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 the Commonwealth has made this application before the trial of the three accused to have determined, pursuant to s 98 of the Criminal Procedure Act 2004 (WA) certain questions regarding the admissibility of evidence which the Crown seeks to adduce against the several accused. In addition the DPP relies upon r 23 of the Criminal Procedure Rules 2005. This application was made on 22 November 2011 and is supported by an affidavit of a legal practitioner at the DPP, Ms J E Edis, sworn 22 November 2011. The precise terms of the form of order sought are:
The applicant applies for an order that the evidence of conversations to which each of the accused was a party, contained in telephone recordings obtained from Citigroup Wealth Advisors Pty Ltd, proposed to be led by the prosecution, be ruled admissible against each such accused.
As set out in more detail below, each of the three accused has been charged, committed for trial and indicted on several counts of breaching the Corporations Act 2001 (Cth). The charges are laid under s 1043A(2) and s 1043A(1)(d) of the Corporations Act and vary in detail as between the three accused and from charge to charge. However, for present purposes, it is enough to say that each of the charges involves an allegation or allegations of the communication of inside information or procuring others to acquire securities while in possession of inside information. The several charges relate to transactions entered into for the purchase or sale of marketable securities in circumstances when the accused Catena and Hebbard were employees of a firm of stockbrokers in Perth, Citigroup Wealth Advisers Pty Ltd (Citigroup) and while the accused Nielsen and/or his wife were clients of Citigroup. Nielsen, it is alleged, was communicating either on his own behalf or as agent for his wife in relation to orders for the buying or selling of securities with Citigroup. Importantly, all communications alleged to give rise to breaches of the Corporations Act occurred in the course of telephone conversations between one of the accused and another of the accused or a third party, although the individual accused varied from conversation to conversation. There are approximately 76 such telephone conversations, the contents of which, in the form of electronic recordings, the DPP is seeking to put in evidence.
At all times material to this case Citigroup had installed and in operation an electronic system for the recording and preservation of all telephone calls, incoming and outgoing, between its advisers and dealers and clients of the firm or others. This was known as the NICE system and was a regular feature of the business operations of Citigroup. It served various purposes, including to provide a record of buy and sell orders or similar instructions received by the firm from clients orally by telephone in order to check, verify or confirm orders which had been placed or received. It also provided a mechanism for Citigroup to supervise its employees and to ensure that their conduct, and the business which they transacted on behalf of the firm, complied with the regime of statutory regulation applying to the firm and to their various licences. The evidence is to the effect that the NICE system or similar systems were commercially designed and installed, complied with applicable rules and regulations relating to the use of the telephone communications system, insofar as that involved the choice or use of particular equipment and electrical magnetic or electronic means of attaching to or monitoring a telephone communications system. This or comparable systems were commonly employed by police, accident and emergency organisations such as fire and emergency services, ambulance services, taxi, airline and marine services where it is important to have an authentic record of a large number of daily oral telecommunications engaging or dealing with the business of the particular service concerned.
One of the features of the NICE system sometimes available was the presence of an audible 'pip', 'beep' or high‑pitched 'tone' which would sound at intervals of 15 seconds or so in the course of the conversation being recorded which may be audible to one or both of the parties to the telephone conversation signifying that the call was being recorded. There are issues of fact in the present case as to whether or not the 'pip', 'beep' or 'tone' sound was in use in the NICE system utilised by Citigroup; whether it was always in use; whether it could be turned off or its volume decreased, even to an inaudible extent, by one of the operators; and, indeed, even when it was in operation and audible whether it was audible to both persons party to the particular conversation, that is the caller and the receiver, or only to one of them. The details of the evidence in that regard will be mentioned later.
The evidence which the DPP seeks to adduce is evidence recorded by the NICE system of 76 or so of these telephone recordings between one accused or another or between an accused and third parties. The objection to the admissibility of the evidence is common to each occasion in which a recording is sought to be put into evidence. It is that these recordings constitute unauthorised interceptions of telecommunications contrary to the provisions of the Telecommunications (Interception and Access) Act 1979 (Cth) (the 'TIAA') and, as such, are rendered completely inadmissible by s 6(1) and s 63(1) of that Act. It is accepted by counsel for the prosecution that if the recordings of the conversations were made in contravention of the provisions of that Act then, by reason of the statute, they are completely inadmissible and there is no discretion for the court to admit them or any of them on the grounds that while illegally obtained, their probative value is not outweighed by their prejudicial effect or because of any other consideration such as exists at common law ‑ Bunning v Cross (1978) 141 CLR 54; R v Ireland (1970) 126 CLR 321; Cleland v The Queen (1982) 151 CLR 1. In this regard, the DPP accepts as correct the observations of McDonald J in R v Evans and Doyle [1999] VSC 486 [16]; (1999) 152 FLR 352 where his Honour observed:
There is no discretion vested in the court by the Act to permit the recordings to be admitted in evidence in the event of the same constituting 'an interception' of the relevant telephone conversations.
