In the Matter Of Hyde

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
IN THE MATTER OF HYDE
[2023] SASC 146
Judgment of the Honourable Justice Kimber
COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - LISTENING DEVICES AND SURVEILLANCE DEVICES
COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - DEALING IN INFORMATION - OTHER MATTERS
This is an application pursuant to ss 10 and 11 of the Surveillance Devices Act 2018 (SA) for orders authorising the provision and use of three audio recordings and associated transcripts alleged to have been devised from the use of listening devices that recorded private conversations. The recordings are alleged to have been made respectively on 13 May 2022, 27 October 2022 and 10 November 2022. The applicant contends that the recordings were made in the public interest.
The second interested party makes the same application in respect of any orders made in favour of the applicant.
Held:
1.Application granted with respect to the recordings alleged to have been made on 27 October 2022 and 10 November 2022.
2.Application dismissed with respect to the recording alleged to have been made on 13 May 2022.

Local Government (Elections) Act 1999 (SA) s 67; Surveillance Devices Act 2016 (SA) ss 3, 4, 10, 11, referred to.
Commonwealth v Northern Land Council (1992) 176 CLR 604; Medical Board of South Australia v Fisher [2000] SASC 92; Thomas v Nash (2000) 107 SASR 309; In the matter of Greyhound Racing SA Ltd [2023] SASC 63; Farm Transparency International Ltd & Anor v State of New South Wales (2022) 403 ALR 1; Bridge v Bowen (1916) 21 CLR 582, applied.

IN THE MATTER OF HYDE
[2023] SASC 146
Civil: Application
KIMBER J:

Mr Alexander Hyde, the applicant in the proceeding before me, is the petitioner in proceedings filed in the Court of Disputed Returns under Part 13 of the Local Government (Election) Act 1999 (SA) (LG Act). Pursuant to s 67(2), the Court of Disputed Returns is constituted by a District Court Judge. The proceedings in the Court of Disputed Returns are in the form of an election petition (the Amended Petition) alleging illegal practices (as defined under Part 12 of the LG Act) which are alleged to have affected the election of councillors of the Central Ward of the Adelaide City Council in 2022.
The Electoral Commissioner of South Australia (the Electoral Commissioner) and Mr Jing Li are the first interested party and second interested party respectively in the application before me. In the Amended Petition, in essence, Mr Hyde seeks to have the election for the council for the Central Ward declared void based on allegations directed to the conduct of Mr Li and/or persons alleged to have been assisting him. Mr Li was returned as a councillor for the Central Ward following the election. Mr Li denies the allegation in the petition and seeks its dismissal. The Electoral Commissioner also seeks dismissal of the petition.
The Amended Petition is listed for trial commencing on 17 October 2023.
The application of Mr Hyde, the alleged recordings and transcripts
The application of Mr Hyde was filed on 13 June 2023 but revised on 7 July 2023. Pursuant to ss 10 and 11 of the Surveillance Devices Act 2018 (SA) (SD Act), Mr Hyde seeks orders authorising the provision and use of audio recordings and associated transcripts alleged to have been devised from listening devices on 13 May 2022, 27 October 2022 and 10 November 2022 respectively.
The three audio recordings and associated transcripts are said to be:
1.An audio recording made by Mr Shengbao (Colin) Ma of a conversation between Mr Ma, Mr Chenkang Wang and Mr Li on 13 May 2022 at the Diaspora Kouzina restaurant at 250 Pulteney Street, Adelaide (document 7216 of the List of Documents Revision 2 (FDN 48) filed in the Court of Disputed Returns in action number CIV-22-013997 and in possession of the Electoral Commissioner). Further, an English transcript prepared of the recording on 13 May 2022 (document 7217 of the List of Documents Revision 2 (FDN 48) filed in the Court of Disputed Returns in action number CIV-22-013997, in the possession of Electoral Commissioner).
2.An audio recording made by the wife of Mr Simon Hou on her mobile phone of a conversation between Mr Hou and Mr William Bai at Stonemill Rice Roll restaurant at 180 Morphett Street, Adelaide on 27 October 2022 (a recording in the possession of Mr Hyde). Further, an English transcript prepared of the audio recording made on 27 October 2022 (a transcript in the possession of Mr Hyde).
3.An audio recording made by Mr Ma of a conversation occurring between him, Mr Wang and Mr Wang’s unnamed girlfriend on 10 November 2022 at the home of Mr Wang in Marden (document 7218 of the List of Documents Revision 2 (FDN 48) filed in the Court of Disputed Returns in action number CIV-22-013997, in possession of the Electoral Commissioner). Further, an English transcript of the recording on 10 November 2022 (document 7219 of the List of Documents Revision 2 (FDN 48) filed in the Court of Disputed Returns in action number CIV-22-013997, in possession of the Electoral Commissioner).
As set out above, the recordings said to have been made on 13 May 2022 and 10 November 2022 (and associated transcripts) are in the possession of the Electoral Commissioner. Mr Hyde seeks orders that the Electoral Commissioner may provide to him copies of the recordings, associated transcripts and ‘information relating to them’, and orders that Mr Hyde may use those materials ‘and any material derived from and relating to them’ for the purposes of the Court of Disputed Returns proceedings.
As set out above, the recording said to have been made on 27 October 2022 (and associated transcript) is in the possession of Mr Hyde. Mr Hyde seeks orders that he may provide to the Electoral Commissioner and Mr Li (and their respective legal representatives) copies of the recording, transcript and information relating to the recording, for the purpose of the Court of Disputed Returns proceedings and that Mr Hyde may use the recording, transcript and information and/or material derived from or relating to it, for the purposes of the Court of Disputed Returns proceedings.
