Ltd v Bankstown Football Club Ltd,[9] Miller v Miller, Bunning v Cross,[10] and Project Blue Sky Inc v Australian Broadcasting Authority (“Project Blue Sky”).[11]
[8] [2011] FamCA 659
[9] (1997) 187 CLR 384
[10] (1978) 141 CLR 54
[11] (1998) 194 CLR 355
With the greatest respect, I do not agree that some hierarchy exists in the legislative provisions to which her Honour referred. The point is not resolved by a determination of some hierarchy of the importance of legislative provisions. The point is determined as a matter of statutory construction.
Ultimately, it is the primacy of the words used in the legislation itself that determines the proper construction of the legislation. Since the decision of the High Court of Australia in Project Blue Sky, Australian law has held that the primary object of statutory construction is to construe the relevant provisions so that it is consistent with the language and purpose of all of the provisions of the statute.[12] That much is consistent with the observations of Barwick CJ in Taylor v Public Service Board (NSW).[13] According to Lord Scarman’s speech in the House of Lords in Southwest Water Authority v Rumble’s[14] as well as the observations of Wilson and Mason JJ in Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation,[15] the meaning of a particular legislative provision must be determined by reference to the language of the instrument viewed as a whole. The context, the general purpose and policy of the provision of a piece of legislation as well as its consistency and fairness are surer guides to meaning than is the topic with which the legislation is constructed.[16] As was held in Toronto Suburban Railway Co v Toronto Corporation,[17] Minister for Lands (NSW) v Jeremias[18] and K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd,[19] the process of construction must always begin with an examination of the context of the provision that is being construed.
[12] Ibid at [69]
[13] (1976) 137 CLR 208
[14] [1985] AC 609
[15] (1981) 147 CLR 297
[16] (1998) 194 CLR 355 at [69]
[17] [1915] AC 590,597
[18] (1917) 23 CLR 322
[19] (1985) 157 CLR 309
High Court authority of very long standing has prescribed that a court construing a statutory provision must strive to give meaning to every word of the relevant provision. So much was held in TheCommonwealth v Baume[20] as well as in Chu Kheng Lim v Minister for Immigration.[21] No sentence, clause or word is superfluous, void or insignificant if by any other construction they may all be made useful and pertinent.[22]
[20] (1905) 2 CLR 405, 414 and 419
[21] (1992) 176 CLR 1, 12
[22]R v Berchet (1794) 89 ER 480
In Project Blue Sky the majority pointed out that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended those words to have.[23] Ordinarily, that meaning will correspond with the grammatical meaning of the relevant provision.
[23] (1998) 194 CLR 355 (at [78])
More recently, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[24] the majority (Hayne, Heydon, Crennan and Kiefel JJ) held that the task of statutory construction must begin with a consideration of the text itself and that historical considerations and extrinsic material cannot be relied upon to displace the clear meaning of the text.[25] Other decisions of the High Court reflect similar reasoning such as Yanner v Eaton,[26] Yarmirr v Northern Territory,[27] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue,[28] Stevens v Kabushiki Kaisha Sony Computer Entertainment,[29] Carr v Western Australia,[30] Director of Public Prosecutions for Victoria v Le[31] and Northern Territory v Collins.[32]
[24] (2009) 239 CLR 27
[25] (2009) 239 CLR 27 at [47]
[26] (1999) 201 CLR 351, 366 (at [17])
[27] (2001) 208 CLR 1, 38–39 (at [13]–[14])
[28] (2001) 207 CLR 72
[29] (2005) 224 CLR 193
[30] (2007) 232 CLR 138
[31] (2007) 232 CLR 562
[32] (2008) 235 CLR 619
In many respects, modern Australian jurisprudence on the subject of statutory interpretation has placed former High Court Justice, the Honourable Justice Kenneth M Hayne at the vanguard. His extra-judicial writing on point is illuminating.[33]
[33] The Honourable Justice Kenneth Hayne AC, Statutes, Intentions and Courts: What Place Does The Notion of Intention (Legislative or Parliamentary) Have in Statutory Construction? (2014) 13(2) Oxford Commonwealth Law Journal, 271
In my view, s 138 of the Evidence Act was pivotal to the determination of whether to receive the transcriptions of the recorded conversations. To some extent that was informed by certain decisions in this court.
The decision of Foster J in Huffman & Gorman[34] involved an application by the mother to restrain the father from providing to the single expert in the case (a child and family psychiatrist) a USB thumb drive and transcripts of the thumb drives depicting photographs of the father and his clothing following alleged incidents of conflict and violence with the mother. The photographs were taken without the knowledge of the mother. They were taken using a camera on a mobile telephone.
