Groom v Police
[2015] SASC 101
•14 July 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GROOM v POLICE
[2015] SASC 101
Judgment of The Honourable Justice Nicholson
14 July 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - TIME FOR APPEAL AND EXTENSION
Appeal against conviction. The appellant was charged with the offence of breaching a term of an intervention order. On 17 January 2014, the protected person recorded a conversation with the appellant, without the appellant’s knowledge, during a child handover. The appellant was charged subsequent to the protected person providing the audio recording to the police. On the voir dire, the Magistrate determined that, in the circumstances, the audio recording was admissible notwithstanding section 4 of the Listening and Surveillance Devices Act 1972, as the recording of the conversation was in the public interest and for the protection of the lawful interests of the protected person.
On appeal, the appellant contends that the audio recording should not have been admitted into evidence and that, in any event, it did not support his conviction for the offence.
Held:
1. Permission to appeal out of time refused and the appeal dismissed.
2. The audio recording made on 17 January 2014, given the circumstances of this case, was properly admitted into evidence at trial.
3. The Magistrate was correct to find, beyond reasonable doubt, that the appellant contravened a term of the intervention order.
Domestic Violence Act 1994 (SA) s9; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s31; Listening and Surveillance Devices Act 1972 (SA) s3, s4, s5, s7, referred to.
Thomas & Anor v Nash [2010] SASC 153; R v Smith, Turner and Altintas [1994] SASC 4874, (1994) 63 SASR 123, discussed.
Groom v Police [2013] SASC 49; Groom v Police (No 2) [2013] SASC 50; Groom v Police (No 3) [2013] SASC 93; Groom v Police [2014] SASC 41; Martin v The Department of Transport, Energy & Infrastructure [2010] SASC 141; Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531, considered.
GROOM v POLICE
[2015] SASC 101Magistrates Appeal: Criminal
NICHOLSON J.
Introduction
This is an appeal, filed out of time, against a conviction by a Magistrate. The appellant was charged, by complaint and summons dated 16 May 2014, with one count of contravening a term of an intervention order.[1] The alleged contravention was said to have resulted from a conversation between the appellant and his former partner (SB) on 17 January 2014 at Henley Beach during handover of access to their child (H).
[1] Contrary to section 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009.
On 3 December 2014, the appellant entered a plea of not guilty to the charge in the Port Adelaide Magistrates Court. On 18 December 2014, following a two-day trial during which the appellant represented himself, the Magistrate delivered ex tempore reasons finding the appellant guilty. The Magistrate recorded a conviction and imposed a $300 bond to be of good behaviour for a period of six months. The appellant was ordered to pay a Victims of Crime levy and prosecution costs in the amounts of $160 and $100 respectively.
The appellant’s initial notice of appeal, filed on 26 March 2015, was replaced by a second notice, filed on 14 May 2015. The appellant contends that the Magistrate erred by admitting into evidence an audio recording surreptitiously made by SB during the 17 January 2014 handover meeting. The appellant contends that the recording should have been excluded on the basis that it was acquired through the unlawful use of a listening device, contrary to the requirements of the Listening and Surveillance Devices Act 1972. The appellant further contends that had the evidence been excluded, there would have been no basis on which to find the appellant guilty of contravening the intervention order. The appellant seeks orders setting aside the conviction and entering a finding of not guilty.
The notice of appeal was filed two months or so after the period within which such an appeal is to be commenced, as required by rule 281 of the Supreme Court Civil Rules 2006. An extension of time is therefore required. In this case, the question of whether or not permission to appeal out of time should be granted largely will be informed by the merits of the appellant’s argument on appeal; that is, whether the Magistrate’s admission into evidence of the audio recording effected a miscarriage of justice.
Background
It will be convenient to briefly summarise some of the factual and procedural background to this matter. Whilst not directly relevant, this background does provide some context to the issues to be determined.
The appellant was in a relationship with SB for approximately seven years. They have one son together, H. Their relationship deteriorated throughout the latter stages of 2010 and early 2011. In October 2011, SB brought an application for a domestic violence restraining order against the appellant. A Magistrate, by ex parte order on 19 October 2011, issued an interim restraining order pursuant to section 9(2) of the Domestic Violence Act 1994 (SA). SB was specified in the order as the protected person. The interim domestic violence restraining order, which had become an interim intervention order by force of legislation,[2] was subsequently confirmed on 22 February 2012 with the appellant’s consent or, at least, without his opposition.