For completeness, Mr Hyde also seeks an order that the Court of Disputed Returns may use the three recordings and transcripts, and any material or information derived from them, for the purpose of the hearing and determination of the Court of Disputed Returns proceedings, including by reference to, and inclusion of details of the same, in any published reasons for judgment.
The application of Mr Li
By application filed on 8 June 2023, Mr Li also seeks orders pursuant to ss 10 and 11 of the SD Act. The application of Mr Li is contingent upon relevant orders sought by Mr Hyde being granted. In short, should any aspect of Mr Hyde’s application be granted, Mr Li seeks the same orders. Mr Li does not press his application should any corresponding aspect of the application of Mr Hyde not succeed.
Given the contingent nature of the application of Mr Li, it is appropriate to concentrate upon the application of Mr Hyde. This is not to overlook that Mr Li filed an affidavit from his solicitor in support of his application. However, the affidavit filed on behalf of Mr Li adds nothing of substance to the material upon which Mr Hyde seeks to rely in advancing his application.
The material upon which Mr Hyde relies is his two affidavits (and exhibits); the affidavit and oral evidence of Mr Hou (the sixth interested party) and the transcripts said to have been made of each recording. Mr Hou was unrepresented in the proceeding before me. The three conversations are said to have been recorded by the wife of Mr Hou and a Mr Ma. Mr Hyde has not adduced evidence about why neither has provided an affidavit in the proceeding before me.
The three recordings and transcripts
The two affidavits of Mr Hyde are dated 9 June 2023 and 21 September 2023. The affidavit of Mr Hou is dated 26 September 2023. The circumstances in which each recording is said to have been made, and the subject matter of each recording, is set out in the three affidavits just mentioned (and exhibits) and what are said to be transcripts of the three recordings. I ordered that the transcripts be provided to the Court. I did not order that the recordings be provided as it appears common ground that each recording needed to be translated as it was not in English. No party submitted that, if I received the transcripts, I should also receive and listen to the corresponding recording. In short, for reasons of practicality as it appears that each recording is not in English, I have understood the parties to have accepted that the transcripts are to be treated as if they are the recordings. This is not to overlook that Mr Li did not concede that I should receive any transcript nor accept that any transcript was necessarily accurate. With respect to accuracy, Mr Li submitted that there was no evidence that an experienced or accredited interpreter had been used to prepare any transcript.
I will outline some of what is set out in the three affidavits and exhibits before returning to the transcripts.
The recording said to have been made on 13 May 2022
This recording is said to have been made by Mr Ma.
Exhibited to the affidavit of Mr Hyde dated 9 June 2023 are signed statements of Mr Ma apparently provided to the Electoral Commissioner on 14 November 2022 and 31 January 2023 respectively. Also exhibited to the affidavit of Mr Hyde dated 9 June 2023 is a transcript of an interview said to have been conducted with Mr Ma on 8 December 2022. That interview is said to have been conducted by an investigator retained by the Electoral Commissioner. There is no affidavit from Mr Ma. I do not understand that there is any dispute Mr Ma said what is set out, but what he said is not evidence of the truth.
In his statement dated 14 November 2022, Mr Ma sets out the following with respect to events alleged to have occurred on 13 May 2022:
2.I work for Radio Free Asia which is based in Washington DC.
3.At 10.30am on 13 May 2022, a friend of mine, Mr Chenkang Weng, asked me to attend a meeting with a candidate in the Adelaide City Council elections, Mr Jing Li. I knew Chenkang Weng through playing basketball. Chenkang Weng told me that Jing Li had plans to become Mayor one day. I was working for UniSA at their Magill campus at the time and I think they had hoped I would know some students that could vote for Jing Li.
4.I do not know how Jing Li and Chenkang Weng knew each other.
5.The meeting occurred at a café in the city called Diaspora Kouzina at 250 Pultney Street, Adelaide.
6.At this meeting, Jing Li told us his plans to obtain people’s support for the election.
7.Firstly, he said he knew people (either Chinese owners or managing agents) who owned or operated apartment buildings in the city and they knew a lot of information about Chinese students. He said they had told him what rooms were occupied by Chinese students and he would be phoning or emailing them for support.
8.Secondly, he had asked the Chinese business community in Adelaide for their support.
9.Thirdly, he wanted to ask Chenkang Weng and myself to help to encourage any Chinese students we knew to vote for him. He also said that any parents of Chinese students visiting on temporary visas could register to vote.
10.Jing Li also told us that he had contacted the Chinese Consul‑General in Adelaide for his support but the Chinese Consul‑General did not think he could do this at this time.
11.Chenkang Weng said that he knew a lot of Chinese students through basketball and also through his business interests, as he owned a karaoke bar in the city called KTV. The first step was getting these students to register to vote.
In the statement dated 31 January 2023, Mr Ma sets out the following with respect to the same alleged events:
6.In May 2022, an acquaintance of mine named Chenkang Weng (Vincent) sent me a message on WeChat about a person he knew who wanted to become the future Mayor of Adelaide but he needed more people to support him. This person was Jing Li.
7.Vincent told me that Jing Li had asked for his help to become the new Adelaide City Councillor at the upcoming Local Council election.
8.I have known Vincent since 2017, he was a student at UniSA and we played basketball together on the weekends.
9.I agreed to meet Vincent and Jing Li at Diaspora Kouzina on 13 May 2022, at approximately 10.30am. This was the first time I met Jing Li.
