NS v Hotchkis
[2019] ACTSC 309
•8 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | NS v Hotchkis |
Citation: | [2019] ACTSC 309 |
Hearing Date: | 19 August 2019 |
DecisionDate: | 8 November 2019 |
Before: | Burns J |
Decision: | See [40]-[42] |
Catchwords: | CRIMINAL LAW – Magistrates Court Appeal – hearing in Magistrates Court – finding of guilt – appeal from finding of guilt –whether the Magistrate erred in ruling that the audio recording made by the complainant was admissible – consideration of the Listening Devices Act 1992 (ACT) and the Evidence Act 2011 (ACT) |
Legislation Cited: | Crimes Act 1900 (ACT) s 26 Evidence Act 2011 (ACT) s 138 Magistrates Court Act 1930 (ACT) Pt 3.10 |
Cases Cited: | Acuthan v Coates (1986) 6 NSWLR 472 Dong v Song [2018] ACTSC 82; 331 FLR 326 Violi v Berrivale Orchards Ltd [2000] FCA 797; 99 FCR 580 |
Parties: | NS (Appellant) Chris Raymond Hotchkis (Respondent) |
Representation: | Counsel E Priestley (Appellant) D Perks (Respondent) |
| Solicitors McKenna Taylor (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 54 of 2018 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Special Magistrate Hunter Date of Decision: 6 August 2018 Case Title: Hotchkis v NS Court File Number: CC2018/2159 |
BURNS J
On 1 February 2018, the appellant was charged in the Magistrates Court with the following offences:
(a)a charge contrary to s 26 of the Crimes Act 1900 (ACT) alleging that on 31 January 2018 he did assault FS; and
(b)a charge contrary to s 43(2) of the Family Violence Act 2016 (ACT) alleging that on 31 January 2018, being a person against whom a family violence order was made and who had been personally served with a copy of the family violence order, he engaged in conduct that contravened that family violence order.
To these charges the appellant entered pleas of not guilty, and they proceeded to a contested hearing in the Magistrates Court. On 6 August 2018, a Magistrate found each of the offences proved, and on 10 October 2018 formal convictions and penalties were imposed. As a consequence of the Magistrate finding the offences proved, the appellant came to be in breach of an earlier Good Behaviour Order, and he was resentenced with regard to that matter.
The allegation with regard to the charge of assault was that the appellant kicked the complainant’s leg during an argument about a dog. At that time the appellant and complainant were married and living together. The complainant had obtained a family violence order against the appellant, and it was alleged that during the argument he breached the order by causing or threatening to cause injury to the complainant, by engaging in offensive or harassing behaviour towards the complainant, or by harassing, threatening or intimidating her.
The appellant has appealed from the findings of guilt made by the Magistrate. He has not appealed from the penalties imposed. If the present appeal were to be successful, it would inevitably mean that the finding that the appellant was in breach of the prior Good Behaviour Order would also have to be overturned. The grounds of appeal are:
(a) the learned magistrate erred in ruling that the audio recording made by the complainant was admissible pursuant to section 5(2)(d)-(e) of the Listening Devices Act 1992 (ACT); and
(b) the convictions are unreasonable and cannot be supported having regard to the evidence.
Relevant principles
This Court has jurisdiction pursuant to Part 3.10 of the Magistrates Court Act 1930 (ACT) to hear an appeal against conviction for an offence heard summarily. An appeal of this nature is a rehearing on the evidence before the Magistrates Court, with any other evidence that this Court permits to be adduced: Luketela v Birch [2008] ACTSC 99; 223 FLR 1. In Peverill v Crampton [2010] ACTSC 79, Refshauge J said with regard to such appeals, at [24]:
Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:
1. The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.
2. The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.
3. The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate’s reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.
