Kawada & Kawada
[2011] FamCA 659
•19 July 2011
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(Interception and Access) Act 1979 (Cth) s 7, s 63 Telephonic Communications (Interception) Act 1960 (Cth) (repealed) |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 Odgers, S, Uniform Evidence Law, 8th ed, Thompson Reuters. Commonwealth, Parliamentary Debates, House of Representatives, 15 December 1993, 4087 (Mr Kerr, Minister for Justice) |
| 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
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).
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
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 illegal pursuant to the Telecommunications (Interception and Access) Act 1979 (Cth) (the Telecommunications Act), to be set down as a short cause at 10 am on Thursday 10 March 2011.
On 10 March 2011, Mr Page of Senior Counsel, for the wife, made admission that by reason of the wife’s recording of Skype conversations between the husband and the second respondent T Kawada the wife offended s 7 of the Telecommunications Act: see notation 1 to the orders made on 10 March 2011.
An issue for determination remained as to admissibility of the transcripts of the conversations, namely whether s 63 of the Telecommunications Act had effect that s 138 of the Evidence Act 1995 (Cth) (the Evidence Act) has no application: see notation 2 to the orders made on 10 March 2011.
Accordingly, on that date I ordered that written submissions be filed and served by 4pm on 27 June 2011 in anticipation of that issue being determined at the outset of the trial scheduled to commence on Monday 4 July 2011. Mr Page’s written submissions duly were filed on 27 June 2011.
Section 7(1) of the Telecommunications Act provides relevantly:
7 Telecommunications not to be intercepted
(1)A person shall not:
(a)intercept;
…
a communication passing over a telecommunications system.
Section 63 of the Telecommunications Act provides:
63 No dealing in intercepted information or interception warrant information
(1)Subject to this Part, a person shall not, after the commencement of this Part:
(a)communicate to another person, make use of, or make a record of; or
(b)give in evidence in a proceeding;
lawfully intercepted information or information obtained by intercepting a communication in contravention of subsection 7(1).
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.
The extrinsic materials thus include the explanatory memorandum relating to a Bill, the second reading speech by the Minister who moved the Bill, any other official record of debates in relation to the Bill and any Law Reform Commission report.
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.
Because the particular matter raised appears not previously to have been considered, it is desirable to put the Telecommunications Act, and in particular s 63, in historical context.
Before doing so it is necessary to refer to the authorities concerning context: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; (1997) HCA 2 at 408:
… [T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.;
and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. (footnotes omitted)
The genesis of the Telecommunications Act is found in observations by the High Court in Miller v Miller (1978) 141 CLR 269 in relation to the Telephonic Communications (Interception) Act 1960 (Cth), the predecessor Act to the Telecommunications Act, making clear that the 1960 Act evinced a clear intention to be “the whole law on the matter of telephonic interception”: 276 per Barwick CJ.
The 1960 Act prohibited telephonic interception but did not mandatorily exclude intercepted communications from admissibility in evidence, such that Gibbs CJ concluded (obiter) at 277 that in relation to admissibility s 5(3) of the 1960 Act did not render the intercepted communications inadmissible such that courts had a discretion to exclude them as unlawfully obtained on the common law principles in Bunning v Cross (1978) 19 ALR 64 at 657 ff.
In 1985, however, in Hilton v Wells (1985) 157 CLR 57, the High Court was required expressly to rule whether the 1979 Act made inadmissible intercepted telephone communications. At that stage, the 1979 Act did not include mandatory exclusion. The High Court ruled in Hilton v Wells that the answer was ‘No’, that is, that the 1979 Act did not mandatorily prohibit the admissibility of intercepted communications.
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)
Mr Spender, the Honourable Member for North Sydney in Opposition, spoke to the contrary in favour of a trial judge having a discretion to admit illegally obtained evidence in the interests of justice, urging that admissibility should be governed by the common law. Mr McGauran, the Honourable Member for Gippsland in Opposition, spoke in favour of retention of judicial discretion in line with the Bunning v Cross principles: see Commonwealth, Parliamentary Debates, House of Representatives, 1 June 1987, 3729 (Mr Spender) and 3736 (Mr McGauran).
Despite these criticisms by the Opposition the Bill was passed into law on 5 June 1987. The additions to the Act concerning admissibility included s 63.
I turn now to the later Act, the Evidence Act 1995 (Cth), s 138 of which provides as I have previously set out.
Mr Kerr, Minister for Justice, in moving the Evidence Bill 1993 said in relation to clause 8 (as I have earlier observed):
Special evidentiary provisions in other Commonwealth laws and ACT laws are preserved by the bill.
Indeed, given the strength of the debate in relation to the 1987 amendments to the Telecommunications Act it would be expected that if s 63 were not intended by Parliament to remain in force upon introduction of the Evidence Act such would have been done expressly and unequivocally. In this context, I would refer again to the observations of Finn J in Schofield (above) at 285-6.
I would conclude therefore that the discretion in s 138 applies unless by other Commonwealth legislation evidence already mandatorily is excluded as is the case with s 63.
There can be no conclusion therefore that s 63 of the earlier Act was impliedly repealed by s 138 of the later Act, without a word of comment in the Parliamentary debates, especially having regard to the strength of debate in relation to the 1987 amendments to the earlier Act. On the contrary, s 8 of the later Act makes the position clear.
Finally, Mr Page submitted that it is a tenet of family law that there be full and frank disclosure, such that Parliament intended s 138 to operate in this jurisdiction. Plainly, s 138 does operate in this jurisdiction, it being a federal court. However, it operates according to the enactment in which it appears, that is, subject to s 8.
Having come to these conclusions it is not necessary that I deal with more particularity with other submissions of Mr Page, the effect of which I have already summarised.
My ruling thus is that all and any transcripts or any evidence of the intercepted Skype telecommunications are inadmissible in this trial.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 19 July 2011.
Associate:
Date: 23 August 2011
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