10.Jing Li told Vincent and I that he knew of ways to obtain the local Chinese people’s support for the election, particularly Chinese students and those on temporary visas living in the city.
11.Jing Li said that he was already in contact with real estate agents in charge of some apartment buildings in the city. They had told him which apartments were occupied by Chinese people, their names and contact details.
12.Jing Li thought that this was not enough and asked Vincent and I to help him get more people to enrol to vote for him.
13.Jing Li told me that he tried to get support from the Consulate‑General of the People’s Republic of China in Adelaide but was told they could not assist at this time because there were too many people watching. I think he has a very good relationship with the Consulate.
14.Jing Li also said that he has the support of Jiangsu Chamber of Commerce. Jiangsu is a big business group with offices in Adelaide, Sydney and Melbourne and they have a good relationship with the CCP.
In his submissions, Mr Hyde did not take me to any aspect of the interview on 8 December 2022. For that reason, I proceed on the basis that it is the position of Mr Hyde that interview adds nothing material to what Mr Ma has set out in his two statements.
The recording said to have been made on 27 October 2022
When Mr Hyde’s application came before me for submissions on 22 September 2023, the only account with respect to the alleged recording on 27 October 2022 was set out in his affidavit dated 9 June 2023. In that affidavit, Mr Hyde sets out the following:
4.In the course of preparing my case in the Court of Disputed Returns proceedings, I was made aware by Mr Simon Hou (Mr Hou) of a digital file containing an audio recording taken of a conversation that occurred between Mr Hou and Mr William Bai (Mr Bai) on Sunday 27 November 2022 at the Stonemill Rice Roll restaurant at 180 Morphett Street, Adelaide. I understand that the audio recorded by Mr Hou’s wife on her mobile phone during the conversation, following admissions made by Mr Bai of involvement in a dishonest practices in respect of the handling of Election ballots.
5.Mr Hou communicated to me an intention to provide the recording to the ECSA, to ensure the integrity of the election.
6.I know Mr Bai to be the director of Majesty Real Estate (now called Harcourts St Peters), a city based real estate company.
7.Mr Hou provided me with a copy of the audio recording via email on 16 March 2023 at 3.12pm. I observed whereupon listening to the file, that the conversation occurred in Mandarin.
8.On or about 19 March 2023 I caused that audio recording to be transcribed with the assistance of an associate who is a native Mandarin speaker.
9.From my understanding of the translated audio file, it contains evidence going to the commission of illegal practices which affected the outcome of the Election and bear direct relevance to the Petition in the Court of Disputed Returns proceedings.
10.On 12 April 2023 I made discovery of the transcript of 19 March 2023 in a list of documents filed in the Court of Disputed Returns proceedings. I identified therein that the transcription was protected from production due to litigation privilege.
As might be obvious, there are matters within [4] and [5] immediately above which refer to what Mr Hyde has been told. Any such matters are not admissible for the truth of what was said.
On 22 September 2023, the application of Mr Hyde was adjourned to 27 September 2023. This occurred as there was uncertainty as to whether any of the interested parties had been advised of the hearing on 22 September 2023. The only interested party who appeared on 27 September 2023 was Mr Hou. On that day, the matter was adjourned to 3 October 2023. On that day, over the objection of Mr Li, I received the affidavit of Mr Hou dated 26 September 2023. Leave was given to cross‑examine Mr Hou.
In his affidavit dated 26 September 2023, Mr Hou sets out the following with respect to the conversation on 27 October 2022:
1.I was candidate to be a Councillor for the Central Ward in the City of Adelaide (the Council) in the 2022 periodic election (the Election).
2.On or around 23 October 2022 I was undertaking a letter box drop of campaign material at apartment buildings in the central business district. I had undertaken letterbox drops in the same apartment buildings approximately the week prior. On this day, I observed that most letterboxes that I had previously observed to have visible voting ballot envelopes in them a week prior, now had no visible voting ballot envelopes. However, the other mail build up that had been present in the letterboxes the week earlier still remained. I found this to be irregular.
3.On 25 October 2022 my friend sent me message on Wechat (a Chinese social media application) featuring a screenshot of other Wechat messages that it appeared, multiple recipients had received from Jing Li's campaign team. I recall that the messages, which were in Mandarin, contained words to the effect that: I believe you have received your ballot papers. Let's all work together to support Jing Li. I am coming to your building on Tuesday 18 October 2022 at 7pm to pick up the ballots. Before I could save the screenshot, it was recalled on the app by my friend shortly after I received it, so I do not have a copy of it.
4.By this time, I had developed concerns about the processes that other candidates in the Election were employing to secure votes and the integrity of the Election. I discussed these concerns with my wife, Linda (my wife).
5.Around 12.30pm on 27 October 2022 my wife and I were in the vicinity of the Vision On Morphett Apartment building at 180-182 Morphett Streel, as we were going to lunch at the Stonemill Rice Roll restaurant, which is on the ground floor of the building. We observed two young men of Chinese appearance holding a handful of open voting ballot envelopes. My wife and I felt this was suspicious, so my wife quickly took some photos of the men on her mobile phone.
6.About a minute later, after my wife and I entered the Stonemill Rice Roll restaurant, I observed Keith Jin (Mr Jin), who I knew as a member of Jing Li's election campaign team, meeting with William Bai (Mr Bai), who I knew as the director of Majesty Real Estate (now called Harcourts St Peters), a city based real estate company. Mr Jin was holding a stack of ballot envelopes. As they saw me approach, they quickly moved away.