[2] On 9 December 2011 the Domestic Violence Act 1994 (SA) was repealed and partially replaced by the Intervention Orders (Prevention of Abuse) Act 2009 (SA). Significantly with respect to this matter, clause 37(1) of Schedule 1 of the Act provides that any domestic violence restraining orders that were in force under the former Act remained in force as if they were an intervention order issued under the Intervention Orders (Prevention of Abuse) Act 2009 (SA). It was common ground that the domestic violence restraining order against the appellant was effectively converted to an interim intervention order pursuant to section 21 of the current Act.
On 11 December 2011, the appellant was arrested for allegedly assaulting SB and for allegedly breaching the interim intervention order. He appeared before a Magistrate on 12 December 2011 and was granted bail in relation to those charges. On 23 August 2012, following a trial in the Magistrates Court during which he was legally represented, the appellant was found not guilty of breaching the intervention order but guilty of the assault charge.
On 7 December 2012, the appellant, whilst unrepresented, pleaded guilty in the Magistrates Court to two counts of failing to comply with his bail agreement and a further count of contravening a term of the intervention order. Those charges stemmed from offending alleged to have taken place on 15 and 16 November 2012, again involving SB.
The appellant subsequently filed appeals in this Court in relation to the confirmation of the interim intervention order on 22 February 2012, his assault conviction on 23 August 2012 and the three charges to which he pleaded guilty on 7 December 2012. All of those appeals were heard by Sulan J in March 2013. With respect to the confirmation of the interim intervention order, his Honour allowed the appeal on the basis that the appellant’s consent to the order had been vitiated given the circumstances in which it came about.[3] The matter was remitted to the Magistrates Court for rehearing. With respect to the conviction for assault, his Honour allowed the appeal for the reason that there was information which may have had an impact on the reliability of SB’s testimony and which had not come to the attention of the appellant’s counsel at trial.[4] Again, the matter was remitted for a rehearing. Finally, with respect to the three 7 December 2012 convictions, his Honour allowed the appeal on the basis that the appellant’s guilty pleas had been entered in circumstances giving rise to a miscarriage of justice.[5]
[3] Groom v Police (No 3) [2013] SASC 93 at [46].
[4] Groom v Police [2013] SASC 49 at [9]-[12].
[5] Groom v Police (No 2) [2013] SASC 50.
On 10 December 2013, the appellant returned to the Magistrates Court in relation to two matters. One concerned the confirmation of the interim intervention order, following the setting aside of the previous confirmation by Sulan J. The second related to 31 charges, which included various counts of breach of bail, counts of contravening a condition of the intervention order and the previous domestic violence order, and one count of assault. Those charges included the previous charges that had been remitted for rehearing by Sulan J. The appellant was represented on this occasion by legal counsel. The matter resolved by agreement on the basis that the appellant would consent to the confirmation of the intervention order, with the 31 charges being withdrawn by the police.
The appellant again appealed to this Court against the Magistrate’s confirmation of the intervention order on 10 December 2013. On 21 March 2014, Kelly J dismissed that appeal on the basis that the appellant had provided informed consent to his legal counsel to accept the offer of the police to withdraw the 31 charges against him in consideration of the appellant agreeing to confirmation of the intervention order.[6] Her Honour held that one of the appellant’s grounds of appeal consisted of “attempts to re-litigate the grounds on which the intervention order was made” which were rendered “irrelevant by virtue of the appellant’s informed consent to the confirmation of the intervention order”.[7] The appellant sought permission to appeal from that decision to the Full Court which permission was refused on the basis that the appeal lacked merit.[8]
[6] Groom v Police [2014] SASC 41 at [32]-[35].
[7] Groom v Police [2014] SASC 41 at [28].
[8] Groom v Police [2014] SASCFC 125 at [20]-[21].
The events of 17 January 2014
Following their separation in 2011, the appellant and SB entered into a shared custody arrangement with respect to H. As part of that arrangement, the appellant and SB would meet at designated locations for handovers. The two met at around 5pm on the afternoon of 17 January 2014 in Henley Beach for this purpose. SB attended on that particular occasion with a handheld audio recording device concealed in her pocket. She used that device to record the conversation that took place between herself and the appellant. A transcription of relevant aspects of that conversation is as follows.