[34] [2014] FamCA 150
Foster J held that it was not appropriate for the father to provide the impugned material to the single expert when its admissibility was yet to be determined.
Benjamin J excluded evidence of a voice recording between a father and his child’s maternal grandmother and maternal great grandmother in Farmer & Killen (No 2).[35] His Honour’s reasons were given ex tempore and mentioned the provisions of Tasmania’s Listening Devices Act 1991 as well as s 138 of the Commonwealth Evidence Act. His Honour’s consideration of the issues was brief. However, it was readily apparent that his Honour took the view that the recordings related to events over 20 years old and would have had little impact on the case. His Honour refused to allow the recordings into evidence.
[35] [2015] FamCA 809
Moshinsky J set out the two stage process involved in an assessment of s 138(1) in Director of Consumer Affairs Victoria v Good Guys Discount Warehouses (Australia) Pty Ltd and Another.[36] There he described the task of the court as follows –
Section 138(1) imposes on the court a two-staged task. At the first stage, the court is to determine whether the evidence was obtained in one of the ways identified in paragraphs (a) or (b) of the subsection. If the court concludes that the evidence was so obtained, then the court is not to admit the evidence “unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained”. See Parker v Comptroller-General of Customs;[37] Employment Advocate v Williamson.[38]
[36] (2016) 245 FCR 529
[37] (2009) 252 ALR 619 (Parker) at [28] per French CJ
[38] (2001) 111 FCR 20 at [78] per Branson J, Kenny J substantially agreeing at [108]
In weighing the desirability of admitting the evidence against the conduct in obtaining that evidence, his Honour identified the need to consider the non-exhaustive factors identified in s 138(3) and any additional relevant matters. In that case his Honour was not burdened with that task having found that the secret recordings obtained by Consumer Affairs Victoria inspectors posing as customers at several retail stores of the “The Good Guys” were not obtained improperly. Nevertheless his Honour made several observations on the point.
In Australian Competition and Consumer Commission v Apple Pty Ltd (No 3)[39] Lee J made observations about the apparent evidential similarities with the decision of Moshinsky J involving the Good Guys and consequently adopted Moshinsky J’s analysis of s 138 and applicable case law. In that decision, Lee J concluded that admissions made to ACCC officers during calls to various retail stores were obtained improperly on both a reading of s 138(2)(b) and s 138 generally. His Honour examined factors under s 138(3) in making a finding on the second stage, namely whether the desirability of admitting the evidence outweighed the undesirability of admitting the evidence. Ultimately his Honour ruled that the evidence should not be excluded, attributing considerable weight to factors under subsections (d) and (e) regarding gravity, deliberateness and recklessness.
[39] [2018] FCA 617
His Honour considered the relevance of public policy as a factor for the purposes of s 138. His Honour made the following observations regarding its application –
I would have thought that the weight to be given to public policy favouring the exclusion of the evidence (including the public interest in maintaining standards of propriety by those entrusted with statutory powers) will necessarily vary depending upon the context, including whether one is considering criminal law enforcement or the activity of civil regulators. It seems to me that this context will not only be relevant at the second stage which has, as its point of departure, evidence obtained improperly or in contravention of an Australian law, but also in the anterior, first stage evaluative assessment of what is, in fact, improper in all the circumstances.
His Honour addressed the balancing act required by the court. His Honour held –
In the circumstances of this proceeding, the discretion gives content to the Court’s role in resolving a fundamental tension, being the balancing of, on the one hand, the public interest in admitting reliable evidence and thereby allowing a regulator to enforce the law, and on the other hand, the public interest in deterring improper conduct by a regulator seeking to enforce the law.
The weight attributed to matters deemed to be in the public’s interest was pivotal in the decision of the Court of Appeal of the Supreme Court of Victoria in Director of Public Prosecutions v Marijancevic.[40] There the Court agreed with the trial judge’s decision to exercise the discretion reposed by s 138 to exclude evidence obtained by the police through irregular processes. The court held that the discretion called for a careful consideration of two competing public policy positions in the context of criminal law and an assessment of the weight to be attributed to each. That authority may be of limited value in this jurisdiction, however.
[40] (2011) A Crim R 344
The last authority in my survey of this area is the decision of McClelland DCJ in Janssen & Janssen[41] in which his Honour admitted into evidence voice recordings and transcriptions of those voice recordings. The mother sought to rely on the recordings and transcriptions. His Honour held that the recordings fell within the exceptions to the prohibition against recording private conversations without the consent of the parties to those conversations. His Honour further held that if his Honour was wrong in the conclusion reached about the recordings falling within the exception set out in s 7(3)(b)(i) of the New South Wales Surveillance Devices Act, his Honour would have exercised his discretion to admit the evidence under s 138 of the Evidence Act.