7.I felt upset and uncomfortable about the situation as it appeared to me that Mr Bai may have passed voting ballot envelopes to Mr Jin. About 20 minutes into lunch, I decided that I could not ignore it, so I called Mr Bai on the telephone, as I knew his office was nearby, and asked him to come to the restaurant to talk to me.
8.Approximately 5 minutes later, Mr Bai came to the restaurant. I told him that as a real estate agent myself, I know that every agent will receive election ballots on behalf of property owners. I told him that it is illegal to pass their election ballots to other people. I told him that he crossed a line because he knew that Mr Jin was helping Jing Li. Mr Bai told me that he passed the ballots to Mr Jin because someone told him to do so, that he did not want to get involved in the Election, and he just did what he was told to do. The conversation did not end happily and I told him that I would present this information and evidence to the Electoral Commissioner.
9.At some point over the next week, my wife told me she had recorded part of the conversation on her mobile phone.
10.I subsequently provided the photos taken by wife on 27 October 2022 to Alexander Hyde and asked him to raise the matter with the Electoral Commission for them to investigate what I believed to be dishonest practices that were occurring in the Election.
11.I am aware that Alexander Hyde is challenging the outcome of the Election on the basis of alleged illegal practices, in proceedings in the Court of Disputed Returns.
12.My wife transmitted the recording to me via Wechat after which I stored it on my computer.
13.I provided the recording to Alexander Hyde via email on 16 March 2023 for it to be used in the Court of Disputed Returns proceedings.

As might be obvious, what Mr Hou was told by his wife about her having made a recording is not evidence of the truth of what she said.
In his oral evidence, among other things, Mr Hou stated that he had been contacted by Mr Hyde after the hearing on 22 September 2023; that after that contact and before 26 September 2023, he received a draft affidavit from a solicitor; on 26 September 2023 he met with that solicitor, read the affidavit more than once and having done that, signed the affidavit. The clear effect of his evidence was that he signed the affidavit as it was accurate. I am satisfied Mr Hou was familiar with the matters set out in the affidavit. Among what he said in evidence was that it set out matters that he had previously communicated to one or more other persons.
In his evidence, Mr Hou initially said that he had corrected one aspect of the draft affidavit before signing it. When confronted with a copy of the draft affidavit, Mr Hou conceded that there had not been any change. Mr Li invited me to doubt the credibility and reliability of Mr Hou because of that change in his evidence. Having seen and heard Mr Hou give evidence, I do not doubt he was honest. The error made by Mr Hou about whether he had amended the draft affidavit also does not cause me to have any meaningful doubt about the reliability of what Mr Hou has said. Having seen and heard Mr Hou give evidence, I am satisfied that he has reason to recall the events said to have occurred on 27 October 2022 and that he did his best in both the affidavit and oral evidence to relate events accurately. This is not to overlook that the best evidence of what was said during any alleged recording will be the recording itself.
The recording said to have been made on 10 November 2022
This recording is also said to have been made by Mr Ma.
As set out above, exhibited to the affidavit of Mr Hyde dated 9 June 2023 are the respective statements of Mr Ma dated 14 November 2022 and 31 January 2023 and the transcript of interview said to be conducted on 8 December 2022. Nothing set out in the two statements or the interview is evidence of the truth of what Mr Ma has said.
In his statement dated 14 November 2022, Mr Ma states:
14.On 10 November 2022, I visited Chenkang Weng at his home in Marden. I had not seen him for some time.
15.I knew that he would tell me what he had been doing for Jing Li so I recorded our conversation. The voices in the recording are my own, Chenkang Weng and his girlfriend. I do not recall her name at this time. A one point on the recording she makes a reference to knowing that Jing Li has been introduced to some Chinese people in the business community but I do not know if she was saying this as a result of being told by Chenkang Weng. I have provided a copy of this recording on a USB device to ECSA and it is in Mandarin so someone will need to translate.
16.Chengkang Weng said that Jing Li had visited him several times at the KTV bar. He promised to support his plans to open another bar and said that he could get the SA Premier and Chief of Police to attend the grand opening.
17.When I asked him how he had supported Jing Li, he told me that they had obtained 20 ballot papers and 10 of them had been completed by Chenkang and another student. I do not know the name of this other student but his nickname is ‘Alfie’ and he moved to Adelaide from New South Wales last year. He also said that the other 10 had been posted to Jing Li’s office and Jing Li had signed these on behalf of the voters.
In his statement dated 31 January 2023, Mr Ma states:
53.When I visited Vincent’s house on 10 November 2022, he told me that he had helped Jing Li fill in about 10 forms. He did not mention whether these forms were to register to vote or the actual ballot papers.
54.His girlfriend mentioned that Councillor Simon Hou had helped Jing Li as well.
55.She said that Councillor Simon Hou introduced Jing Li to some important government people and businessmen to help garner Jing Li support.
56.I think Jing Li organised approximately 200 – 300 forms to be signed by one person.
In the interview on 8 December 2022 and with apparent reference to the meeting on 14 November 2022, Mr Ma made at least the following statements with respect to the meeting on 10 November 2022:
Mr Ma:Yes, he said he filled the form by himself, 10.
Investigator:       Yeah. But he’s talking about this form, the enrolment form or the voting form?
Mr Ma:I think he’s talking about this one or that one because…I visit him his home but there no one there.
Investigator:       You did. It’s, I think it’s in the statement there, on the other page – 10 November.
Mr Ma:Yes.
Investigator:       So that’s just before the voting closed.
Mr Ma:Yes. I don’t know for the…
Investigator:       Is that a Thursday? It’s a Thursday.