The appellant: Three things, I’ve got the variation for the child support money, I’ll put it here, I’ll just put back my, my views on it, it’s up to them what they do, two is I’ve got to put an application in to the family court to get a formalisation of our arrangement and I don’t want to change anything. It’s just I want to formalise it to make sure it’s all done. The third thing is I’ve got an appeal in the supreme court about your...
SB:about the what?
The appellant: about the restraining order, so you know what’s happening all right.
SB:I’ve got a letter about it, I didn’t know what it was though because they had, they just give you a number they don’t give you...
The appellant: Ok well I’ve put in an application on the grounds that they have the right to...withdraw all the charges.
SB:Ok
The appellant: Ok at the end of the day it’s just a block on our friendship or relationship or whatever you like to call it and we don’t need, or I don’t need it so far as I’m concerned I’m going to get rid of it if I can, nothings ever set in stone so but they, they, they have you know at the end the day they have no right to ask for it, because they’re inferring to me that there was a plea bargain situation occurring when if I’d have accepted 2 of those charges it would have been plea bargaining, but because I accepted no charges there was no plea bargain so they had no right to ask for it because it was a separate incident, but...., it should have been set down for trial later and not heard on that day, any way that’s just the way, I don’t know where you stand...all right, I don’t want any points...I just want everything to be there, clear get it all sorted out as quickly as possible, so that there is no bullshit going on, I don’t need it in my life, you don’t need it in your life, let’s get on with...So at the end of the day I’ve wasted 2 years of my life on all this shit and you’ve wasted 2 years of yours, let’s get on with our fucking lives, I’m over it, im taking people to court over the things...and I’m going to fucking win don’t worry, that’s the next thing, what they’ve done to me, your lot, it’s probably worth between four and six hundred grand, but proving it and getting it all out it’s going to be hard to do, but it’s a house and don’t think I’m going to give that up for nothing.
The intervention order then in place included the following terms:
4. The [appellant] must not contact or communicate with [SB] either directly or in any way (including phone, letter, cards, SMS messages, E-mail, Facsimile, Facebook, Skype etc).
.. . .
12. Notwithstanding the other terms of this order contact is permitted by SMS or Email only in relation to [H].
13. Notwithstanding the other terms of this order contact is permitted at mutually agreed handovers, where the parties may discuss issues regarding [H].
After the handover on 17 January 2014, SB went to the police and alleged a breach by the appellant of, in effect, clauses 4 and 13 of the intervention order. SB relied on her audio recording of the conversation.
On 25 January 2014, SB met with a Senior Constable Lum, an officer attached to the Domestic Violence Unit at the Port Adelaide Police Station. The purpose of their meeting was for SB to make a statement in relation to the events of 17 January 2014 and for Senior Constable Lum to make a copy of the audio recording of the conversation. Senior Constable Lum subsequently arranged for the transcription of the contents of that recording. The appellant was charged with one count of contravening a term of the intervention order.
The Magistrates Court trial
The appellant was served with the complaint in these proceedings on 4 June 2014. The matter was listed for trial in the Magistrates Court commencing 3 December 2014. At the commencement of the trial, evidence was heard on the voir dire with respect to the question of the admissibility of the audio recording made by SB. For the prosecution, evidence was provided by both SB and Senior Constable Lum. The appellant, who appeared unrepresented, gave evidence in support of his own case in opposition to the tender of the recording.
As part of her evidence, SB provided her reasons for recording the conversation between her and the appellant. She said that prior to that date she had made a number of reports to police officers concerning alleged breaches of the intervention order by the appellant. She referred specifically to the 31 charges that came before the court on 10 December 2013. She said she had been advised by the police to agree to the withdrawal of the charges and to pursue an intervention order with stricter conditions. She indicated that she felt aggrieved that the appellant had escaped conviction for those charges. She further indicated that most of the incidents between her and the appellant involved communications or meetings unwitnessed by anyone else, such that her subsequent complaints to police became a case of her word against his. She said that the police advised her to record future communications should the appellant commit any further breaches of the intervention order.
The evidence of Senior Constable Lum was largely limited to the manner by which she copied the audio recording which involved it being transferred onto a second digital recording device before being downloaded onto a third piece of computerised equipment. She then arranged for a written transcription of the recorded conversation.