4. The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.
5. The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.
6. In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.
7. The appellate court should determine the correct judgement for itself and only order a retrial if it cannot.
At the conclusion of the hearing in the Magistrates Court, the Magistrate announced her decision and gave extemporaneous reasons. I remind myself of the observations of Kirby P in Acuthan v Coates (1986) 6 NSWLR 472, at 479, that it would be an error to examine an:
[U]nedited and unpunctuated record of ex tempore remarks in a busy magistrate’s court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates.
With regard to the second ground of appeal, that the verdicts of guilty were unreasonable, the relevant principles are well-established. In M v The Queen (1994) 181 CLR 487 (‘M v The Queen’), at 493, Mason CJ, Deane, Dawson and Toohey JJ said:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
(References omitted)
In Libke v The Queen [2007] HCA 30; 230 CLR 559 (‘Libke’), Hayne J, with whom Gleeson CJ and Heydon J agreed, said, at [113]:
…[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
(References omitted)
The principles set out above in the extracts from M v The Queen and Libke are expressed in the context of verdicts of guilty rendered by a jury. The same principles apply however with regard to verdicts rendered by magistrates or by a judge conducting a trial without a jury.
Ground of appeal one – the admission of the recording
The prosecution sought to adduce a recording of the alleged events said to have been made by FS using her mobile telephone. The accused objected on the ground that the recording was made in contravention of the provisions of the Listening Devices Act 1992 (ACT) (the LDA). The relevant provisions of the LDA are set out below:
4 Use of listening devices
(1) A person must not use a listening device with the intention of—
(a)listening to or recording a private conversation to which the person is not a party; or
(b)recording a private conversation to which the person is a party.
Maximum penalty: 50 penalty units.
(2) Subsection (1) does not apply to—
(a)the use of a listening device under an authority granted by or under a law of the Commonwealth; or
(b)the unintentional hearing of a private conversation by means of a listening device.
(3) Subsection (1) (b) does not apply to the use of a listening device by, or on behalf of, a party to a private conversation if—
(a)each principal party to the conversation consents to that use of the listening device; or
(b)a principal party to the conversation consents to the listening device being so used, and—
(i)the recording of the conversation is considered by that principal party, on reasonable grounds, to be necessary for the protection of that principal party’s lawful interests; or
(ii)the recording is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to any person who is not a party to the conversation.
(4) Subsection (3) (b) (i) does not apply so as to exempt a person from the application of subsection (1) if the relevant listening device is used by or on behalf of the Territory.
5Communication and publication of records of private conversations by parties
(1) A person who is party to a private conversation commits an offence if—
(a)the person divulges or communicates a record of the conversation; and
(b)the person knows that the record was made, directly or indirectly, using a listening device (whether or not in contravention of section 4)
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(2) Subsection (1) does not apply if the communication or publication—
(a)is made to another party to the conversation; or
(b)is made with the consent of each principal party to the conversation; or
(c)is made in the course of civil or criminal proceedings; or
(d)is considered by the party making it, on reasonable grounds, to be necessary for the protection of that party’s lawful interests; or
(e)is made to a person who is believed by the party on reasonable grounds to have such an interest in the conversation as to make the communication or publication reasonable in the circumstances; or
(f)is made under an authority granted by or under a law of the Commonwealth.
10Admissibility of evidence obtained using listening devices
(1) If a private conversation, or a report of a private conversation, has come to the knowledge of a person as a result (direct or indirect) of the use of a listening device in contravention of section 4, or as a result (direct or indirect) of the use of a listening device in circumstances referred to in section 4 (2) (b) or 4 (3)—
(a)evidence of the conversation; or
(b)evidence obtained as a direct consequence of the conversation so coming to the knowledge of that person;
must not be given by that person in any civil or criminal proceedings.
(2) Subsection (1) does not apply—
(a)if each principal party to the conversation consents to the evidence being given; or
(b)in proceedings for an offence against this Act; or
(c)if the listening device was used in the circumstances referred to in section 4 (3) (b) (i)—so as to render any evidence inadmissible for the purpose of protecting the lawful interests of the principal party to the conversation who consented to the use of the device; or
(d)in proceedings for a defined offence if, subject to subsection (4), a court considers that the evidence should be admitted; or
(e)if the person referred to in subsection (1) also obtains knowledge of the conversation or report in circumstances other than those referred to in that subsection.