Mr Ma:Thursday, yes.
Investigator:       Voting closed 5.00 o’clock Thursday.
Mr Ma:No one … 10^th.
Investigator:       Yeah, so you had to have your postal votes posted.
Mr Ma:Before.
Investigator:       By 5.00 o’clock, Thursday, 10 November.
Mr Ma:That’s already done, this was. I don’t know which form he talking about. Maybe this one, maybe that one.
Investigator:       Yeah, so when you say ‘this one’ you mean enrolment form and when you say that one ‘the voting form’. You don’t know.
Mr Ma:I don’t know. He said he filled out 10.
Investigator:       He filled out 10.
Mr Ma:Yes.
Investigator:       But we don’t know what form, whether it was the enrolment form or the voting form?
Support person:    May I speak with you. The enrolment closes quite early on. So they won’t be talking about in November the enrolment form.
Investigator:       Yeah. Okay. Thanks Fiona. So does that make more sense to you when you have that picture, if it’s the … you have to be enrolled before you get your voting slip.
Mr Ma:Yeah. I think they’re easy to fill in.
Investigator:       Yeah.
Mr Ma:How many more that Li Jing got, maybe 300, or 200. I can check on the signature. I think if the one person signed the ballot… I think Li Jing organised.
Investigator:       Yeah.
Mr Ma:Is signed by one person.
Relevance
No party submitted before me that any of the three recordings might not be relevant to matters in the Amended Petition. As has been set out earlier, in the petition proceedings, the recordings said to have been made on 13 May 2022 and 10 November 2022 (and the associated transcripts) are set out in Electoral Commissioner’s List of Documents Revision 2, filed on 8 June 2023. That list of documents sets out that the two recordings are ‘directly relevant to the issues raised in the Amended Petition’. On that basis, and given the approach of the parties, I am satisfied the two recordings just mentioned might be relevant to the petition proceedings.[1]
[1] Commonwealth v Northern Land Council (1992) 176 CLR 604, 613–614, 634–635; Medical Board of South Australia v Fisher [2000] SASC 92, [37].
With respect to the recording on 27 October 2022, the evidence establishes that Mr Hou and his wife had been at a restaurant where a conversation touching upon conduct of potential relevance to the election occurred; that Mr Hou told the person involved in that conversation that information would be passed to the Electoral Commissioner; that Mr Hou later received a recording from his wife; Mr Hou sent that recording to Mr Hyde having asked him to raise with the Electoral Commissioner at least what had been observed before the meeting at the restaurant (giving rise an inference that the recording related to matters in which Mr Hou believed the Electoral Commissioner might have an interest and that the recording might be of the conversation in the restaurant) and that Mr Hyde caused a transcript to be prepared. Bearing all those matters in mind, I am satisfied the recording might be relevant to the petition proceedings. Further, with respect to that conversation, I am satisfied the conversation occurred on 27 October 2022. The wife of Mr Hou was present at the restaurant and had been present earlier that day when Mr Hou observed the alleged conduct set out within [5] of his affidavit which she photographed. Given Mr Hou received a file from his wife which he passed to Mr Hyde and the summary of that transcript below, I am satisfied the conversation set out in the transcript occurred on 27 October 2022. Mr Hou sets out in his affidavit that the participants in that conversation were himself and Mr Bai. Mr Hou does not suggest any other person was present.
The transcripts
As set out above, I ordered that the three transcripts be provided to the Court. I made that order for two reasons. First, I was satisfied that each might be relevant to the issues in the petition proceedings. Second, bearing that in mind, I was satisfied that the respective transcripts might shed light on whether the device used to make the recording from which the transcript had been prepared was used in the public interest.
Notwithstanding the submission of Mr Li about the absence of evidence about the person responsible for the preparation of the transcripts of the recordings said to have been made on 13 May 2022 and 10 November 2022 and the absence of evidence that any person responsible for the preparation of any of the three transcripts was an experienced or accredited interpreter, I have proceeded on the basis that each transcript is at least substantially accurate. In each instance, there is no reason to believe the contrary might be so.
There is no reason to conclude that there might have had any motivation for whomever prepared the two transcripts in the possession of the Electoral Commissioner to prepare an inaccurate transcript and/or might have done so less than diligently. As for the transcript in the possession of Mr Hyde, it must be accepted that he has an interest in this application and the Amended Petition. Nonetheless, the evidence establishes that he did not prepare the transcript. There is no reason to conclude that whomever undertook that task may not have had sufficient ability to prepare an accurate transcript and/or may not have undertaken that task diligently.
Each transcript attributes statements to specific persons. That aspect of the transcripts is not admissible. The transcripts set out the date on which the respective conversations occurred. That aspect of each transcript is also not admissible. Indeed, the transcript said to be of the conversation on 27 October 2022 sets out that the conversation was on 27 November 2022.
It is not necessary to set out everything within the transcripts. A summary is sufficient.
The transcript of the conversation said to be on 13 May 2022 includes discussion about an upcoming election and is predominantly, perhaps even exclusively, about encouraging persons eligible to vote.
The transcript of the conversation said to be on 27 October 2022 includes discussion that may touch upon the way in which voting papers have been handled and perhaps discussion that may touch on voting papers being made available to persons other than those eligible to complete them. This transcript also appears to contain what might be commentary by the person who prepared the transcript or perhaps another person. I have ignored anything that might be commentary.
The transcript of the conversation said to be on 10 November 2022 includes discussion that may touch upon, at least, the handling of registration papers and such papers being signed by a person other than the person being registered.
