Kawada & Kawada

Case [2011] FamCA 659

FAMILY COURT OF AUSTRALIA

KAWADA & KAWADA AND ORS [2011] FamCA 659
FAMILY LAW – EVIDENCE – Admissibility of evidence – Recorded Skype conversations – Recordings admitted by wife to be an offence against s 7 Telecommunications (Interception and Access) Act 1979 (Cth) – Pursuant to s 63 of that Act recordings not to be given in evidence in a proceeding – Whether s 138 Evidence Act 1995 (Cth) applies for exercise of discretion – Held s 8 Evidence Act 1995 (Cth) has effect that s 138 does not effect the operation of s 63
Acts Interpretation Act 1901 (Cth) s 15AB
Evidence Act 1995 (Cth) s 8, s 138
Telecommunications (Interception and Access) Act 1979 (Cth) s 7, s 63
Telephonic Communications (Interception) Act 1960 (Cth) (repealed)

Bunning v Cross (1978) 19 ALR 64
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; (1997) HCA 2
Epeabaka v Minister for Immigration & Multicultural Affairs (1997) 150 ALR 397
Hilton v Wells (1985) 157 CLR 57
Miller v Miller (1978) 141 CLR 269
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Re Schofield;Ex parteRangott v P&B Barron Pty Ltd (1997) 72 FCR 280

Odgers, S, Uniform Evidence Law, 8th ed, Thompson Reuters.

Commonwealth, Parliamentary Debates, House of Representatives, 15 December 1993, 4087 (Mr Kerr, Minister for Justice)
Commonwealth, Parliamentary Debates, House of Representatives, 30 April 1987, 2306 (Mr Bowen, Attorney-General)
Commonwealth, Parliamentary Debates, House of Representatives, 1 June 1987, 3736 (Mr McGauran, Member for Gippsland)
Commonwealth, Parliamentary Debates, House of Representatives, 1 June 1987, 3729 (Mr Spender, Member for North Sydney)
APPLICANT: Ms Kawada
FIRST RESPONDENT: Mr Kawada
SECOND RESPONDENTS: T Kawada and M Kawada
FILE NUMBER: BRC 9952 of 2009
DATE DELIVERED: 19 July 2011
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: O’Reilly J
HEARING DATE: 19 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page SC
SOLICITOR FOR THE APPLICANT:

Mr Jones

Jones Mitchell Lawyers
THE FIRST RESPONDENT: In person
THE SECOND RESPONDENTS: In person via telelink in Japan

Ruling

  1. Section 8 of the Evidence Act 1995 (Cth) operates so that section 63 of the Telecommunications (Interception and Access) Act 1979 (Cth) prevails over section 138 of the Evidence Act 1995 (Cth).

  2. All and any transcripts of and any evidence of the intercepted Skype communications between Mr Kawada and T Kawada are inadmissible in this trial.

IT IS NOTED that publication of this judgment under the pseudonym Kawada & Kawada is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9952  of 2009

Ms Kawada

Applicant

And

Mr Kawada

First Respondent

And

T Kawada and M Kawada
Second Respondents

REASONS FOR JUDGMENT

  1. On 18 November 2010, I ordered that there be preliminary determination of the question whether tape recordings of telephone communications between the husband and the second respondent T Kawada, on which the wife seeks to rely, are…

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Kawada & Kawada [2011] FamCA 659
Case
[2011] FamCA 659
Decision Date

CaseChat Overview and Summary

The case of Kawada & Kawada concerned the admissibility of intercepted communications in court proceedings. The central dispute revolved around whether evidence obtained in contravention of the *Telecommunications Act 1979* (Cth) could be admitted under the discretion provided by section 138 of the *Evidence Act 1995* (Cth), or if the mandatory exclusion provisions of section 63 of the *Telecommunications Act* prevailed. The court was required to determine the interplay between these two Commonwealth statutes.