(3) Subsection (2) (c) does not apply so as to render admissible evidence that has been obtained, directly or indirectly, by the use of a listening device by or on behalf of the Territory.
(4) In determining whether to admit evidence referred to in subsection (1) in proceedings for a defined offence, the court shall—
(a)be guided by the public interest, including (if relevant) the public interest in—
(i)upholding the law; and
(ii)protecting people from illegal or unfair treatment; and
(iii)punishing those guilty of offences; and
(b)have regard to all relevant matters, including—
(i)the seriousness of the offence in relation to which the evidence is sought to be admitted; and
(ii)the nature of the relevant contravention of section 4, or of the relevant circumstances referred to in section 4 (2) (b) or 4 (3).
(5) A court before which evidence referred to in subsection (1) is admitted in proceedings for an offence against this Act, or proceedings for a defined offence, may, at any stage of the proceedings, and from time to time, make an order forbidding the publication of—
(a)any such evidence; or
(b)any report of any such evidence; or
(c)any report of the substance, meaning or purport of any such evidence.
(6) A person must not engage in conduct that contravenes an order under subsection (5).
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
The following definitions found in the Dictionary to the LDA are also relevant:
“defined offence” means—
(a) an offence against a Territory law (other than the common law) punishable by life imprisonment or for 10 years or more; or
…
“listening device” means any instrument, apparatus, equipment or device capable of being used to listen to or to record a private conversation, but does not include a hearing aid.
“party”, in relation to a private conversation, means—
(a) a person who speaks, or is spoken to, in the course of the conversation; or
…
“principal party”, in relation to a private conversation, means a person who speaks, or is spoken to, in the course of the conversation.
“private conversation” means a conversation between persons in circumstances that may reasonably be taken to indicate that any of the principal parties desires the conversation to be listened to only—
(a) by themselves; or
…
Logically, the first issue to be addressed is whether what was recorded by FS was a “conversation” for the purposes of the LDA. In the present case, it was alleged that there had been an argument between the appellant and FS about a dog, in the course of which the appellant had threatened to assault FS. Whether a threat is made as part of a conversation is a matter of fact and degree. The mere communication of a threat, unaccompanied by any other communication, is unlikely to be said to have been part of a conversation. In the present case, it appears that any alleged threat was made during an argument in which both parties participated. In any event, this issue was not ventilated by the parties either before the Magistrate or in the course of this appeal. I will proceed on the basis that what was recorded by FS was a conversation for the purposes of the LDA.
Was the conversation a private conversation for the purposes of the LDA? The conversation occurred in a private residence occupied by the parties. This circumstance will not always be conclusive of whether it may reasonably be indicated that one or more of the principal parties desired the conversation to be listened to only by the parties; for example, where, as here, the conversation is constituted by an argument, it may be conducted at such a volume as to indicate that the parties are indifferent to who hears the conversation. Another example may be where such a conversation takes place in front of third parties in the household. In the present case the evidence does not establish that the conversation was sufficiently loud as to establish that the parties were indifferent as to who heard it. The Magistrate was satisfied that it was a private conversation for the purposes of the LDA, and the evidence is not such as to enable that determination to be challenged.
The mobile telephone used by the complainant to record the conversation was clearly a device capable of being used to record a private conversation, and as such was a listening device for the purpose of the LDA.
The issue resolves to one whether any of the exception provisions applied such that the complainant’s use of the listening device was not proscribed by the LDA. In s 4, relevantly for present purposes, the use of the listening device was not proscribed if a principal to the conversation (in this case, the complainant) consents to the use of the device and the recording of the conversation was considered by her, on reasonable grounds, to be necessary for the protection of her lawful interests.
