R v Catena - [2012] WASC 144

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 Accused
FLEMMING HOOD NIELSEN
Second-named Accused
COLIN EDWARD HEBBARD
Third-named Accused
ATTORNEY 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Catena

Details

AGLC: R v Catena [2012] WASC 144
Case: [2012] WASC 144
Decision Date: 26 APRIL 2012

CaseChat Overview and Summary

The case of R v Catena involved the defendant, Catena, who was charged with insider trading under section 1043A(1)(c) of the Corporations Act 2001 (Cth). The dispute centred around the admissibility of telephone call recordings made by an automatic recording system in the stockbroker's office. These recordings captured conversations between stockbrokers and their clients regarding transactions. The Supreme Court of Western Australia was tasked with determining whether these recordings could be used as evidence in the case.

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