The primary legal issue before the court was whether section 8 of the *Evidence Act* preserved the operation of section 63 of the *Telecommunications Act*, thereby rendering the discretion under section 138 of the *Evidence Act* inapplicable to evidence obtained in contravention of the *Telecommunications Act*. This involved interpreting the relationship between a general evidentiary statute and a specific statutory regime governing telecommunications interception.

The court reasoned that section 8(1) of the *Evidence Act* explicitly states that the *Evidence Act* does not affect the operation of other Acts. Applying this provision, the court found that section 63 of the *Telecommunications Act*, which mandates the exclusion of improperly obtained evidence, was not affected by the *Evidence Act* and therefore prevailed. This conclusion was supported by extrinsic materials, including explanatory memoranda and parliamentary debates, which indicated an intention to preserve the operation of specific Commonwealth laws, such as those relating to telecommunications interception. The court noted that section 63 and section 138 were directly inconsistent, with the former providing mandatory exclusion and the latter discretionary inclusion, and that section 8 dictated that the former would prevail.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 138 of the Evidence Act provides: 138Discretion to exclude improperly or illegally obtained evidence (1)Evidence that was obtained: (a)improperly or in contravention of an Australian law; or (b)in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. …(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a)the probative value of the evidence; and (b)the importance of the evidence in the proceeding; and (c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and (d)the gravity of the impropriety or contravention; and (e)whether the impropriety or contravention was deliberate or reckless; and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. Mr Page’s written submissions, pars 1-14, supported by authority, may be summarised as follows:·the applicable maxim is that later Acts repeal earlier inconsistent Acts·there is a strong presumption that the legislature does not intend to contradict itself but intends earlier and later Acts to operate together·there is no inconsistency between s 63 of the Telecommunications Act and s 138 of the Evidence Act·s 138 operates so that I have a discretion to admit the transcripts of the intercepted Skye communications despite the concession that the wife’s recordings offended s 7(1) of the Telecommunications Act In my view the submissions fail. Section 8 of the Evidence Act provides: 8Operation of other Acts etc. (1)This Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903. The plain or literal and ordinary meaning thus is that s 63 of the Telecommunications Act is not affected and prevails. To confirm this, it is useful to refer to the extrinsic materials, permitted by s 15AB of the Acts Interpretation Act 1901 (Cth), which provides for the use of extrinsic material in the interpretation of an Act: 15AB Use of extrinsic material in the interpretation of an Act (1)Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or (b)to determine the meaning of the provision when: (i)the provision is ambiguous or obscure; or (ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable. (2)Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes: ....(b)any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of the Parliament before the time when the provision was enacted;…(e)any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;(f)the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House;…(h)any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament.

Decision

Reasons for decision

However, importantly, Hilton v Wells then led directly to the Telecommunications Interception Bill 1987, Part 7 of which included a clause which became the present s 63. The Attorney-General Mr Bowen put to the House supporting the Bill that (Commonwealth, Parliamentary Debates, House of Representatives, 30 April 1987, 2306):The important matter of regulating the use and communication of intercepted information is at present dealt with in section 7 of the Act. Extensive amendments of the present provisions are necessary as a result of the decision of the High Court of Australia in Hilton v. Wells, at page 245 of Volume 58 of the Australian Law Reports, to the effect that the present provisions relating to the use and communication of intercepted information do not cover illegally obtained information and do not make such information inadmissible in any court proceedings. … For this reason, the Bill provides for a new Part VII to be inserted in the legislation, which provides stringent controls on the communication of information lawfully obtained by telecommunications interception… The Stewart Royal Commission has recommended that the Act should be amended to make it an offence to possess, communicate, divulge or record unlawfully intercepted information. The Government has accepted this recommendation. However, the Government does not accept that such information should be able to be used except for the purpose of establishing a contravention of the Act. Nor does the Government accept that the admissibility of unlawfully intercepted information should be determined by the common law. The Bill provides that unlawfully intercepted information may be admissible only for the purposes of establishing a contravention of the Telecommunications (Interception) Act. The Bill amends the present section 7 and includes new provisions dealing separately with the prohibition of unauthorised interceptions, the regulation of the use and communication of intercepted information and the admissibility of such information in evidence in proceedings. The most important effects of the new provisions are as follows: Firstly, it will continue to be an offence to intercept communications passing over a telecommunications system except under a warrant or as otherwise authorised by the Act; secondly, it will be an offence to use, record or communicate to a person or a court or tribunal material obtained in contravention of the Act, except for the purpose of establishing that contravention; thirdly, it will be an offence to use, record or communicate to a person or a court or tribunal material that has been lawfully obtained, except in accordance with the Act; fourthly, communications of lawfully obtained material will be permitted between the Australian Federal Police, State and Territory police forces, the National Crime Authority, the State Drug Crime Commission and the Australian Security Intelligence Organisation, where the material is relevant to their functions; and, fifthly, it will be possible to give lawfully obtained information in evidence only in the proceedings specified in proposed section 5b. Information obtained in contravention of the Act will be inadmissible in all proceedings except to establish the contravention. This exclusionary rule is, however, subject to a discretion in the court to admit information where the contravention is due to an insubstantial defect or irregularity in cases where a warrant or purported warrant has been obtained. It is not intended to prejudice proceedings that have been commenced before the legislation comes into operation. Accordingly, the Bill does not prevent intercepted material from being admitted in evidence in proceedings commenced before that date. (emphasis added)