In Violi v Berrivale Orchards Ltd [2000] FCA 797; 99 FCR 580, Branson J considered the provisions of the Listening Device Act 1984 (NSW), which had a similar provision to s 4 of the LDA. Branson J identified the mischief which the NSW Act was intended to address as the protection of privacy. With regard to the meaning of the words “lawful interests” in s 5 of the NSW Act, her Honour said, at [28]:
Unassisted by authority, it seems to me that “lawful interests” are to be distinguished from “legal interests”. I do not consider that s 5(3)(b)(i) calls for a legal interest in the sense of a legal right, title, duty or liability. Rather, I consider that “lawful interests” within the meaning of the paragraph are interests which are not unlawful…
In Dong v Song [2018] ACTSC 82; 331 FLR 326 (‘Dong’), McWilliam AsJ said with regard to the interpretation of s 4 of the LDA, at [24] to [43]:
Applicable legal principles
24.A number of authorities in other jurisdictions have given consideration to the meaning of ‘necessary’, ‘reasonable grounds’, and ‘protection’ of ‘lawful interests’ in the same or similar statutory contexts.
Necessary
25.In this statutory context, ‘necessary’ has been held to mean appropriate, but not essential: Sepulveda at [117].
Reasonable grounds
26.The reasonableness of such necessity is to be judged objectively, and upon bases or grounds that exist at the time of the recording: Sepulveda at [118], in relation to the terminology used in the NSW Act, being ‘reasonable necessity’.
Protection
27.The ordinary meaning of ‘protection’ as shelter, defence or preservation from harm, danger or evil has been said to be apt in this statutory context: Sepulveda at [120]; Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72; 261 FLR 211 (Georgiou) at [16].
Lawful interests
28.The words ‘lawful interests’ are not defined and the scope of those words has not been comprehensively identified in the authorities: DW v R [2014] NSWCCA 28; 239 A Crim R 192 (DW v R) at [27]. It is an expression best left to be applied case by case, subject to some general guidelines: Thomas v Nash [2010] SASC 153; 107 SASR 309 (Nash) per Doyle CJ at [47].
29.In Violi at [28], it was said that ‘lawful interests’ means simply interests which are not unlawful. The words are to be distinguished from legal interests, and convey notions of ‘legitimate interests’ or ‘interests conforming to law’. Violi was a case involving a claim for breach of contract or alternatively for misleading or deceptive conduct. The conversations that had been recorded had taken place after the date upon which the alleged contract was entered into and the representations relied upon by the applicants to base their claims in misleading or deceptive conduct had already occurred. It thus has some resonance with the present case.
30.Violi was followed in Georgiou per Allanson J at [16], and in Dimech v Tasmania [2016] TASCCA 3; 257 A Crim R 495 at [8]. In Sepulveda, Johnson J (with whom McClellan CJ at CL and Hislop J agreed) suggested at [126] that the meaning of a lawful interest may not be as broad as that stated in Violi, although his Honour expressly declined to consider the issue as the parties had not submitted that what was stated in Violi was wrong.
31.The parties here have similarly not expressly submitted that Violi was wrong, but it arises for consideration here because the defendants have argued that ‘lawful interests’ does not encompass the interests of the plaintiff here and they rely in part on the reasoning in Sepulveda to support that submission.
32.Sepulveda was a criminal proceeding. Johnson J construed the structure of the equivalent exception in the NSW Act as follows at [115]:
…It is necessary to bear in mind that s 5(3)(b)(i) constitutes an exception to the general statutory prohibition on the use of a listening device, where the primary exception permits recording of conversations under warrant. There is a strong argument that the words of s 5(3)(b)(i) ought be closely confined to avoid undermining the primary purpose of the [NSW Act]. An undue willingness to include a multitude of differing circumstances within this statutory exception may serve to encourage persons to make a covert recording of a conversation rather than (in the present context), comply with the primary object of the Act by bringing the matter to the attention of the relevant law enforcement authorities so that application may be made for a warrant to lawfully record a conversation.