The appellant opposed the tender of the recording on a number of grounds. He said that he was never informed of the fact that SB was recording the conversation. He complained that the original recording had been erased from the recording device and could not be played in court. He suggested that the manner by which Senior Constable Lum copied the recording may have led to error in the recording process. He complained that the prosecution was seeking to tender a transcript of the second recording of the conversation as opposed to the original recording. The appellant further submitted that the prosecution had failed to establish that there was either a public interest in the communication being made and disclosed, or that SB had a lawful interest in the recording being made and disclosed.
The Magistrate delivered ex tempore reasons for his decision to admit the audio recording and transcript into evidence. His Honour was satisfied that an accurate recording of the conversation was before the court. His Honour, after having regard to the history of the relationship, also found that there was a lawful and legitimate interest in SB recording the conversation without the appellant’s knowledge.
In support of the latter finding, his Honour referred to the following factors: there were ongoing arrangements in place for child handover which required contact between SB and the appellant; SB had previously reported a number of instances of breaches of the intervention order by the appellant during handover visits; SB was placed in a position where she was effectively forced to accept the withdrawal of previous charges laid with respect to those earlier breaches; it was reasonable for SB to think that a breach of the intervention order might occur on the afternoon of 17 January 2014; and SB had a lawful interest in ensuring that she was not subjected to harassment or intimidatory behaviour at custody handovers. The Magistrate also found that there was a public interest in the making of a recording of a person in the act of verbal harassment contrary to the terms of an intervention order.
The trial proceeded for two days on the substantive issue of whether the nature of the conversation between the appellant and SB disclosed a breach of the intervention order. On 18 December 2014, the Magistrate delivered an ex tempore judgment finding the appellant guilty of contravening the intervention order. His Honour found that the appellant spoke in a controlled and non-offensive manner on the occasion of 17 January 2014. However, the terms of the conversation fell outside the bounds of permissible discussion. His Honour concluded as follows.[9]
[9] Police v Groom MCPAD-14-2728, Magistrate’s reasons, 18 December 2014 at [16], [18]-[19].
[T]he conversation goes beyond discussions as to the welfare of their child and is directed also to his ongoing concerns about the existence of the intervention order. He specifically suggests the intervention order be removed as it causes trouble for him and for his relationship with [SB] and restricts their ongoing contact.
. . . .
I accept in particular it was quite inappropriate to say:-
“I just want everything to be there. Clear it, get it all sorted out as quickly as possible so there’s no bullshit going on. I don’t need it in my life. You don’t need it in your life. Let’s get on with it. So at the end of the day I’ve wasted two years of my life on all this shit, you’ve wasted two years on yours. Let’s get on with our fucking lives, I’m over it. I’m taking people to court over things and I’m going to fucking win, don’t worry”.
The words in particular “I’m going to fucking win, don’t worry”, were harassment and intimidation and go well beyond legitimate issues regarding [H].
I accept that it is proven beyond reasonable doubt that the words that were spoken clearly go beyond communication allowed by the terms of the intervention order. In the circumstances I find that charge has been proved beyond reasonable doubt.
The issues arising on appeal
The issues arising on this appeal are confined. The appellant no longer seriously contests that the evidence before this Court comprised an accurate recording of what was said in the conversation and that he was the person speaking. In any event, the evidence of SB and Senior Constable Lum sufficiently supports such findings.
The first issue to be considered is whether the audio recording of the conversation between the appellant and SB was properly admitted into evidence. If the recording was properly admitted, a second issue arising is whether it allowed for a finding, beyond reasonable doubt, that the appellant had contravened a term of the intervention order.
Was the audio recording properly admitted into evidence?
The Listening and Surveillance Devices Act 1972 (“the Act”) regulates the use of listening devices to record private conversations.
The term “listening device” is broadly defined pursuant to section 3 of the Act, and, relevantly, includes the following:
(a) an electronic or mechanical device capable of being used to listen to or record a private conversation or words spoken to or by any person in private conversation (whether or not the device is also capable of operating as a surveillance device); and
(b) associated equipment (if any),
...
Section 3 defines a “private conversation” as follows:
private conversation means any conversation carried on in circumstances that may reasonably be taken to indicate that any party to the conversation desires it to be confined to the parties to the conversation.
Section 4 of the Act prohibits the use of a listening device to record private conversations without the consent of parties to that conversation.
4—Regulation of use of listening devices
Except as provided by this Act, a person must not intentionally use any listening device to overhear, record, monitor or listen to any private conversation, whether or not the person is a party to the conversation, without the consent, express or implied, of the parties to that conversation.
