POINTER & CHEADLE

[2019] FamCA 452

FAMILY COURT OF AUSTRALIA

POINTER & CHEADLE [2019 ] FamCA 452

FAMILY LAW – EVIDENCE – Admissibility – Admissibility of audio telephone voicemail messages inadvertently left on father’s telephone by the mother – Admissibility of transcripts of audio telephone voicemail messages – Whether s 138 of the Evidence Act 1995 pertaining to the exclusion of improperly or illegally obtained evidence applies – Where the Court determines that the audio telephone voicemail messages have not been unlawfully obtained – Admission of evidence on provisional basis until relevance, authenticity and accuracy can be determined in the course of proceedings – Where the Court exercises its discretion to admit the audio telephone voicemail recordings and transcripts into evidence.

Evidence Act 1995 (Cth) ss 56, 57, 138.
Telecommunications (Interception and Access) Act 1979 (Cth) ss 5, 108.

APPLICANT: Mr Pointer

RESPONDENT: Ms Cheadle

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 7392 of 2013

DATE DELIVERED: 17 June 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland DCJ

HEARING DATE: 17 June 2019

REPRESENTATION

THE APPLICANT IN PERSON:  Mr Pointer  

COUNSEL FOR THE RESPONDENT: Mr Hill

SOLICITOR FOR THE RESPONDENT: Delaney Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pointer & Cheadle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7392 of 2013

Mr Pointer

Applicant

And

Ms Cheadle

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This decision concerns an issue that has arisen at the commencement of parenting proceedings and is in respect to the admissibility of what is commonly known as a “pocket call” where a message has inadvertently been left by Ms Cheadle (‘the mother’) on Mr Pointer’s (‘the father’) phone.

2. The father has sought leave to tender, as part of his evidence, transcriptions that he has made of telephone voicemail messages left on his telephone on 29 August 2016 at 7.48 pm, on 2 September 2016 at 7 pm and on 7 February 2017. In addition, the father has sought leave to have admitted the actual recordings of those messages.  That course of action is opposed by the mother who acknowledges that the latter two of those recordings are recordings of voicemail messages inadvertently left by her.  The mother contends, however, that the message recorded on 29 August 2016 is a recording made by the father of communication that the mother was having with the parties’ child while the child was on the phone to the father.

3. I do not propose to set out, in this decision, the texts of the telephone voicemail messages. They are set out at ‘Annexure 92, ‘Annexure 94’ and ‘Annexure 96’ of the father’s tender bundle marked ‘Exhibit E3’.  

4. The starting point for the admissibility of evidence, is whether the evidence is relevant. In that respect, s 56 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) provides, “except as otherwise provided by this Evidence Act, evidence that is relevant in a proceeding is admissible in the proceeding”. Having listened to the tape recordings, I am of the opinion that certainly ‘Annexure 94’ and ‘Annexure 96’ are relevant. I have some reservations in respect to ‘Annexure 92’, which I will shortly address.

5. I have noted the words “except as is otherwise provided in the Act”, and, in that respect, one of the exemptions to the admissibility of evidence is set out in s 138(1) of the Evidence Act, which provides that:

   (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 admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained.

   …

6. Subsections 138(1)(a) and (b) set out two preconditions to the operation of that section.  They are expressed in the alternative that essentially relate to evidence that is improperly or unlawfully obtained.  On the facts of this case, I respectfully agree with the submission of the Independent Children’s Lawyer, that the father’s account of receiving the messages, being left by way of voicemail on his telephone is more probable than the mother’s account, noting specifically, each recording was introduced by a message advising that a voicemail message had been left.

7. During the course of the proceedings there was a discussion with Counsel as to whether the recordings have been unlawfully or improperly obtained. In that respect, it was noted that s 108 of the Telecommunications (Interception and Access) Act 1979(Cth) (“the Interception and Access Act”) relevantly provides:

   Stored communications not to be accessed
   (1) A person commits an offence if:

   (a)  the person:

   (i) accesses a stored communication; or

   (ii) authorises, suffers or permits another person to access a stored communication; or
   (iii) does any act or thing that will enable the person or another person to access a stored communication; and

   (b)  the person does so with the knowledge of neither of the following:

   (i) the intended recipient of the stored communication;

   (ii) the person who sent the stored communication.

   Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

   Note:  This section does not prohibit accessing of communications that are no longer passing over a telecommunications system, from the intended recipient or from a telecommunications device in the possession of the intended recipient.

8. The notation to that section reflects the definition of “stored communication” set out in s 5 of the Interception and Access Act which provides;

   Stored communication means a communication that:

   (a)  is not passing over a telecommunications system; and

   (b)  is held on equipment that is operated by, and is in the possession of, a carrier; and

   (c)  cannot be accessed on that equipment, by a person who is not a party to the communication, without the assistance of an employee of the carrier.

9. Even though the father was arguably not the intended recipient of the communications because they were sent to him inadvertently, it is clear that the messages, which were left on the father’s phone, were no longer passing over the Internet and they are not stored communications for the purpose of the Interception and Access Act.

10. In summary, having accepted that the father’s version is more probable, and that there has not been any interference with the carriage devices or the telephones that left and received the messages or the communication chain in-between, it is my view that the evidence has not been improperly obtained or unlawfully obtained, as provided for in either of those paragraphs of s 138(1) of the Evidence Act to which I have referred.

11. In circumstances where I have determined that most certainly that ‘Annexure 94’ and ‘Annexure 96’ are relevant, I propose permitting the father to tender that evidence together with a tape recordings of the messages.  In so doing, I note the force of the submission of counsel for the mother regarding the clarity, or, more specifically, lack of clarity in the recording, and, hence, doubt being cast on the accuracy of the text as transcribed by the father.  In so admitting the transcriptions and the voicemails, I specifically acknowledge that I am not determining the accuracy of the transcriptions that have been made from those recordings.  I leave open the issue as to the authenticity, accuracy and the significance of the recordings and transcripts save to the extent that the mother has admitted the accuracy of parts of those recordings.   

12. I specifically leave open ‘Annexure 92’, which is a brief account of a conversation of some five (5) lines. There has been some debate as to the relevance of that material. At this point, I propose to admit ‘Annexure …’, being the transcription of the voicemail message on 29 August 2016, and the recording itself under s 57 of the Evidence Act, which empowers a court to provisionally admit evidence, subject to its relevance being established during the course of the proceedings.

13. In summary, the Court admits into evidence the texts set out in ‘Annexure 94’ and ‘Annexure 96’, subject to the parties presenting argument in respect to authenticity and accuracy of those documents. Similarly, the Court admits ‘Annexure 92’ and the voice recording, but does so on a provisional basis in respect to that particular ‘Annexure 92’, pursuant to s 57 of the Evidence Act.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 17 June 2019.

Associate: 

Date:  19 July 2019