The Surveillance Devices Act 2016 (SA)
Section 4(1) of the SD Act prohibits the installation, use, or maintenance of, a listening device:
1.to overhear, record or listen to a private conversation to which the person is not a party; or
2.to record a private conversation to which a person is a party.
Listening device is defined in s 3 of the SD Act to mean:
listening device means—
(a)     a 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 some other kind of surveillance device); and
(b)     associated equipment (if any),
but does not include—
(c)     a device being used to assist a person with impaired hearing to hear sounds ordinarily audible to the human ear; or
(d)     a device, or device of a class or kind, excluded from the ambit of this definition by the regulations;
Private conversation is defined in the same section to mean:
private conversation means a conversation carried on in circumstances that may reasonably be taken to indicate that at least 1 party to the conversation desires it to be heard only by the other parties to the conversation (but does not include a conversation made in circumstances in which all parties to the conversation ought reasonably to expect that it may be heard by a person who is not a party to the conversation);
Sections 10 and 11 deal with the use, communication or publication of information or material derived from the use of a listening device. Section 10(1) provides:
(1)A person must not knowingly use, communicate or publish information or material derived from the use of a listening device or an optical surveillance device in circumstances where the device was used in the public interest except in accordance with an order of a judge under this Division.
Maximum penalty:
(a) in the case of a body corporate—$50 000;
(b) in the case of a natural person—$10 000.
Section 11 permits application to made to this Court for orders with respect to material derived from a listening device. Section 11 provides:
(1)For the purposes of sections 9 and 10, a person may, in accordance with the rules of court, apply to a judge for an order authorising the use, communication or publication of information or material derived from the use of a listening device or an optical surveillance device.
(2)An order under this section may—
(a)     specify the information or material the subject of the order; and
(b)     specify the manner in which, and to whom, the specified information or material may be used, communicated or published;
(c)     contain—
(i)conditions and limitations; and
(ii)any other matter as the judge thinks fit.
Listening device
In the application before me, Mr Li submitted that I could not be satisfied as to the type of device used. That is true but I do not need to be satisfied of the type of device, just that it was a listening device. The transcripts establish that there was a conversation. The respective conversations must have been recorded. Without that being the case, there could not be a transcript. I am satisfied that each conversation must have been recorded using a listening device.
Private conversation
The prohibition in s 4 of the SD Act only applies to a private conversation. In Thomas v Nash,[2] Doyle CJ held:
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.[3]
[2] (2000) 107 SASR 309.
[3] Ibid 316 [36]–[38].
In his submissions, Mr Hyde invited me to find that the recording of the conversation said to be on 13 May 2022 was not a private conversation. Mr Hyde submitted that Mr Ma had set out it was a recording of a conversation which took place in a café (i.e. – a public place) and that setting is an indication that the conversation may not have been a private one.
There is no admissible evidence of the location in which the conversation said to have been on 13 May 2022 took place. Having considered the content of the conversation said to have taken place on 13 May 2022, I am satisfied it was a private conversation. The subject matter is such that the more obvious inference is that at least one party to that conversation desires it to be heard by only the participants. Having considered the transcript of the conversation said to have occurred on 10 November 2022 and the subject matter, I am also satisfied that was a private conversation.
As for the conversation on 27 October 2022, I have considered both the transcript and the evidence of Mr Hou as set out in his affidavit about the circumstances in which that conversation took place. Mr Hou was cross examined by counsel for Mr Hyde and counsel for Mr Li. It was not suggested to him that conversation was not private. Putting that aside, the content of the conversation is consistent with it being a private conversation and I make than finding.
Used in the public interest — s 11(1) of the SD Act
The issue of whether the listening device was ‘used in the public interest’ directs attention to use of the listening device at the time when the recording was made. The question of whether a listening device was used in the public interest is an objective one. It is not an issue that can be determined solely by considering the subjective belief of the person who made the recording. In any event, I have no direct evidence of why the person said to have made the respective recordings took that step. The recordings are said to have been made by Ms Hou and Mr Ma, neither of whom have provided an affidavit.
In the matter of Greyhound Racing SA Ltd,[4] Stein J made the following observations with which I respectfully agree:
The SD Act does not define what is in the public interest.[5]
The term “public interest” has a broad expression without fixed meaning. … [A] public interest test calls for a discretionary evaluative judgment limited only by the scope and purpose of the relevant legislation.[6]
[4] [2023] SASC 63.
[5] Ibid [24].
[6] Ibid [25], citing Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129 and O’Sullivan v Farrer (1989) 168 CLR 210.
Questions about what is in the public interest will ordinarily require consideration of several competing features.[7]
[7] [2023] SASC 63, [27], citing Osland v Secretary of the Department of Justice (2008) 234 CLR 275.
The provisions of the SD Act seek to balance the public interest in maintaining the privacy of activities and conversations as against the public interest in the recording and use of recordings of such matters in given circumstances.[8] The requirement for a judicial determination in order to allow what would otherwise be prohibited by the statute is intended to ensure that there is an appropriate balance between protecting privacy and permitting use of recordings of private activities and conversations where the use thereof is the greater interest.[9]
[8] [2023] SASC 63, [29].
[9] See also, Farm Transparency International Ltd & Anor v State of New South Wales (2022) 403 ALR 1, 23 [92] (Gageler J), 14–15 [48]–[54] (Kiefel CJ and Keane J) as to the policy of including a “public interest” exception to prohibitions in the SD Act and similar legislation.
