Neame & Neame (No 2)

[2021] FCCA 1665

FEDERAL CIRCUIT COURT OF AUSTRALIA

Neame & Neame (No 2) [2021] FCCA 1665

File number(s):

PAC 3201 of 2021

Judgment of:

JUDGE MYERS

Date of judgment:

2 July 2021

Catchwords:

FAMILY LAW – practice and procedure – admissibility of evidence – e recording obtained without permission – evidence improperly obtained

Legislation:

Family Law Act 1975 (Cth), s 60CC

Surveillance Devices Act 2007 (Cth), s 7

Evidence Act 1995 (Cth), s 138

Cases cited:

Parker v Comptroller–General of Customs [2009] HCA 7

Other:

International Covenant on Civil and Political Rights, Article 17

Office of the United Nations High Commissioner for Human Rights published General Comment Number 16

Hansard House of Representatives No.18 Second Reading Speech, Telephonic Communication (Interception) Bill 1960, 5 May 1960 at 1423

Number of paragraphs:

26

Date of hearing:

2 July 2021

Place:

Parramatta

Counsel for the Respondent:

Mr Todd

Counsel for the Applicant:

Ms Lawson

ORDERS

PAC 3201 of 2021

BETWEEN:

MR NEAME

Applicant

AND:

MS NEAME

Respondent

ORDER MADE BY:	JUDGE MYERS
DATE OF ORDER:	2 JULY 2021

THE COURT ORDERS THAT:

1.The tender of the two recordings made Boxing Day 2020 and Easter 2021 sought to be placed into evidence by the father is refused.

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Neame & Neame (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE MYERS

1. This is an interlocutory ex tempore decision in the matter of Neame & Neame where the Applicant Father today seeks to tender into evidence recordings of two interactions that took place on Boxing Day 2020 and Easter 2021.

2. There is no doubt that the video and audio recordings of the interactions between the mother and father were recorded without the permission of the mother.  The question is whether the Court ought to properly allow or exclude the recordings.

3. Section 7 of the Surveillance Devices Act 2007 (Cth) (‘the Surveillance Devices Act’) provides for a prohibition on installation, use and maintenance of listening devices with several exceptions.

4. Section 7 provides:

   (1)A person must not knowingly install, use or cause to be used or maintain a listening device—

   (a)to overhear, record, monitor or listen to a private conversation to which the person is not a party, or

   (b)to record a private conversation to which the person is a party.

   Maximum penalty--500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

   (2)Subsection (1) does not apply to the following—

   (a)the installation, use or maintenance of a listening device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation,

   (b)the installation, use or maintenance of a listening device in accordance with the Telecommunications (Interception and Access) Act 1979, or any other law, of the Commonwealth,

   (c)the unintentional hearing of a private conversation by means of a listening device,

   (d)the use of a listening device to record a refusal to consent to the recording of an interview by a member of the NSW Police Force in connection with the commission of an offence by a person suspected of having committed the offence,

   (e)the use of a listening device and any enhancement equipment in relation to the device solely for the purposes of the location and retrieval of the device or equipment,

   (f)the use of a listening device, being a device integrated into a Taser issued to a member of the NSW Police Force, to record the operation of the Taser and the circumstances surrounding its operation,

   (g)the use, in accordance with section 50A, of body-worn video by a police officer.

   (3)Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if—

   (a)all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or

   (b)a principal party to the conversation consents to the listening device being so used and the recording of the conversation—

   (i)is reasonably necessary for the protection of the lawful interests of that principal party, or

   (ii)is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

   (4)Subsection (1) does not apply to the use of a listening device to record, monitor or listen to a private conversation if—

   (a)a party to the private conversation is a participant in an authorised operation and, in the case of a participant who is a law enforcement officer, is using an assumed name or assumed identity, and

   (b)the person using the listening device is that participant or another participant in that authorised operation.

5. Under the Surveillance Devices Act a, ‘listening device’ means any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear.

6. It is clear that the device used by the father to record the mother falls within the definition of a listening device.

7. This is a matter whether the father knowingly used a listening device to record a private conversation to which the father was a party.  The exceptions found at subsection 2 do not apply to the father’s actions. 

8. The exceptions found at subs 3 are explored.  The Court notes that 3(a) does not apply where the mother did not expressly or impliedly consent to the listening device being used.