Maximum penalty: $10 000 or imprisonment for 2 years.
Section 5 of the Act prohibits the communication or publication of a recording obtained in contravention of section 4.
5—Prohibition on communication or publication
(1)A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device in contravention of section 4.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2)This section does not prevent the communication or publication of information or material derived from the use of a listening device in contravention of section 4 –
(a) to a person who was a party to the conversation to which the information or material relates; or
(b) with the consent of each party to the conversation to which the information or material relates; or
(c) for the purposes of a relevant investigation or a relevant proceeding relating to that contravention of section 4 or a contravention of this section involving the communication or publication of that information or material.
Section 3 defines “publish” as follows:
publish information or material includes display or deliver the information or material to another.
Notwithstanding the terms of section 4, it is lawful, in certain circumstances, to use a listening device to record a private conversation. Those circumstances are set out in section 7.
7—Lawful use of listening device by party to private conversation
(1)Section 4 does not apply to or in relation to the use of a listening device by a person (including a person to whom a warrant is issued under this Act) if that listening device is used –
(a) to overhear, record, monitor or listen to any private conversation to which that person is a party; and
(b) in the course of duty of that person, in the public interest or for the protection of the lawful interests of that person.
(2)...
(3)A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device under this section except –
(a) to a person who was a party to the conversation to which the information or material relates; or
(b) with the consent of each party to the conversation to which the information or material relates; or
(c) in the course of duty or in the public interest, including, in the case of information or material derived from the use of a listening device in the course of an investigation by an investigating agency, for the purposes of a relevant investigation or a relevant proceeding; or
(d) being a party to the conversation to which the information or material relates, as reasonably required for the protection of the person's lawful interests; or
(e) if the information or material has been taken or received in public as evidence in a relevant proceeding.
Maximum penalty: $10 000 or imprisonment for 2 years.
The Magistrate’s ex tempore remarks for allowing the admission into evidence of the recording largely focus on the question of whether there was a public interest or a lawful interest of SB in the making of the recording. However, there are a number of other requirements that must first be satisfied before the Act will be found to apply.
It has not been contested, on appeal or at first instance, that the device used by SB was a “listening device” for the purposes of the Act. In any event, I am satisfied that the device falls within the definition of a “listening device” in section 3.
The next preliminary issue is whether or not the conversation was a “private conversation”. In Thomas & Anor v Nash,[10] Doyle CJ considered the extent of the term “private conversation” as it applied under the Act.[11]
The definition of “private conversation” indicates that a conversation is private if the conversation, as it takes place and progresses, is intended to be confined to the parties to the conversation, or known participants in the conversation.
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.
There is no reason to give a narrow meaning to the concept of “private conversation”, bearing in mind the objects of the Act. There is no need to trace the precise limits of the concept of a private conversation.
[10] [2010] SASC 153.
[11] At [36]-[38].
I am satisfied that the conversation between the appellant and SB was a “private conversation”. It can be inferred that the appellant intended that what he had to say was to be confined to the person then in front of him, SB.
I am also satisfied that SB intentionally used the listening device to record the conversation with the appellant, that the appellant was unaware that the conversation was being recorded, and that he did not provide his consent, express or implied, to the conversation being recorded.
It follows that the recording was made in contravention of section 4 of the Act, unless the circumstances were such as to fall within an exception provided for in section 7. Consequently, whether or not the recording was lawfully obtained will turn on whether SB’s use of the listening device was, on the occasion in question, “in the public interest or for the protection of [her] lawful interests”, as provided for by section 7(1)(b) of the Act.[12]
[12] I note that there is a further category in which a listening device may be lawfully used by a person to record a private conversation under section 7(1)(b); namely, where it has been used “in the course of duty of that person”. There has never been a suggestion that SB was using the recording in the course of any duty, and this third category can, therefore, be ignored.
In Thomas & Anor v Nash,[13] Doyle CJ considered the application and scope of the term “lawful interests” as it applies under section 7(1)(b).[14]
I have considered a number of decisions dealing with the relevant provisions of the Act, and with similar legislation elsewhere. The decisions are: T v The Medical Board of South Australia (1992) 58 SASR 382 at 399 Matheson J, at 421 Olsson J and at 423 Debelle J; Public Trustee v Alvaro (1995) 182 LSJS 383 at 405 Legoe AJ; Violi v Berrivale Orchards Ltd [2000] FCA 797; (2000) 99 FCR 580 at [27]- [33] Branson J; R v Le [2004] NSWCCA 82; (2004) 60 NSWLR 108 at [47] Giles JA, at [79] Hulme J and at [83]-[84] Adams J; Sepulveda v The Queen [2006] NSWCCA 379; (2006) 167 A Crim R 108 at [142]- [143] Johnson J, with whom the other members of the Court agreed.