[41] [2016] FamCA 345
Returning to the submissions of Ms Stoikovska SC in this case, she contended (correctly in my view) that the provisions of the Surveillance Devices Act 1999(Vic) applied and that no interception of a telecommunication was involved. She also contended, again correctly, that recordings taken on a mobile telephone attracted the operation of s 3 and s 6 of that Act.
Section 11(1) of the Surveillance Devices Act imposes a two year term of imprisonment for a contravention of its terms. It provides as follows –
(1)Subject to subsection (2), a person must not knowingly communicate or publish a record or report of a private conversation or private activity that has been made as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device.
Penalty: In the case of a natural person, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both;
In the case of a body corporate, 1200 penalty units.
Section 11(2) of that Act rendered the operation of s 11(1) of the Act inapplicable in certain circumstances. Presently relevant are subsections 11(2)(a) and (b). They are in the following terms –
(2) Subsection (1) does not apply –
(a)to a communication or publication made with the express or implied consent of each party to the private conversation or private activity; or
(b)to a communication or publication that is no more than is reasonably necessary –
(i) in the public interest; or
(ii)for the protection of the lawful interests of the person making it.
The phrase “private conversation” when used in s 11 bears the definition given in s 3. It is as follows –
“private conversation” means a conversation carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be heard only by themselves, but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it may be overheard by someone else.
The term “device” when used in s 11 bears the definition given in s 3. It is an inclusive definition, in the following terms –
“device” includes instrument, apparatus and equipment.
The phrase “private conversation” was the subject of judicial interpretation by Doyle CJ of the Supreme Court of South Australia in Thomas v Nash[42] where, at [37], the Chief Justice held as follows –
A conversation can be private even though the participants are at liberty to tell others about it later. In the Act, “private” is used not in the sense of “secret” or “confidential”, but in the sense of “not public”. A telephone conversation with a friend is a private conversation, even though the friend is at liberty later to tell another about it. On the other hand, a telephone conversation on talkback radio is not a private conversation.
[42] (2010) 107 SASR 309
The phrase in s 11(2)(b)(ii) “for the protection of the lawful interests of the person making it” (“it” meaning the record of the private conversation) was also canvassed in Thomas v Nash. Doyle CJ referred to the fact that each decision on the exclusion conferred by s 11(2)(b)(ii) or its equivalent across Australian statutes involved fact-specific application. At paragraph 48 of the decision in Thomas v Nash, Doyle CJ held as follows –
Each decision is an application of the expression to its particular facts. In most of those decisions it was accepted that a mere desire to have a reliable record of a conversation is not enough. I agree. Most of the decisions proceed on the basis that a desire to gain an advantage in civil proceedings would not ordinarily amount to a relevant lawful interest, although of course each case has to be considered on its facts. Several of the cases proceed on the basis that where the conversation relates to a serious crime, or an allegation of a serious crime, or to resisting such an allegation, a court is more likely to find that the recording of a conversation relating to the crime can be made in the protection of the person’s “lawful interests”.
It must be said that Doyle CJ’s consideration was not in the context of a family law matter. Instead, it had a strong focus upon a criminal proceeding. Other cases surveyed above speak of the lawful interests of a person in a family law matter. The decision in Latham & Latham is an illustration. Ms Stoikovska contended that in this case the communication of the recording of a private conversation is no more than is reasonably necessary for the protection of the lawful interests of the person making the communication, in this case, the father. She argued that the father’s lawful interest lay in his advancement of the best interests of his child and that in a parenting case of which this is a classic exemplar, s 60CA renders the child’s best interest a paramount consideration.
There is force in those submissions. That rendered the exemption in s 11(2)(b)(ii) applicable with the consequence that no contravention of s 11(1) was engaged in by the making of the recordings as transcribed.
But if it might be held hereafter that according to s 11(2)(b)(ii) the recordings were illegal, it next became necessary to consider whether s 138 of the Evidence Act was applicable and if it was, whether in the exercise of my discretion I should admit the recordings and transcripts of those recordings on the ground that the probative value of the evidence outweighed the prejudice of receiving the evidence.
In my view, the probative value of receiving the evidence outweighed the prejudice associated with its receipt. The recordings related to several important questions of fact that were involved in the determination of parenting issues, quintessentially important under s 60CA of the Family Law Act. Having the transcripts of the recordings in evidence enabled me to have a fuller picture of the totality of the evidence so as to better enable me to adjudicate on the threshold question, namely, the best interests of the child.