9. Subparagraph 3(b) refers to a principal party. The Surveillance Devices Act defines ‘principal party’, in relation to a private conversation, as meaning a person by or to whom words are spoken in the course of the conversation. In this case the father can be classed as a ‘principal party’.

10. The Court accepts that the father as the principal party consented to the listening device being used and the recording of the conversation.  What the Court does not accept is that at the time of the recording it was reasonably necessary for the protection of the lawful interest of the father.  It was in the view of the Court opportunistic and a deceitful recording made by the father during the climatic stages of the breakdown of the parties’ relationship where it is an agreed fact issues such as infidelity had come to light. 

11. Section 138 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) provides that the Court has a discretion to exclude improperly or illegally obtained evidence and is set out below:

    Section 138 Exclusion of 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.

    (2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

    (a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

    (b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

    (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.

12. In determining the issue before the Court, it is important to first have regard to whether the evidence had been improperly or illegally obtained, and if improperly or illegally obtained, then consider whether the evidence ought to be admitted.  This approach found favour in the decision of Parker v Comptroller–General of Customs[1] in which French CJ discussed the interpretation and then approach to be taken by the Court when looking at whether evidence should be excluded pursuant to the provisions of s 138 of the Evidence Act and held:

    [1] [2009] HCA 7 at 26.

    The term ‘Australian law’ is defined in the Dictionary to the Evidence Act as a ‘law of the Commonwealth, a State or a Territory’. The word ‘law’ is defined in cl 9 of Pt 2 of the Dictionary:

    (1)A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place.

    (2)A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia.

    There is no definition of ‘impropriety’ or ‘contravention’ in the Evidence Act.

    Section 138 was one of the provisions of what became the Evidence Act 1995 (Cth) and the New South Wales Evidence Act recommended by the Law Reform Commission in its Report No 38, published in 1987. The proposed cl 119, as it was numbered in the draft Act, was explained by the Commission[22]:

    This clause provides a discretionary exclusion for evidence obtained improperly, unlawfully or in consequence of an impropriety or breach of the law. It applies in both civil and criminal trials. It reflects, with some modifications, the present exclusionary discretion known as the rule in Bunning v Cross. The main difference is the placing of the onus of proof on the party seeking to have the illegally or improperly obtained evidence admitted.

    The party seeking to exclude the evidence has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the Court that it should be admitted. There is thus a two stage process[23]. The party seeking admission of the evidence has the burden of proof of facts relevant to matters weighing in favour of admission. It also has the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained.

    The meanings to be accorded to the terms ‘improperly’, ‘impropriety’ and ‘contravention’ in s 138 were not illuminated by the Law Reform Commission report. The relevant ordinary meanings of ‘improper’ include ‘not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong’[24]. ‘Contravention’ refers to ‘[t]he action of contravening or going counter to; violation, infringement, transgression’[25].

    Without essaying an exhaustive definition, the core meaning of ‘contravention’ involves disobedience of a command expressed in a rule of law which may be statutory or non-statutory. It involves doing that which is forbidden by law or failing to do that which is required by law to be done. Mere failure to satisfy a condition necessary for the exercise of a statutory power is not a contravention. Nor would such a failure readily be characterised as ‘impropriety’ although that word does cover a wider range of conduct than the word ‘contravention’.

    [Footnotes omitted]

13. When turning to the issue of whether the evidence was improperly or illegally obtained, the Court finds that the recording by the father breached the provisions of s 7 of the Surveillance Devices Act and that those subsections that provide exception to the prohibition at subsections 2, 3 and 4 are not available to the father. Section 7 of the Surveillance Devices Act creates an offence for an individual that is punishable by a maximum penalty for individuals of 100 penalty units or 5 years imprisonment or both.

14. The Court must consider the probative value of the evidence contained in the recordings. That is, is the evidence sufficiently useful to prove something important in the case? The Court must also consider the importance of the evidence in the proceedings and the nature of the relevant offence, cause of action or defence, and the nature of the subject matter of the proceedings. Having listened to the recordings, the evidence is not particularly probative.  It is evidence of a married couple engaged in a verbal argument at the end of their relationship where the mother is struggling to cope. The Court cannot make findings from the recordings that, for instance, the mother was intoxicated or had threatened to shake one of the children or place then at unacceptable risk. It would be dangerous for the Court to rely on the recordings for the purpose of drawing any inferences about the nature of the parties’ relationship where the father was controlled in circumstances where he knew he was recording the conversation. The suggestion by counsel for the father that the recordings are demonstrative of the father being a victim of family violence and the mother being a perpetrator fall flat given the father’s capacity to control both himself while attempting to put words into the mouth of the mother of her alleged prior statements.