I am satisfied the proper conduct of an election, including that proper processes are followed with respect to both how persons register to vote and how ballot papers are completed, is a matter in the public interest. As Griffith CJ observed in Bridge v Bowen, ‘the proper choice of representatives at an election is a matter of public interest’.[10]
[10] Bridge v Bowen (1916) 21 CLR 582, 597.
The respective recordings

As set out above, it is appropriate to proceed on the basis that each separate recording is relevant to the Amended Petition and that the transcript that I have read is, at least, substantially accurate.
The recording on 27 October 2022
It is convenient to deal first with this recording.
As set out above, I accept the evidence of Mr Hou set out in his affidavit dated 26 September 2023. Based upon that affidavit, I am satisfied that: there was a conversation on 27 October 2022 at the Stonemill Rice Roll Restaurant between Mr Hou and Mr Bai; Mr Bai was believed to be supporting Mr Li in some way in the election; Mr Bai told Mr Hou that he had been in possession of ballot papers; and, based upon what was said, Mr Hou formed the view the Electoral Commissioner should be informed of at least some matters. For the reasons also set out above, I am satisfied the conversation took place on 27 October 2022.
Mr Hou appears to have been unaware that any recording was made at the time. Mr Hou later received what he understood to be a recording from his wife. Anything said to Mr Hou by his wife cannot be used for the truth of what was said by her. Mr Hou passed that recording onto Mr Hyde on 16 March 2023. Mr Hyde has caused that recording to be translated and transcribed.
I have summarised the transcript above. I am satisfied on the balance of probabilities that the listening device used to make the recording was used in the public interest for the following reasons viewed in combination. As set out above, the transcript establishes that the conversation may touch upon ways in which voting papers were handled. Ms Hou made the recording after being present at the time of the alleged conduct set out at [5] of the affidavit of Mr Hou. I infer that she was sufficiently concerned about that behaviour to take photographs. That concern sheds some light on why she made the subsequent recording a short time later. That is, in the context of events earlier that day, I infer she considered the conversation might canvass matters relevant to events seen earlier that day and/or other events relevant to the conduct of the election.
For the above reasons, I grant the application of Mr Hyde with respect to the alleged conversation on 27 October 2022.
The recording said to be on 13 May 2022
I have set out a summary of this transcript above.
Mr Li submits that there are several matters standing in the way of satisfaction that any listening device was used in the public interest. Mr Li submits the evidence does not establish:
1.Who made the recording;
2.How it was made;
3.The circumstances or basis for making a covert recording;
4.The content (other than that it was a conversation about conduct which Mr Li submits, based upon the affidavits and exhibits, does not appear to be illegal); and
5.What anyone did to verify or corroborate anything said by Mr Li.
As to the first matter, the admissible evidence does not establish who made the recording. The evidence is only that Mr Ma has claimed he made the recording; the statements and interview of Mr Ma are not evidence of the truth of what he has said. However, that is not a matter which prevents the relevant finding. Proof of who made the recording is not a pre-requisite to a finding that the listening device was used in the public interest.
As to the second matter, as set out above, to establish that a listening device was used in the public interest does not require proof of how the recording was made. That there is a transcript establishes the conversation set out in that transcript was recorded in some way. The existence of a transcript is, in this instance, sufficient proof that a recording of a conversation was made and sufficient proof that a listening device of some sort was used.
As to the third matter, it must be accepted that there is no admissible evidence which establishes why the recording was made; the date; or the participants. However, the absence of admissible evidence about those matters does not mean that a listening device was not used in the public interest.
As to the fourth matter, since that submission was made, I have received the transcript said to be of this conversation. I have summarised its content above.
As to the fifth matter, the absence of evidence that any person verified or corroborated anything said by Mr Li is not material. As set out above, there is no reason to consider that the transcript is not at least substantially accurate. It is not my role to determine if anything asserted in the conversation is accurate. The issue for me is whether the listening device was used in the public interest.
The obligation to establish that a listening device was used in the public interest is upon Mr Hyde. The issue is more finely balanced than in the case of the conversation on 27 October 2022. The admissible evidence (i.e. – the transcript) does not establish matters such as the date; the participants; nor the election that may be the subject of the discussion. This is not to overlook that the issue is to be approached on the basis that the conversation recorded might be relevant to the petition proceedings.
In my view, to be weighed in considering whether the listening device was used in the public interest are the following matters. First, someone recorded the conversation. I am satisfied that is an unusual thing to do. It is suggestive of the person responsible for making the recording believing that a topic/s might be canvassed which should be the subject of an original record. Second, having perused the transcript said to be of a conversation on 13 May 2022, that conversation may be about how people may register and be encouraged to vote. It does not strike me that there is anything improper in that. While the issue is not whether discussions about improper conduct may have been recorded, indications to the contrary must weigh against the listening device being used in the public interest. Care must be taken not to treat every conversation about matters touching upon an election to mean that any listening device used to record such a conversation was used in the public interest. Third, as set about above, the conversation recorded is to be treated as one which might be relevant to the petition proceedings.
In the case of this conversation, it is the first and third matters above which weigh most in favour of the listening device being used in the public interest. Considering all three matters together, I am not satisfied on the balance of probabilities that the listening device was used in the public interest. The power to make an order under Division 2 of the SD Act is not enlivened.
The recording said to be on 10 November 2022
In opposing the application of Mr Hyde, Mr Li submits that:
1.There is no identification of the conversation other than a ‘confusing statement attributed to Mr Wang that he filled out 10 forms’;
2.The identity of Mr Wang’s girlfriend is not identified; and
3.Nothing of substance is identified in relation to the election.