The transcripts and the audio recordings to which they applied related to 13 discrete incidents. They were on the following dates –
a)11 May 2018;
b)7 August 2018;
c)21 August 2018;
d)4 September 2018;
e)18 September 2018;
f)25 September 2018;
g)2 October 2018;
h)30 October 2018;
i)12 December 2018;
j)19 December 2018;
k)1 January 2019
l)5 February 2019; and
m)while out of chronological context, the 20 August 2018 snow sports event.
The father sought to rely on the transcripts for several reasons, not only as part of his own case but also by way of rebuttal of the mother’s allegations. Ms Stoikovska SC cross-examined the mother at length and with considerable intensity (but never in any unfair way) about the words that were recorded as having been said by her as recorded in the transcriptions of those 13 recordings. In some instances the mother answered in a manner that conveyed her disagreement with the translation attributed to her. In other instances the mother answered in a manner indicating that she took the view that the context of her answer was incorrectly conveyed because, so she said, the totality of the words spoken by her were not exhaustively recorded in the relevant transcript. In the majority of answers given by the mother, she agreed that the words recorded as having been spoken by her were accurately recorded.
In the result I allowed the transcription of that evidence.
The mother was thereafter cross-examined by Ms Stoikovska SC at length and with considerable force. As mentioned above, on many occasions the mother answered questions put to her in cross-examination by stating that the transcription was not accurate. Before me on 21 October 2019 Ms Stoikovska argued that on one occasion during the trial the mother had been invited overnight during the course of her cross-examination to carefully compare the transcription against the sound file from which it was taken. On returning to the witness box the following day the mother either did not engage in a word-by-word analysis of the transcription or she accepted more generally that in the overall the transcription was accurate. Ms Stoikovska contended that it was a curious position for the mother to now adopt in challenging the accuracy of the transcription through the witness Mr E when the mother had answered questions put to her premised on the accuracy of the transcription during the trial. Ms Stoikovska argued that the mother should not be permitted to adopt such an inconsistent approach.
Before addressing the manner in which Mr Dixon SC developed his submissions it is necessary to turn to the affidavit of Mr E made 11 September 2019. The affidavit was prepared by the instructing solicitors for the wife. That in itself was a peculiarity in this case because Mr E was the same person who prepared the transcription about which the wife was cross-examined at length. In other words, Mr E was, on 21 October 2019 a witness in the camp of the wife whereas during the first portion of the trial Mr E had given evidence on which the husband wished to rely and whose evidence Mr Dixon SC for the wife trenchantly opposed. Be that as it may, Mr E’s affidavit made 11 September 2019 was filed by and relied on by the wife.
Mr E gave his profession as that of a professional interpreter and translator for the Chinese languages including Mandarin to English and in reverse. He said he had been accredited by NAATI (National Accreditation Authority for Translators and Interpreters). In his 11 paragraph affidavit, he deposed to the following –
a)Mr E was approached by Mr Gin (the father in this litigation) to translate various recordings Mr Gin had made;
b)pursuant to the engagement by Mr Gin of Mr E, Mr Gin supplied Mr E with the relevant recordings in a drop box and Mr Gin also provided a partially typed translation of what Mr Gin said had been recorded;
c)Mr E said Mr Gin requested Mr E to check the existing translation against the recording then to certify that the partially typed translation was correct;
d)Mr E said Mr Gin first approached Mr E on 3 May 2019 and on that date Mr E told Mr Gin the task of translating the 13 files would take some time at the rate of 40 cents per word;
e)Mr E said he provided Mr Gin with the translation of the first portion and indicated that the task was taking Mr E much longer than first anticipated;
f)Mr E said Mr Gin became impatient telling Mr E not to use Mr E’s usual high standards because time did not permit and that instead, Mr Gin wanted Mr E to stop listening to the recordings but rather to read only through the transcribed pages so as to edit or amend any of the conversations compared to the Chinese characters that appeared alongside them;
g)Mr E deposed that he told Mr Gin that he (Mr E) was not prepared to sign off translations as being accurate without listening to the recordings of the words actually spoken and that Mr Gin had not given Mr E adequate time to listen to all the recordings;
h)Mr E deposed that Mr Gin told Mr E that Mr E was to complete the task of translating and that someone else would certify the translation;
i)Mr E exhibited a screenshot of his communications to that effect with Mr Gin;
j)Mr E deposed to complying with Mr Gin’s request but adding a note to the effect that the translator had only proof-read the translation based on the transcript provided and all contextual information, choice of text and the translation was given by the client, Mr Gin;
k)Mr E exhibited the work he did in respect of the first of the 13 sound files;
l)Mr E deposed that he provided a fee for the work he did of $1,310 of which Mr Gin complained so Mr E agreed to accept half of that fee;
m)Mr E said Mr Gin paid only $250 of the agreed half-fee and that Mr Gin had not paid the balance; and
n)Mr E’s retainer was terminated by Mr Gin.