33.Johnson J (again with McClellan CJ at CL and Hislop J agreeing) went on to state at [142] (emphasis added):
Section 5(3)(b)(i) of the [NSW] Act should not be interpreted in such a way as to render otiose the primary purpose of the Act, which is to protect privacy by prohibiting covert recording of a conversation other than (usually) by way of a warrant under the Act. Section 5(3)(b)(i) operates as an exception. The construction of the learned trial Judge would leave open the covert recording of a conversation by any person who alleges that he or she is a victim of crime, and who speaks to the alleged offender for the purpose of obtaining admissions of offences. The ‘lawful interests’ identified by the trial judge in the present case are of a somewhat nebulous kind. They do not appear to satisfy the requirement that the recording be undertaken for the protection of then existing lawful interests. It is important that a construction not be attached to this statutory exception which would serve to undermine, in a significant respect, a primary purpose of the [NSW] Act.
34.That passage was relied upon by the defendants as applying to the present case. They sought to draw an analogy between a victim of a crime and the present case, where the conduct that is the concern of these proceedings (past representations made to the plaintiff) has already occurred, and the plaintiff seeks to meet with the defendant to obtain admissions as to what was said previously.
35.It is difficult to see how the above reasoning as to the proper construction of the exception is applicable in a civil context. Respectfully, I do not accept the Act ought be construed so that the obtaining of a warrant is seen as the ‘primary exception’, by which other exceptions that directly follow it (in this case, s 4(3)(b)(i) of the Act) ‘ought be closely confined’. The context of the section does not require such a construction, and it does not sit well with the fact that the particular exception provided for by the Act is equally apt to the use of listening devices to protect a person’s interests in a civil context. A person who seeks to protect their private interests in a civil context cannot entreat the relevant law enforcement authorities to use their resources to apply for a warrant: see Crimes (Surveillance Devices) Act 2010 (ACT) s 11. The exception in s 4(3)(b)(i) of the Act is necessarily unrelated to the exception covering warrants in s 4(2)(a) of the Act.
36.In my view, neither a broad nor a confined construction attaches to the exception created by s 4(3)(b)(i) of the Act. Rather, in line with Doyle CJ’s comment in Nash (referred to in 28] of these reasons), it is preferable to simply consider the expression ‘lawful interests’ in the context of the circumstances of each case, focussing on the words not in isolation, but in the context of the section being an exception to a criminal offence, and with the purpose of the Act in mind. It may be that the more tenuous the lawful interest, the less likely that it will be objectively necessary to protect it through the means of a listening device.
37.Further, even in the case of victims of crime, the reasoning at [142] of Sepulveda has been distinguished where the facts of the case make it impracticable for someone to ask the police to apply for a warrant. In DW v R, one of the grounds of the appeal involved a recording made by a 14 year old child complainant of conversations with her father which had been admitted into evidence by the primary judge in a trial involving criminal charges of, among other things, aggravated indecent assault and use of a child for pornographic purposes.
38.In DW v R, Ward JA (as her Honour then was) at [45]-[46] referred to the appellant’s reliance on the above reasoning in Sepulveda at [142] in support of a submission that it was open to the complainant to have complained to the police. Her Honour found that the child could not be expected to have understood the legal avenues that she could take in order to have her complaints investigated (at [47]), going on to state at [48]-[49]:
[48]…Nor did she, as was the case in Sepulveda, seek to obtain money in exchange for the recording. Given the relatively short period of time between the making of the recording and the occasion on which the complaint was made to the police (about a month), there is no reason to infer that the recording was not made for the purpose of the complainant having some evidence which she could use to convince others to believe her or to corroborate her word (as was the context in which it was suggested that she make the recording in the first place) or to protect herself from further assaults. …
[49] In my opinion, it was open to the trial judge to infer that the recording was made for the purpose of the protection of the complainant’s lawful interest in protecting herself from continuing abuse and exploitation.
