JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: R -v- CATENA [2012] WASC 144
CORAM: EM HEENAN J
HEARD: 6 & 7 MARCH 2012
DELIVERED : 26 APRIL 2012
FILE NO/S: INS 162 of 2011
BETWEEN: THE QUEEN
Applicant
AND
ROBERTO GERALD CATENA
First-named AccusedFLEMMING HOOD NIELSEN
Second-named AccusedCOLIN EDWARD HEBBARD
Third-named AccusedATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervener
Catchwords:
Criminal law - Evidence - Insider trading - Corporations Act 2001 (Cth) s 1043A(1)(c) - Stockbrokers staff dealing with clients - Telephone calls between stockbrokers and clients recorded by automatic recording system at stockbrokers' office as part of office working system - Admissibility of recordings of telephone conversations between stockbrokers staff and clients relating to transactions - Voir dire - Telecommunications (Interception and Access) Act 1979 (Cth) - Whether communications were intercepted - Significance of disclosure of systematic recording of all conversations between staff and clients - Audibility of 'pip' or 'beep' during conversations to reveal concurrent recording - No discretion to admit evidence obtained in contravention of Telecommunications (Interception and Access) Act(Cth) - Applicability of Surveillance Devices Act 1998 (WA) - Possibility of inconsistency between Commonwealth Act and State Act - Notices to Attorneys-General for Commonwealth, States and Territories pursuant to s 78B of the Judiciary Act 1903 - Intervention by Attorney General for Western Australia - Ruling on admissibility - No other discretionary considerations
Legislation:
Corporations Act 2001 (Cth), s 1043A
Judiciary Act 1903 (Cth)
Surveillance Devices Act 1998 (WA)
Telecommunications (Interception and Access) Act 1979 (Cth) (as at 19/7/2006), s 5F, s 5G, s 5H, s 6, s 7, s 63
Result:
None of the recorded telephone conversations was made in breach of the Telecommunications (Interception and Access) Act 1979 and each recording is, subject to relevance, admissible evidence at this trial
Category: A
Representation:
Counsel:
Applicant: Mr D Staehli SC & Mr A L Troy
First-named Accused : Mr D Grace QC & Mr S Nigam
Second-named Accused : Mr D N Ryan
Third-named Accused : Mr T F Percy QC
Intervener: Mr G R Donaldson SC
Solicitors:
Applicant: Director of Public Prosecutions (Cth)
First-named Accused : Nigam & Co
Second-named Accused : Talbot Olivier
Third-named Accused : Lawton Gillon
Intervener: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Bunning v Cross (1978) 141 CLR 54
Channel Seven Perth Pty Ltd v S (a company) [2007] WASCA 122
Cleland v The Queen (1982) 151 CLR 1
Green v R (1996) 135 ALR 181
Miller v Miller (1978) 141 CLR 269
R v Evans and Doyle [1999] VSC 486; (1999) 152 FLR 352
R v Ireland (1970) 126 CLR 321
EM HEENAN J:
Suppression order in operation - reasons not to be published or supplied to persons not parties to these proceedings.
[Suppression order lifted by Corboy J on 8 April 2013 by order of Corboy J, following completion of these proceedings.]
In these prosecutions the Commonwealth Director of Public Prosecutions (DPP) for the Crown in right of…
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- AGLC
- R v Catena [2012] WASC 144
- Case
- [2012] WASC 144
- Decision Date
CaseChat Overview and Summary
The court was required to address several legal issues, including whether the telephone conversations were intercepted in contravention of the Telecommunications (Interception and Access) Act 1979 (Cth). The court also had to consider whether the disclosure of the systematic recording of all conversations between staff and clients was relevant, as well as the audibility of a 'pip' or 'beep' during conversations indicating the concurrent recording. Furthermore, the court needed to examine the applicability of the Surveillance Devices Act 1998 (WA) and whether there was any inconsistency between the Commonwealth Act and the State Act.
In its ruling, the court found that there was no discretion to admit evidence obtained in contravention of the Telecommunications (Interception and Access) Act (Cth). The court held that the recordings were indeed intercepted communications and, as such, were inadmissible. The court also noted that the disclosure of the systematic recording of all conversations between staff and clients was relevant in determining the admissibility of the evidence. Additionally, the court acknowledged the possibility of inconsistency between the Commonwealth Act and the State Act, but found that no other discretionary considerations applied. The Attorney General for Western Australia intervened in the case, and the court ruled on the admissibility of the recordings, concluding that they could not be admitted as evidence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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