In none of those decisions is there an attempt to identify comprehensively the scope of the expression “lawful interests”. That is not surprising. It is an expression which is best left to be applied case by case, subject to some general guidelines.
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”.
[13] Thomas & Anor v Nash [2010] SASC 153.
[14] Thomas & Anor v Nash at [46]-[48].
I agree, with respect, with his Honour’s observation that, when considering whether or not a recording of a private conversation has been obtained in pursuit of a person’s lawful interests, each case will need to be considered on its facts. It also makes sense that, in circumstances where a recorded conversation relates to a serious crime, a court will more readily make a finding that the recording was made in the protection of a person’s lawful interests.
The second context in which a listening device may be used pursuant to section 7(1)(b) is where it has been used in the “public interest”. In R v Smith, Turner and Altintas,[15] Perry J considered whether the recording of a conversation concerning the commission of a murder by two co-offenders, and the subsequent communication or publication of that recording to police, was within the “public interest”. His Honour noted.[16]
It was in the public interest that evidence be obtained of the commission of a serious offence by Turner and Smith, if such an offence had been committed. Furthermore, the communication or publication of the record of the conversation to the police and, if it was held to be otherwise admissible, to the Court during the course of the trial, is likewise "in the public interest" within the meaning of s7(2).
[15] R v Smith, Turner and Altintas [1994] SASC 4874; (1994) 63 SASR 123.
[16] R v Smith, Turner and Altintas at [31].
The lawful interest of the recording person
By way of stating the obvious, we are not concerned here with a crime as serious as murder. Indeed, at one level, the offence said to have been committed was relatively minor as demonstrated by the penalty imposed by the Magistrate. There was no physical violence nor was there any threat of physical violence.
Nonetheless, the breach of an intervention order is still serious, particularly to the person who has sought protection by such an order. In this case, SB had made many allegations of breaching behaviour. Problems of proof had been encountered and none proceeded to a conviction on the merits for various reasons. But that does not mean that SB did not hold genuine concerns for her wellbeing. According to her evidence, she did.
Furthermore, there is no way of knowing how seriously an intervention order might be breached until the fact of breach takes place. Breaches of intervention orders are capable of constituting serious crimes.
Irrespective of whether or not a serious crime is in contemplation, a court should more readily accept that the recording of a “private conversation” has been carried out in pursuit of a person’s lawful interest in circumstances where that person has a genuine concern for their own safety. Domestic violence is a very serious problem in our community. It would appear that, at least, the recognition and reporting of domestic abuse, be it physical, psychological, or by threatening behaviour, is on the rise. An intervention order is a very important first step in protecting a person, usually a woman, who has been the subject of domestic abuse. Such an order gains much of its value in this respect according to the extent that it can be enforced. Respondents must be discouraged from infringing any such court order.
An unrecognised (by the justice system) and unpunished breach of an intervention order further undermines the confidence of a protected person that the law can and will adequately protect them and increases the likelihood of further breaches.
I stress that these are general remarks aimed at explaining why there will be occasions when the making of a recording, in order to prove a breach of an intervention order, will be in the pursuit of lawful interests and within the exception provided for by section 7.
On the facts of this case, the Magistrate was satisfied that SB had a concern for her own safety.[17] I have not had the benefit of hearing SB give her evidence. The Magistrate is best placed to have determined this issue and nothing has been put to me that would cause me to reject that finding.[18] The recording was made out of SB’s concern for her safety and in order to prove any contravention. It was open on the evidence for the Magistrate to have concluded that the recording made by SB was made in pursuit of her lawful interests. On my review of the evidence, I see no reason to depart from that finding.
[17] Police v Groom MCPAD-14-2728, Magistrate’s reasons, 18 December 2014 at [9].
[18] See generally the approach to be taken by this Court on appeal, as to the scope for rejecting a Magistrate’s assessment of the credibility and reliability of a witness, as discussed by White J in Martin v The Department of Transport, Energy & Infrastructure [2010] SASC 141 at [38]-[39] citing Fox v Percy (2003) 214 CLR 118 at [25]-[29] and Warren v Coombes (1979) 142 CLR 531 at 551.