39.Her Honour went on to state at [51]:
The Crown submitted, and I accept, that it was not practicable in the circumstances of this case for the complainant to contact police in order to seek to arrange a warrant to record conversations with her father.
40.Similarly, the desire of a witness to protect her credibility generally; to support her credibility if she had to give evidence in court proceedings about the matter; and to protect herself against exposure to being charged with making false allegations against other people about matters of considerable seriousness, have been held to be lawful interests in R v Le at [83] per Adams J (with whom RS Hulme J agreed).
41.As stated at [23] of these reasons, the defendants relied on a passage in R v Le to the contrary, per Giles JA at [47]. However, his Honour was in dissent on that issue and the applicable reasoning to this case is that of the majority.
42.Such interests may be contrasted with a mere desire to have a reliable record of a conversation, or a desire to gain an advantage in civil proceedings, which would not ordinarily amount to a relevant lawful interest: Nash at [48] per Doyle CJ, noting again that each case has to be considered on its facts.
43.In Chao at [8] a recording made where a serious dispute had erupted, and it was anticipated there would be a dispute as to different versions of an arrangement, was held by Brereton J to give rise to a lawful interest (see also DW v R at [34]).
This analysis of the provisions of s 4 of the LDA was not challenged by the parties in the present appeal. It was also referred to with approval by Loukas-Karlsson J in R v EP [2019] ACTSC 89. With respect, I agree with McWilliam AsJ’s analysis.
In her evidence, the complainant was asked why she had made the recording, and she replied, “I actually thought I was going to die that evening.”
In the course of a voir dire before the Magistrate, her Honour was taken to a number of prior authorities, including Dong. Her Honour essentially determined that an exception in s 4(3)(b) was made out, and I think that it may be inferred from exchanges between the Magistrate and counsel that her Honour was satisfied that the exception in s 4(3)(b)(i) was made out. Her Honour did not, in terms, identify the relevant lawful interest of the complainant.
In my opinion, the Magistrate was correct to determine that the exception in s 4(3)(b)(i) was made out. The complainant feared that she may be seriously injured or even killed by the appellant. The complainant was not challenged in cross-examination about that evidence. The complainant feared that she may not be able to say what had happened to her, if her fears were realised. She feared that she may not be able to give evidence contradicting, for example, any claim that injury occasioned to her was occasioned in circumstances where the appellant was not criminally liable. The complainant gave evidence, of necessity brief, that she had been abused by the appellant frequently, and had been injured by him in the past. In my opinion, the complainant had reasonable grounds for her fears, and as such there were reasonable grounds for her to consider that it was necessary to make the recording for the protection of her lawful interests.
A similar exception is found in s 5(2)(d) of the LDA, and for the same reasons as I have stated above I am satisfied that the complainant has established that her actions fell within that exception. It would also seem likely that in providing the recording to the police in order to provide evidence of the commission of criminal offences by the appellant, the complainant’s conduct fell within the exception found in s 5(2)(e) of the LDA.
Even if it were determined that the use of the listening device by the complainant to record the conversation with the appellant was unlawful, in the sense of being in contravention of s 4 of the LDA, that fact by itself does not make the recording inadmissible as evidence in the prosecution of the appellant. In that regard, it is necessary to consider both s 10 of the LDA and s 138 of the Evidence Act 2011 (ACT) (the Evidence Act).
Section 10(1) of the LDA proscribes the use of a recording made in contravention of s 4, or when the use of the listening device does not contravene s 4(1) by reason of falling within an exception found in s 4(2)(b) or s 4(3). That proscription, however, is itself subject to exceptions: see subsections 10(2) and (3). In the present case the relevant exception is found at s 10(2)(e). In the present case, the complainant attained knowledge of the conversation in circumstances other than through the use of the listening device: she was a participant in the conversation. The exception found in s 10(2)(e) therefore applies, such that evidence of the conversation was admissible. This is the case whether the “person” referred to in s 10(1) is the complainant or the informant in the criminal proceedings in the Magistrates Court, as the informant would undoubtedly have been told of the conversation by the complainant. As a result, even if the use of the listening device was proscribed by s 4 of the LDA, the recording was not rendered inadmissible by s 10.