Ratio Decidendi

Legal Principle Established

The explanatory memorandum to the Bill includes the following in relation to clause 8, which became s 8.Clause 8: Operation of other Acts etc.18.This clause provides for certain other laws not to be affected by the Act. These other laws are – · other Commonwealth Acts (except sections 68, 79, 80 and 80A of the Judiciary Act 1903)… The Honourable Mr Kerr (Minister for Justice) in moving on 15 December 1993 that the Bill be read a second time said (Commonwealth, Parliamentary Debates, House of Representatives, 15 December 1993, 4087:Existing common law, and state and territory laws, will have effect subject to inconsistency with the bill. However, because the bill is comprehensive, the scope for operation of these laws will be extremely limited. Special evidentiary provisions in other Commonwealth laws and ACT laws are preserved by the bill. It is thus that the commentary in Odgers, S, Uniform Evidence Law, 8th ed, Thompson Reuters at [1.1.900] offers the following in relation to s 8 of the Evidence Act:It is suggested that the Commonwealth provision [s 8 Evidence Act] creates a hierarchy among Commonwealth laws:1.The provisions of other Commonwealth laws (except ss 68, 79, 80 and 80A of the Judiciary Act 1903), and of regulations which were in force on the commencement of this Act (and until they are amended) prevail over this Act.2.This Act prevails over ss 68, 79, 80 and 80A of the Judiciary Act 1903, but they continue to operate subject to any inconsistency with this Act. It is paragraph 2 of this extract, I would suggest, that explains the Minister’s words in relation to “inconsistency” in the passage in the second reading speech extracted above. In Epeabaka v Minister for Immigration & Multicultural Affairs (1997) 150 ALR 397 at 409 Finkelstein J said at first instance: … Section 8(1) is one of a number of provisions in Pt 1.2 which are concerned with the application of the Evidence Act. The subsection provides that the Evidence Act does not affect the operation of the provisions of any other Act. …The scope of operation of s 8(1) is not clear. There will be no difficulty in applying the sub-section in the case where a provision of the Evidence Act is directly inconsistent with the provision of some other enactment. In that event the provision of that other enactment will prevail. … On appeal to the Full Court: [1999] FCA 1 there was no criticism of his Honour’s observations in the part extracted. See also Re Schofield;Ex parteRangott v P&B Barron Pty Ltd (1997) 72 FCR 280 at 285-6 in which Finn J described the Evidence Act as a “statute of general application” not to be construed as displacing a specific regime relating to transcripts obtained under an earlier specific Act. Section 63 of the Telecommunications Act and s 138 of the Evidence Act are directly inconsistent because s 63 provides a mandatory exclusion of the ill‑gotten evidence and s 138 provides a discretionary inclusion of the ill-gotten evidence. However, s 8 makes clear that s 63 prevails.