Public interest
I am also of the view that there was a public interest in SB recording the conversation between her and the appellant. SB’s evidence was to the effect that she recorded the conversation on 17 January 2014 for the purpose of obtaining evidence of any breaches of the intervention order by the appellant. There can be a public interest in allowing a protected person, under an intervention order, the ongoing protection available through the recording and documenting of interactions that result in breaches. This is particularly so in circumstances where interactions are unavoidable and often take place privately, such as can be the case where child custody and access issues are concerned. Such a recording will only become public where it is found to be relevant to, that is, probative of an alleged breach of an intervention order.
There is another aspect to the potential for public interest here. Allegations of breaches of an intervention order which occur in private are easy to make and can be difficult to disprove. Such a recording could assist the defence, as well as the prosecution. Were there to be an unfounded allegation, it would be difficult to see how a surreptitious recording by a defendant that would prove the lie, will not have been made in the “public interest” or in the “lawful interest” of such a defendant.
The Magistrate was correct to find that SB’s use of a listening device on the afternoon of 17 January 2014 to record a private conversation with the appellant was lawful. The recording obtained was admissible in the Magistrates Court proceedings, pursuant to section 7(3)(e) of the Act.[19]
Did the contents of what was said by the appellant during the 17 January 2014 conversation breach the intervention order?
[19] Subsection 7(3)(e) is set out earlier. A “relevant proceeding” includes “a proceeding by way of a prosecution of an offence” (section 3 – Interpretation).
The second relevant inquiry is whether the evidence of the recorded conversation between the appellant and SB was sufficient to support a conviction, beyond reasonable doubt, that the appellant contravened a term of the intervention order. This raises the question of construction as to what was permitted by the terms of the order and then the question of whether what was said fell outside what was permitted.
The appellant no longer seriously disputes that it is his voice on the audio recording. However, during oral argument on the appeal, the appellant alluded, in vague and elliptical terms, to the possibility that the audio recording, as copied and transcribed by Senior Constable Lum, may have been doctored or interfered with at some stage prior to or during the transcription process. The appellant submitted that, as there was no date in some way attached to the recording, it failed to support any alleged breach of the intervention order on 17 January 2014, as particularised.
I reject those submissions. The appellant received a copy of the audio recording, as part of the prosecution brief, in September 2014, over two months before his trial took place. The appellant was on notice well in advance of the trial that the prosecution would be seeking to tender a copy of the recording. Had the appellant wished to pursue a challenge to the authenticity of the recording, he had more than sufficient opportunity to do so. The Magistrate heard evidence from both SB and Senior Constable Lum as to how both the recording and the transcription of the conversation were obtained and that at no stage was the recording tampered with. The Magistrate was satisfied that the audio recording and subsequent transcription provided an accurate depiction of the conversation that took place on the afternoon of 17 January 2014. There is no basis in the evidence to challenge that finding.
It will be helpful, at this point, to set out again terms 4, 12 and 13 of the intervention order.
4. The [appellant] must not contact or communicate with [SB] either directly or in any way (including phone, letter, cards, SMS messages, E-mail, Facsimile, Facebook, Skype etc).
. . . .
12. Notwithstanding the other terms of this order contact is permitted by SMS or Email only in relation to [H].
13. Notwithstanding the other terms of this order contact is permitted at mutually agreed handovers, where the parties may discuss issues regarding [H].
Their intent is unambiguous. To the extent contact between the appellant and SB is permitted, it is only to be in relation to H and any discussion is to be limited to issues regarding H. The reason for the exception is to ensure that H’s health, wellbeing and interests are not compromised by the intervention order in place between his parents. The terms of the order do not allow the appellant to engage in discussions on any issue unrelated to the ongoing care of H. In particular, no permission is conferred by the terms of the order to discuss the very existence of the intervention order itself. To the contrary, term 4 prohibits this.
The 17 January 2014 conversation can be broken down into three broad topics. The first two are the issue of child support payments and an apparent Family Court application by the appellant for a formalisation of the custody arrangement. Without finally deciding, it may be that those two topics are sufficiently related to the care of H such as to fall within the scope of permissible discussion pursuant to term 13. However, the third topic raised by the appellant clearly does not fall within the permission. That topic related to the appellant’s ongoing court proceedings regarding the intervention order, and, in particular, the appellant’s appeal against the confirmation of that order.