It is also necessary to consider the potential application of s 138 of the Evidence Act. This provides, in s 138(1), a general rule that evidence obtained improperly or in contravention of an Australian law, or in consequence of such an impropriety or contravention of an Australian law, must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way that the evidence was obtained. In deciding whether to exercise the discretion to admit evidence that falls within s 138, there are a number of circumstances or matters which the Court must take into account: s 138(3). The matters which the Court must take into account are:
(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.
The probative value of the evidence is significant, as a recording of events that form the basis of the charges against the appellant. The evidence was important in the proceeding, both in its own right and as support for the evidence of the complainant. The gravity of the contravention (on the assumption that there was a contravention) was low. It was not suggested to the complainant that she knew that what she was doing was prohibited by the LDA, or that she had been reckless in that regard.
The offences charged against the appellant were domestic violence offences, each carrying a potential penalty of imprisonment. They were serious offences.
The appellant submitted that the evidence could have been otherwise obtained by oral evidence from the complainant, but this is a misconception. Oral evidence from the complainant of the terms of the conversation is evidence which is different to and separate from the evidence which was challenged, and to which s 138 of the Evidence Act must be applied. The evidence, for that purpose, is the recording of the conversation, not the conversation itself. In the circumstances, it would have been virtually impossible for that evidence to have been obtained in any other way then it was.
A further circumstance, which is relevant to the exercise of the discretion granted by s 138, is the fact that the Act which creates the illegality (the LDA) itself addresses the question of admissibility and did not render the recording made by the complainant inadmissible.
The respondent raised the possibility that the recording of the conversation by the complainant may have involved an impropriety, in the sense that it breached the appellant’s right to privacy. I do not accept that suggestion. A criminal has no right to keep their offending private, or to claim that the gathering of evidence of their crime is a breach of their privacy.
Even if the recording of the conversation had been obtained in contravention of the LDA, the proper exercise of the discretion found in s 138 of the Evidence Act would have resulted in its admission into evidence.
Ground of appeal two – unreasonable convictions
An evidence in chief interview with FS was conducted by police on the night of 31 January 2018. An audio-visual recording of this interview was received as evidence in the proceeding before the Magistrate. In that interview, FS gave clear and concise evidence that the appellant had been angry on the night of 31 January 2018 and had kicked her to the leg during the argument that took place. She was not shaken in cross-examination.
A recording of a 000 call made to police by FS on 31 January 2018 was also tendered as evidence. In that recording FS complained of being kicked by the appellant, and she clearly sounds distressed. Police attended the residence and arrested the appellant. They did not observe any bruises or other marks to the leg of FS.
Police conducted an interview with the appellant that night. The appellant denied kicking FS or breaching the family violence order.
The appellant gave evidence before the Magistrate. He said that he and FS had argued during the day of 31 January 2018, and that as a consequence he had spent most of the day in bed. At some point that evening he got out of bed and went to the loungeroom, where he found FS sitting on the lounge patting the dog, Chili. The appellant said he became angry because he did not want the dog in the house. He said that he attempted to “spook” the dog by banging a rubbish bin into a table with his leg. He said that he hoped that the dog would jump away from FS and give him the opportunity to get it out of the house. He denied kicking FS’s leg. He said that any yelling or swearing he engaged in was directed towards the dog. He did not believe he had breached the family violence order.
In cross-examination, the appellant agreed that he had said to FS “stop being a lying cunt” during the argument. He said he did not believe the way in which he spoke to FS on 31 January 2018 was harassing, threatening or intimidating because FS also spoke to him in the same way. It was suggested to the appellant that in the recording made by FS he could be heard to say “I’m gonna fucking snot you, cunt”, but in his evidence he said “you’re an effing snot, you are”, and that this was directed towards the dog.