15. When considering the importance of the evidence, it must be said that the recordings do not place the Court in any better position in determining what is in the best interests of the children having regard to s 60CC of the Family Law Act 1975 (Cth) where it would be unsafe for the Court to make findings based on the clandestine recordings of the mother by the father. The recordings provides an insight into the high level of distress and dysfunction taking place between a married couple where infidelity has come to light and the mother is struggling to cope. Its importance is limited if not lacking.

16. The gravity of the impropriety is significant. The father’s interactions with the mother were deliberate and sought to place him in the best light possible. The father’s actions where both calculated and, in the view of the Court, a betrayal of trust. The gravity of the father’s actions recording the mother is significant. The father acted in a deliberate manner when he recorded the mother.

17. Section 138(3)(f) of the Evidence Act requires a consideration of 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.  The International Covenant on Civil and Political Rights was conceived into being on 19 December 1966 and entered into force in Australia (except Article 41) on 13 November 1980.

18. Article 17 of the International Covenant on Civil and Political Rights provides:

    (4)No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation; and

    (5)That everyone has the right to the protection of the law against such interference or attacks.

19. In 1988, the Office of the United Nations High Commissioner for Human Rights published General Comment Number 16, for the purposes of clarifying how the United Nations interprets Article 17.  The Court notes that General Comment Number 16 provides that Article 17 should protect a nation’s citizens against all interferences and attacks on privacy, family, home or correspondence, “whether they emanate from State authorities or from natural or legal persons”.  In consequence, all member states are required “to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of this right”.  The Court further notes that “state parties are under a duty themselves not to engage in interferences inconsistent with Article 17 of the Covenant and to provide the legislative framework prohibiting such acts by natural or legal persons”.

20. Section 7 of the Surveillance Devices Act provides a protection of the type required by Article 17 of the International Covenant on Civil and Political Rights.  The Court finds that the illegal recording of the private conversation by the father is an impropriety or contravention contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights.  While the Court does not preclude the court from allowing such evidence on this ground, it is of some weight in the argument against the admission of the recordings into evidence.

21. There is no suggestion that other proceedings are likely to be taken in relation to the father’s contravention of s 7 of the Surveillance Devices Act.

22. The evidence contained in the recordings has been deposed to by the parties in the proceedings in their affidavits.  In that regard there is no difficulty obtaining the evidence without impropriety or contraventions.

23. The Court lastly turns to the floodgate argument.  This is a jurisdiction where parties are highly emotionally charged.  Proceedings in the Court are most usually commenced following the acrimonious breakdown of parties’ relationships.  This Court should do nothing that might encourage parties in the middle of the disintegration of their relationship to illegally record conversations for use in proceedings under that Family Law Act 1975.

24. Sir Garfield Barwick, as he was then, the Attorney-General of Australia delivering a second reading speech introducing a Bill preventing police from covertly recording telephone conversations, made comments in respect of private conversations that are salient in these proceedings where he said:

    “Mr Speaker, eavesdropping is abhorrent to us as a people. Not one of us, I am sure, would fail to recoil from the thought that a citizen's privacy could lightly be invaded. Indeed, many citizens no doubt feel that far too many intrusions into our privacy are permitted to be made in these times with complete impunity. Many things which might fairly be regarded as personal and of no public consequence appear in print without the citizen's permission and without his encouragement, but in particular all of us, I think, dislike the feeling that we may be overheard and that what we wish to say may reach ears for which we did not intend the expression of our thought. Much of our normal life depends on the confidence we can repose in those to whom we lay bare our sentiments and opinions, with and through whom we wish to communicate.”[2]

    [2]           Hansard House of Representatives No.18 Second Reading Speech, Telephonic Communication (Interception) Bill 1960, 5 May 1960 at 1423.

1. The Court finds that the desirability of admitting the evidence is outweighed by the undesirability of admitting the evidence and as such the evidence must not be admitted. 

2. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers.

Associate: 

Dated:       26 August 2021