I set out again, for convenience, the relevant discussion by the appellant specifically addressing the intervention order.
The appellant: …The third thing is I’ve got an appeal in the supreme court about your...
SB:about the what?
The appellant: about the restraining order, so you know what’s happening all right.
SB:I’ve got a letter about it, I didn’t know what it was though because they had, they just give you a number they don’t give you...
The appellant: Ok well I’ve put in an application on the grounds that they have the right to...withdraw all the charges.
SB:Ok
The appellant: Ok at the end of the day it’s just a block on our friendship or relationship or whatever you like to call it and we don’t need, or I don’t need it so far as I’m concerned I’m going to get rid of it if I can, nothings ever set in stone so but they, they, they have you know at the end the day they have no right to ask for it, because they’re inferring to me that there was a plea bargain situation occurring when if I’d have accepted 2 of those charges it would have been plea bargaining, but because I accepted no charges there was no plea bargain so they had no right to ask for it because it was a separate incident, but...., it should have been set down for trial later and not heard on that day, any way that’s just the way, I don’t know where you stand...all right, I don’t want any points...I just want everything to be there, clear get it all sorted out as quickly as possible, so that there is no bullshit going on, I don’t need it in my life, you don’t need it in your life, let’s get on with...So at the end of the day I’ve wasted 2 years of my life on all this shit and you’ve wasted 2 years of yours, let’s get on with our fucking lives, I’m over it, im taking people to court over the things...and I’m going to fucking win don’t worry, that’s the next thing, what they’ve done to me, your lot, it’s probably worth between four and six hundred grand, but proving it and getting it all out it’s going to be hard to do, but it’s a house and don’t think I’m going to give that up for nothing.
The appellant argued that SB had entrapped him into breaching the intervention order, by seeking from him a further response after he first raised the issue. If SB had not asked “about the what?”, the appellant would not have gone on to discuss in any further detail the intervention order and other associated matters. I am not persuaded by that argument. It is apparent from both the audio recording and the transcript that the appellant elected, of his own volition, to continue his discussion of the intervention order and related issues. It was always open to the appellant to respond by indicating that he was not permitted to discuss the issue further. Indeed, he should never have attempted to engage SB on that topic at all. In any event, SB ultimately responded with a simple “Ok”. The appellant could have stopped there but did not.
With respect to the tone and disposition of the appellant during the conversation, the Magistrate made the following finding.[20]
I accept that in listening to the conversation it is evident [the appellant] speaks in a controlled and non-offensive manner for much of the time – his voice is not raised and I do not suggest that he uses harsh language in the conversation.
[20] Police v Groom MCPAD-14-2728, Magistrate’s reasons, 18 December 2014 at [16].
That finding has not been challenged. Nevertheless, the appellant chose to discuss matters unrelated to the care and welfare of H. Notwithstanding the restrictions imposed by the terms of the intervention order, the appellant spoke of his pending appeal in the Supreme Court against the confirmation of the intervention order, his desire to have the order removed, and the reasons underpinning that desire. He concluded with the following:
So at the end of the day I’ve wasted 2 years of my life on all this shit, you’ve wasted 2 years on yours. Let’s get on with our fucking lives, I’m over it, im taking people to court over things and I’m going to fucking win, don’t worry.
Considered in the context of a face to face conversation with an ex-partner who had sought and obtained the protection of an intervention order, and against the backdrop of a relationship marred by a sustained period of significant disharmony, these remarks can be seen as intimidating and likely to be upsetting. In particular, the comment that “I’m going to fucking win, don’t worry”, irrespective of tone, was aggressive and confrontational.
The Magistrate was correct to find that the appellant’s words fell outside the type of conversation otherwise permitted by the terms of the intervention order.
Conclusion
The audio recording of the conversation between the appellant and SB on the afternoon of 17 January 2014 was properly admitted into evidence at trial. Having regard to all of the evidence before the Magistrate, his Honour was correct to find, beyond reasonable doubt, that the appellant contravened a term of the intervention order.
The appeal has no prospect of succeeding. As such, a refusal of permission to appeal out of time would not lead to a miscarriage of justice. I refuse the application to extend the time within which to appeal and dismiss the appeal.
I will hear the parties with respect to any consequential matters.
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