The translation work undertaken by Mr E was exhibited to Mr E’s affidavit. It consisted of 44 typed pages, each of which was arranged in tabular form consisting of four columns. The extreme left column was headed “speaker”. To the right the next column was headed “translated English text”. The column next moving to the right was headed “transcripted text” and the word “Chinese” was struck through. The extreme right column appearing only on the first page was six boxes recording track changes. Three footnotes appeared at the foot of the first page beneath the table, all underlined, yet the footnote bearing the number two had been struck through. In the body of the three columns of the table on the first page (that is to say, ignoring the column that recorded the track changes) certain English words had been struck through as well as certain Chinese characters. Yet words remained in the body of the English translation that during the trial were deleted for being impermissible commentary rather than strict translations. For example, in the document Mr E exhibited commentary such as “no one is crying” appeared as did the commentary “squealing voice”, as well as “sob”. Similarly, on the second page of the document exhibited by Mr E certain Chinese characters had been struck through and commentary seemed to have been added (presumably by Mr E) with the words of commentary “baby’s crying in the background”. On the third page a footnote appears stating “waipo means maternal grandmother”.
Doing the best I could to comprehend the evidentiary significance of the document exhibited by Mr E of translations, a few propositions emerged. They may be shortly stated as these –
a)Mr E translated the Chinese characters that had been provided to him into English;
b)in places he deleted certain Chinese characters for reasons not given;
c)he did not listen to the sound file in order to create the 44 typed pages;
d)he annotated portions of the typed version adding track changes in limited instances; and
e)he added words that went beyond translation such as a reference to a baby crying, a reference to sobbing or an interpretation of what words mean, additions that went beyond the purist task of translating from one language to the next.
Yet at its core, once Mr Gin instructed Mr E that the task of listening to the sound file in order to translate was an activity that was too time consuming, it became readily apparent that Mr E’s contribution was little more than checking the accuracy (and if inaccurate, correcting) the translation of the Chinese characters to English. That meant that the starting position remained unverified, namely, whether the Chinese characters had been faithfully and accurately recorded on paper from the sound recording. The veracity of the English translation depended on the accuracy of the starting activity, namely, how faithful was the written record of the Chinese characters. Mr E’s work in checking the words recorded in English seemed to have been a secondary consideration. Moreover, Mr E did not get beyond undertaking his limited checking exercise for the first only of 13 sound files.
At least 12 of the 13 sound files may have been suspect in that no verification had been made of the correspondence between the sound file and the Chinese characters nor had any verification been given about whether the words expressed in the English language faithfully corresponded to the Chinese characters. Ms Stoikovska submitted that the mother had given her assent to the translations. For something as important as a parenting case I do not consider that it is correct to draw the conclusion that the mother’s adoption of the translation of all 13 sound files necessarily meant that the purported translations of those sound files were accurate. To the contrary, I entertain real doubts that the document on which I ruled admitting into evidence purported transcriptions of the 13 sound files was accurate. With the benefit of Mr E’s affidavit, especially the details of the activity he actually performed between the time of his first being retained and its termination, I am now persuaded that it cannot be said that the starting point to establish the accuracy of the transcription has ever been completed. That can only be done by an independent person fluent in both languages who listens to the 13 sound recordings and faithfully translates every word thereof.
A second affidavit was the subject of this application, namely, the affidavit of Mr D made 15 October 2019. Mr D had given evidence in the first phase of the trial of this proceeding. His affidavit evidence related to an incident on the second day of the trial, namely on 27 August 2019. On that day he deposed to speaking with a person who was an interpreter. After exchanging pleasantries, Mr D deposed to the person to whom he was speaking (a university lecturer whose name was Mr H) telling Mr D that he, Mr H, was aware from translator circles that this litigation had been the subject of discussion and that Mr E had been involved in translation activities in this case. Mr D deposed to contacting Mr E and discussing the engagement between Mr Gin and Mr E. Mr D did not give details of his discussions with Mr E in relation to Mr E’s retainer with Mr Gin. Nevertheless Mr D deposed to the following in paragraph 7 of his affidavit –
I subsequently contacted Mr E and discussed his engagement by Mr Gin to translate some recordings for him. This had caused Mr E grave concerns given the request made of him by Mr Gin as to how he was to carry out his translation task, which was not in accordance with his professional obligations as a translator.