As to the first of the matters above, Mr Li directs attention to the interview of Mr Ma on 8 December 2022. In that interview, it might be that Mr Ma expresses some confusion and/or uncertainty about whether the completion of any form/s by Mr Wang might have involved improper conduct and about whether any form/s allegedly completed were registration forms or voting forms. In my view, for the purposes of the application before me, precisely what forms were alleged to have been completed is not critical. The critical issue is whether the listening device was used in the public interest. The issue is also not the accuracy of the memory of Mr Ma about what was said in a conversation before the interview (i.e. – before 8 December 2022) nor is the issue his opinion about what was being discussed.
As to the second of the matters above, that is not material to whether the listening device was used in the public interest.
As to the third matter, that submission was made before I had received the transcript said to be of this conversation. I have set out a summary of the transcript above.
The obligation is upon My Hyde to establish that the listening device was used in the public interest. The issue is again more finely balanced than in the case of the conversation on 27 October 2022. As with the conversation on 13 May 2022, but not overlooking that the conversation might be relevant to the petition proceedings, the admissible evidence (i.e. – the transcript) does not establish the date; the participants; nor the election the subject of the conversation.
For the following reasons viewed together, I am nonetheless satisfied on the balance of probabilities that the listening device was used in the public interest. First, someone recorded the conversation. As with the conduct said to have occurred on 13 May 2022, that is an unusual thing to do. It is suggestive of the person responsible believing a topic/s might be canvassed which should be the subject of an original record. Second, having perused the transcript said to be of the conversation on 10 November 2022, that conversation involves discussion that may touch upon, at least, the handling of registration papers and such papers being signed by a person other than the person being registered. That is an important distinction with the conversation said to be on 13 May 2022. Third, this conversation is to be treated as one which might be relevant to the Petition proceedings.
Section 11(2) of the SD Act
Section 11(2) of the SD Act provides:
(2)An order under this section may—
(a)     specify the information or material the subject of the order; and
(b)     specify the manner in which, and to whom, the specified information or material may be used, communicated or published; and
(c)     contain—
(i)conditions and limitations; and
(ii)any other matter as the judge thinks fit.
Having reached the view the listening devices used on 27 October 2022 and said to be used on 10 November 2022 were used in the public interest, it is open to me to limit the material that may be used. To the extent the recordings and transcripts might contain material beyond matters touching upon processes of potential relevance to an election, that will be addressed by orders limiting the use of the material to the proceedings in the Court of Disputed Returns.
Orders
As set out above, an aspect of the orders sought by Mr Hyde is that he may be provided with not only the recordings and associated transcripts but also ‘information relating to them’ and that he may use ‘any material derived from and relating to’ the recordings and transcripts in the Court of Disputed Returns proceedings. Those aspects of the application of Mr Hyde were probably intended to be limited to material that might be derived in the future from any recording that may be provided or used, but that is not the only interpretation of the way the application is expressed. In so far as Mr Hyde may be seeking any information or material already derived, beyond the transcripts and recordings that were referenced in this application, he did not direct any submission to that aspect of his application. For example, Mr Hyde did not suggest what any additional information or material beyond the recordings and respective transcripts might exist. For those reasons, I decline to make orders in those terms. Nonetheless, I will make orders permitting the use, communication and publication of material derived in the future from the recordings or transcripts which are the subject of the orders below. This will enable the use, communication and publication of anything the parties derive from what is provided (e.g. – fresh translations and/or transcripts).
I make the following orders:
1.The Electoral Commissioner of South Australia may provide to Mr Alexander Hyde and Mr Jing Li, and their respective solicitors and counsel, copies of the digital file which is document 7218 of the List of Documents Revision 2 (FDN 48) filed in Court of Disputed Returns bearing action number CIV-22-013997 (Court of Disputed Returns proceedings) and the transcript prepared of same, which is document 7219 of the List of Documents Revision 2 (FDN 48) filed in the Court of Disputed Returns proceedings.
2.Mr Alexander Hyde and Mr Jing Li, and their respective solicitors and counsel, may use and communicate the digital file and transcript set out in order 1 above, and anything they derive from that file and transcript, in the Court of Disputed Returns proceedings and only for the purpose of those proceedings.
3.Mr Alexander Hyde may provide to Mr Jing Li and his solicitors and counsel, a copy of the digital file and transcript referred to in [7] and [8] of his affidavit dated 9 June 2023 (FDN 2 in CIV-23-006364).
4.Mr Alexander Hyde and Mr Jing Li, and their respective solicitors and counsel, may use and communicate the digital file and transcript set out in order 3 above, and anything they derive from that file and transcript, in the Court of Disputed Returns proceedings and only for the purpose of those proceedings.
5.For the avoidance of doubt, the Court of Disputed Returns may use, communicate and publish the digital files and transcripts set out in orders 1 and 3 above, and anything derived in the future from those files and transcripts, for the purpose of the hearing and determination of the Court of Disputed Returns proceedings, including by reference to, and inclusion of details of, the same in any published reasons for judgment.
Admissibility of any recording in the Court of Disputed Returns
It has not been my role to consider whether any recording or transcript the subject of the above orders may be admissible in the Court of Disputed Returns proceedings. If a recording or transcript is sought to be used in those proceedings, issues of admissibility in those proceedings are for the Judge hearing those proceedings. Further, my observations about what may be discussed in any recording the subject of the above orders are obviously not binding upon the Judge hearing those proceedings. Different transcripts may be admitted. Even if the transcripts are the same, that Judge will need to form their own view assisted by matters such as evidence not before me and the submissions of counsel.

[2023] SASC 146

12 October 2023