The Magistrate, in giving her reasons, spoke about the recording made by FS. She considered some of the statements made by the appellant in the recording to be “obscene”. Of more significance is the fact that she concluded that the appellant had been yelling continuously at FS from close range “and it was in a tone and at a level and the venom in the voice and the vigorousness with which it was uttered and the continuation of it was nothing short of harassing and intimidating” behaviour.
The Magistrate then turned to the charge of assault:
Now, there is a contest in relation to whether she was kicked. There’s no independent evidence about that and ordinarily, if it’s just a word on word, whilst I accept what the complainant says, I would have to have some very good reason not to accept what the defendant says for me to find the offence proven and that’s why I asked the questions I did and for the submissions by both counsel because the harassing behaviour, which I’ve already found to have contravened the order, was significant in my view. It was continual, it was loud, it was violent and, in that circumstance, the kicking is would not be something that I would consider not unusual, that there would be some form of assault in that circumstance but that, in my view, would not be enough either. I would have to reject the evidence of the defendant in that regard.
So, I turn to his evidence and I must say his evidence before me, he was calm and considered and thoughtful in his evidence before me but I also have the recorded interview which I’ve seen, it’s a video, and I’ve seen the way he reacted to some of the things he saw in the evidence-in-chief interview. I’ve seen the way he was very aggressive towards the police, I thought. Now, that may well have been because he was in the situation he was in. It may have been because he was tired. He said he’d been in bed all day but he may not have been sleeping all day and he did appear to be tired. So, those sorts of things you take into account but he was aggressive, I thought, and angry. Now, he may be angry because it was a bunch of lies.
I have also taken that into account as well but I’ve taken into account what he said and that was in relation to calling the dog a bitch. It seemed to me that it was more directed towards [FS] in at least two or three occasions that I recall and when he said, “I’m going to snot you.” Now, he’s denied that and said he was talking about the dog and I didn’t believe it. That’s why I wanted to hear the recording again, and I’m satisfied what I heard the very first time and heard the second time is, “I’m going to snot you.” Now, that’s consistent with going to assault her. Now, I don’t know in what part of the scenario that was but it doesn’t really matter because I have to assess him on his credibility and then he says, when it was put to him that he was angry and when he clarified to say he was upset and angry with the dog, again, that is inconsistent with what I heard.
So, I’m not satisfied that I can accept what the defendant says in relation to the kicking, because of those inconsistencies in his evidence, I’m not satisfied about that and therefore, and I am satisfied and I accept the evidence of the complainant, I don’t accept the evidence of the defendant in relation to the kicking and I find that offence proven as well…
In written submissions, the appellant submitted that, apart from the evidence of the recording, this was a “word on word” case, and the Magistrate should have had a reasonable doubt. He further submitted that in the context in which the argument occurred, his statements were not such as to breach the family violence order.
I have no hesitation in agreeing with the Magistrate that the evidence established a breach of the family violence order. Having listening to the recording on numerous occasions, I am satisfied that his conduct was, and was intended to be, harassing and intimidating. I agree with the Magistrate that he was yelling at FS, and that his tone was aggressive. His suggestion that he was talking to the dog is improbable, but in any event I am satisfied that his conduct was really directed towards FS, and intimidating her.
In finding the appellant guilty of assault, the Magistrate was entitled to take into account the clear aggression demonstrated by the appellant at the time that FS says she was kicked. She was also entitled to find that the appellant had threatened to “snot” FS, and that this was a threat to hit her. The Magistrate was also entitled to find that the accused had kicked the rubbish bin just before he kicked the complainant, although his intention may have been to scare the dog. These were all circumstances supportive of the evidence of FS. Finally, the Magistrate had the benefit of seeing and hearing FS cross-examined and the appellant giving his evidence. Her finding that FS was a credible witness, and the appellant was not, should not lightly be interfered with. I am satisfied that there was ample evidence upon which the Magistrate was entitled to convict the appellant.
Conclusion
The appeal will be dismissed.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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