Mr D did not depose to the way Mr Gin’s instructions to Mr E was such that Mr E was being requested to not comply with his professional obligations. Mr D had not at any stage in this litigation deposed to his being aware, or for that matter qualified, to speak about the professional obligations of a translator. To that extent paragraph 7 of Mr D’s affidavit failed to meet the criteria prescribed for such evidence by the High Court in Dasreef Pty Ltd v Hawchar[43] or Makita (Australia) Pty Ltd v Sprowles.[44]
[43] (2011) 243 CLR 588
[44] (2001) 52 NSWLR 705
In developing his submissions supporting his client’s application for the receipt of the two affidavits, Mr Dixon SC relied on a collection of propositions. Relevantly distilled they were as follows –
a)until recently the wife’s legal team was unaware of the method deployed by Mr Gin to obtain the translation of the 13 sound files on which the mother had been extensively cross-examined;
b)the transcript on which the mother had been cross-examined contained many references to significant gaps in the translation of the sound files, in some instances up to four minutes, and no explanation had been given to date about the reason for those gaps and more importantly, on whose instructions a decision had been made to not translate four minutes of audio recording;
c)the information to which Mr E deposed raised a strong inference that Mr Gin decided what was translated and what was not;
d)the affidavit of Mr E demonstrated how the translation on which the mother has been extensively cross-examined came into existence and provided context for the inaccuracies in its content about which Mr Dixon complained when opposing its receipt into evidence on the first day of the trial; and
e)it may transpire that the only safe way of ensuring that an accurate and objective transcribed version of the audio recordings is obtained is from instructing a neutral accredited translator to begin the task afresh, even though the mother has already been cross-examined, albeit on an imperfect transcript.
Ms Stoikovska raised an array of grounds in opposition to this application to rely on the affidavit of Mr D and the affidavit of Mr E. Distilled, they amounted to the following –
a)at no stage did the mother deny the substance of the proposition put to her in cross-examination when she adopted the transcript that was allowed into evidence on the first day of the trial;
b)consequently, at no stage did Ms Hing challenge the evidence put to her;
c)the translator Mr F who exhibited the transcriptions of the 13 sound files that were the subject of detailed cross-examination of the mother gave evidence that he had listened to the audio files and he certified that the transcripts of those sound files were accurate records of the sound files;
d)Mr F also certified in his affidavit to which he exhibited the transcriptions of the 13 sound files that Mr Gin provided to him the context of which speaker was speaking, to whom and where gaps emerged in the recordings, that Mr F certified that such omissions were made to save time and cost and that they did not affect or misrepresent the rest of the transcribed content;
e)Mr F will be amenable to cross-examination by Mr Dixon SC;
f)the only person capable in this case of making an allegation of error in relation to the transcription of the conversations or one or other of them is the participant in the conversation, relevantly here Ms Hing, and prior to her entering the witness box no assertion was made about the transcriptions being otherwise than faithful;
g)pursuant to s 103 of the Evidence Act, only Mr Gin or Mr E or both could be challenged about credit concerning the creation of the transcriptions and neither had given evidence so any attempt to do so was to put the cart before the horse;
h)this was a back-door assault on credibility;
i)so far as Mr D’s evidence was concerned, in reality it was tendency evidence for which the requisite notice had not been given for the purposes of s 97 of the Evidence Act;
j)if the affidavit evidence of Mr E and Mr D were to be allowed, the trial would need to commence afresh;
k)no explanation, or no adequate explanation had been given why the affidavit of Mr E had not been produced earlier than it was and that the affidavit had been in the possession of the solicitors for the wife since its affirmation; and
l)the affidavit of Mr D was hearsay upon hearsay.
Mr Whitchurch on behalf of the ICL submitted that the uppermost consideration arising out of Mr E’s most recent affidavit and exhibit was that a wholesale lack of certainty now pervaded the contents of the transcriptions in this case. Mr Whitchurch contended – correctly, in my view – that debate about admissibility of yet another version of the transcript would not cure that uncertainty. Mr Whitchurch argued that the existing debate about whether the transcript correctly recorded “dad” as a reference to Mr Gin or “Davie” in reference to Mr D (possibly a mistaken interpretation of “daddy”) was not definitively resolved by Mr E’s new transcript. Mr Whitchurch argued that by allowing Mr E’s most recent transcriptions, some useful material may assist in the resolution of what Mr Whitchurch described as a crucial issue.
Mr Whitchurch argued that a faithful and accurate transcript was needed in this case and one was not presently available. I told Mr Whitchurch and, for that matter, all counsel that in my view the best evidence about the transcriptions was not before me. That led to the following –
HIS HONOUR: Well, okay. Well, let’s just pause on that. We’ve gone five days so far. We’re staring down the barrel at another five days. Ms Stoikovska would, no doubt, protest bitterly if that were the upshot because she has spent a lot of time and obtained information that, no doubt, she will say is helpful for her case, given the answers that have been given. Or, worse, she’s flagged the direction of her questioning and tipped off the witness, so to speak, so the witness would be forearmed as to how to better respond to a better expressed question or a differently expressed question, and I’m sure she would launch a huer cry by going down that path, but, at the moment, I don’t have the best evidence in front of me.
That’s the bottom line, and can that be cured? Hard to know. Can it be cured on the sixth day of a trial? Not without some very serious consequences and costs, and likely torpedoing of the duration of the trial. So these are really thorny points that bear upon the smooth running of this case, but, most importantly, the overall fairness.
…
MR WHITCHURCH: What I would say, your Honour, it’s relevant evidence and it ought to be accepted. It ought to be admitted and the parties can do what they want with it. The overarching consideration is the welfare of the child and considerations regarding what was said between the child and the mother and the father, and the context of these conversations are important, and a lot of time has been spent on them, and obviously some latitude could be given to the father’s counsel to deal with this in, perhaps, re-examining – re-cross-examining, I should say, the applicant.
That amounted to the contention that the material in the transcription exhibited by Mr E to his most recent affidavit should be admitted and, to the extent that the father’s forensic position was compromised in any way, that Ms Stoikovska should have another opportunity to cross-examine on that new material.
In reply submissions Mr Dixon SC contended that the issue under consideration by the admission of Mr E’s most recent transcription went beyond merely credit. He said the following –
MR DIXON: This goes to far more than just credit. It goes to the accuracy, it goes to the independence and it goes to whether or not your Honour can have any confidence that the annexures to Mr F’s affidavit are true and accurate and truly reflect what he listened to, and whether or not he did listen to the tapes, compared them with the translation, and then translated those. And I say that – and this is just a snapshot of what would be.
…
One of the questions that will be put to the interpreter or to the translator is, who decided not to put that in? Why was it not relevant? Was it not put in because that was the direction that was given to him, as a similar direction was given to Mr Gin? All these matters are important to your Honour as to whether or not you can have satisfaction that what is alleged to be an accurate translation is just that, or is it the situation that Mr F, similar to Mr E, merely checked what was given to him by Mr Gin and translated from that. Because there are numerous occasions where Mr F puts in “door closed”, “[R] goes to bedroom”. How on earth is he meant to put that in if he did listen to a tape? Or is it that’s what the direction was from Mr Gin? So, your Honour
HIS HONOUR: Just one second. “Door closed” is not a translation of anything and “[R] goes to bed” could not be distilled from listening to the tape.
…
MR DIXON: How can a translator listening to a tape know that? And that’s just part of the flavour of why we will be submitting to your Honour that this entire translation is something that is not a true translation and is a document that your Honour could not rely on. And to expect my client, after four days of cross-examination in relation to 13 conversations which took place back in August of last year, to say, “Well, that line is correct, that line is not correct”, in my submission is beyond the pale. So we say it goes to far more than credit, your Honour, and your Honour ought to give leave for these particular affidavits to be filed. Please your Honour.
In the final moments of addresses on 21 October 2019 Ms Stoikovska very helpfully offered a solution. She said that an independent and neutral interstate translator nominated by the ICL should translate afresh all 13 sound files, initially at the expense of the father, such costs to be adjusted at trial.
Ms Stoikovska said that such a proposal would prevent “the complete derailment of this trial” (her words) thereby obviating the need for the two affidavits to be admitted into evidence. Mr Whitchurch on behalf of the ICL supported that proposal. Mr Dixon resisted any suggestion that his client should be responsible for costs of that activity. Mr Dixon persevered in his submission that the recordings should not be admitted at all.
Consideration
Self-evidently the transcription exhibited to the affidavit of Mr F on which the mother was challenged at length is defective. Despite the certification as to its accuracy, which certification I reject, it is inaccurate, incomplete and it goes beyond what should happen in a purist transcription from the sound recordings because it includes commentary and elements beyond the simple translation and transcription of the spoken word. It has yet to be revealed on whose instruction significant portions of the recordings were not transcribed. The existing transcriptions initially incorrectly recorded the word “daddy” in several instances. The mother took issue on many occasions with the words attributed to her. The mother was cross-examined in exquisite detail about the words that were allegedly said by her. In some instances she debated the correctness of words attributed to her. It now emerges that in the creation of the first transcription of 13 sound files later certified by Mr F for their correctness, complete independence and fidelity in translating the spoken word into the English language may not have been observed. It also has emerged (and not having yet heard the evidence of Mr Gin I am unable to say with precision) that Mr Gin may – repeat, may – have intervened in the transcription process by directing parts of the sound file to not be translated.
Knowing the circumstances in which the existing transcription came into existence will be relevant in any determination of the accuracy of the content of any one or more of the 13 transcriptions. Yet even if that evidence is elicited, it will not cure the defects from which the existing transcriptions suffer. They are not accurate.
The mother has been cross-examined at length on the understandable supposition that the transcripts were accurate when in truth they were not. Precisely how the transcripts came to contain significant omissions cannot be reliably stated just now. After cross-examination of all witnesses, that is likely to change.
Mr Dixon will undoubtedly cross-examine Mr Gin about all aspects of Mr Gin’s involvement in the creation and editing of all versions of the transcripts of all 13 sound files. So long as any such cross-examination is relevant, Mr Dixon’s cross-examination should not be curtailed.
Yet whatever forensic advantage Mr Dixon seeks to develop by questioning Mr Gin about the circumstances of the creation of the transcripts and their contents, three matters remain.
First, the transcripts in their current form are defective. Better evidence is needed in relation to them. The recordings are highly probative, in my view, and bear directly on parenting issues. Accuracy and precision issues aside, in my view the transcripts address highly pertinent issues in this case. The best evidence of the sound files is not presently before me. It should be. The proposal volunteered by Ms Stoikovska is a very sensible proposal and, in the absence of agreement, is one I am proposing to order.
The second issue relates to the use that can now be made of Ms Hing’s evidence given thus far premised on the contents of an inaccurate transcription of the 13 sound files. Not having heard submissions about that, I will not rule on the issue at this time but will entertain submissions at the appropriate time.
The third issue relates to future cross-examination of Ms Hing once the new version of the transcript is produced and circulated. Naturally, fairness requires that all parties examine the new transcript and be permitted to consider whether and if so to what extent any further cross-examination about it may be required.
Mr Dixon proposed a form of orders in relation to this ruling pursuant to which a directions hearing be convened once a determination of the admissibility of the affidavits of Messrs D and E had been made. Mr Whitchurch supported the appointment of an independent interpreter from interstate, reserving costs of the appearance on 21 October and proposing other orders.
It seemed to me that a combination of all proposals was warranted.
Taking first the application for the wife to have leave to rely on the affidavits of Mr D and Mr E, I grant her leave to rely on Mr E’s affidavit. In my view, the contents of that affidavit will remain relevant even if a new transcription of all 13 sound files is made. There is merit in Ms Stoikovska’s contention that the E affidavit goes to Mr Gin’s credit as it may go to explain the circumstances of the creation of the transcriptions exhibited by Mr F and Mr Gin’s involvement in that process. If it is established in later cross-examination of Mr Gin that he had a direct and detailed involvement in determining the content of the transcriptions exhibited by Mr F and which have been shown to be inaccurate, submissions can be advanced in due course about Mr Gin’s overall veracity in this case. I say no more on the subject at this stage.
It is next necessary to address Ms Stoikovska’s submissions about the E affidavit being relevant to credit only and that Mr Gin has not yet given evidence so no basis to impugn his credibility has yet been advanced. Mr Gin certainly has not yet given evidence. However that, of itself, is not a basis for disallowing the receipt of the E affidavit. In any event, Mr E is to be called as part of the wife’s case. By definition, his evidence (if allowed) will precede the evidence of Mr Gin. Mr Gin will be able to provide instructions to Ms Stoikovska to enable her to cross-examine Mr E putting Mr Gin’s version of events concerning the creation of the first transcription. That version will remain relevant as any new version of the transcription is likely to incorporate large portions of the existing transcript.
That is enough to dispose of the main debate of issues raised by Ms Stoikovska and Mr Dixon about –
a)the admission of the E affidavit; and
b)the creation of an entirely new and independently translated transcription.
The affidavit of Mr D is very much on the periphery in relation to utility in this case. Nothing in it assisted me based on the state of the existing evidence. I do not allow its admission.
In those circumstances, I make the following orders –
a)the wife’s oral application made 21 October 2019 seeking leave to file the affidavit of Mr D affirmed 15 October 2019 is dismissed;
b)leave is granted for the filing of the affidavit of Mr E affirmed 11 September 2019;
c)the matter is listed on 11 November 2019 at 9am for a directions hearing in relation to the future conduct of the matter;
d)the husband, at his expense at first instance, engage a Mandarin interpreter to compare the transcripts referred to in paragraph 7 of the affidavit of Mr F affirmed 13 August 2019 with the audio recordings exhibited on behalf of the respondent husband in these proceedings, and identify errors and omissions, if any;
e)for the purposes of paragraph (d) herein, such interpreter is to be chosen by the independent children’s lawyer from those appropriately qualified and residing outside the State of Victoria; and
f)the costs of and associated with the aforementioned comparison and the hearing on 21 October 2019 are reserved.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 29 October 2019.
Associate:
Date: 29 October 2019
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