To the extent that a criterion for admissibility of any of the recordings may depend upon a finding of fact on contested issues of fact, I accept the submission for the DPP that, the admissibility of the evidence being a question of law for the judge at the trial, or myself on this voir dire, the standard of proof is to the balance of probabilities. Again, the observations of McDonald J in R v Evans are apposite. In that case, at [45], his Honour concluded:
On issues of fact to be established by the prosecution on a voir dire such as this relevant to the court's decision whether evidence is admissible on the trial of an accused, where the admissibility of such evidence has been objected to, such facts must be established to the satisfaction of the court on the balance of probabilities: Wendo v The Queen (1963) 109 CLR 559 at 572 per Taylor & Owen JJ; (at 562) per Dixon CJ; R v Browne‑Kerr [1990] VR 78.
By far the larger part of the hearing and the submissions on this application concerned questions of whether or not these recordings were obtained or made in contravention of the provisions of the TIAA. However, counsel for the accused Nielsen advanced the further submission that if the recordings were either not communications passing over a telecommunication system or not interceptions within the meaning of the Commonwealth Act, then they were nevertheless recordings obtained from infringement of the provisions of the Surveillance Devices Act 1998 (WA). This submission proceeded to contend that in that eventuality the recordings would have been illegally obtained in contravention of the Surveillance Devices Act and that this would give rise to a general discretion of the court to admit or reject evidence obtained through 'unfair' or 'unlawful' acts and that when exercising this discretion the court is obliged to weigh the competing public interests of bringing those who commit criminal offences to conviction and protecting an individual from unlawful and unfair judgment ‑ see per Barwick CJ in R v Ireland (333 ‑ 335). This gave rise to the submission that the court should exercise its discretion to exclude evidence of recordings of conversations with Dr Nielsen obtained by Citigroup for the purposes set out in their terms of business and, more so, where there was no evidence to suggest that Dr Nielsen had direct or implied knowledge that his conversations with his broker were being recorded by his broker's employer.
This indication of submissions relying on the applicability of the Surveillance Devices Act (WA) was met by counsel for the DPP in two ways. First, it was submitted that the Surveillance Devices Act had no application to the recordings made of telephone conversations as occurred in this case by reason of the proper interpretation of its terms.
Further, however, counsel for the DPP pointed out that if, contrary to this submission, the State Surveillance Devices Act otherwise did appear to apply, it would not be effective because such a construction would involve the application of a State statute, to a field ‑ telecommunications interception and access ‑ which had comprehensively been covered by the Federal statute which, because of s 109 of the Constitution of the Commonwealth, would mean that the State statute was invalid and ineffective to the extent that it was inconsistent with the Federal statute in regulating or attempting to regulate conduct within the 'field' covered by the Commonwealth legislation.
Counsel for the DPP referred to Miller v Miller (1978) 141 CLR 269 where the High Court considered the predecessor to the TIAA and decided that that Act was intended to be the whole law on the subject of the interception of telephone communications so that where sections of the Listening Devices Act (1959) (NSW) rendered certain uses of a telephone extension unlawful and prohibited evidence being given of any conversation which had come to the knowledge of a person as a result of such an unlawful use, the effect of the application of s 109 of the Constitution was to render those State provisions invalid to the extent that they dealt with telephonic interception. No prior notice had been given by the DPP, the accused Nielsen or any other person that the provisions of the State Surveillance Devices Act may be inconsistent and invalid with the Commonwealth statute and hence invalid or inapplicable. Accordingly, in the course of the hearing on 7 March 2012 I directed that the DPP should prepare and serve notices under s 78B of the Judiciary Act to each of the attorneys‑general for the Commonwealth, the States and the Territories, giving notice of the matter which had arisen concerning the potential application of the Surveillance Devices Act 1998 (WA) and the potential invalidity and inapplicability of that statute by reason of the s 109 inconsistency with the provisions of the TIAA.
Subsequently, an affidavit was filed on behalf of the DPP verifying that notices in suitable form pursuant to s 78B of the Judiciary Act had been served upon each of the attorneys-general as required by that legislation. Only the Attorney General for Western Australia has intervened in these proceedings by notice dated 4 April 2012 indicating that he is content to rely on his written submission and does not desire to address oral submissions to the court unless requested. I am satisfied that the interest of the Attorney General for WA on this point can be dealt with adequately by the helpful written submission which have been received.

Intervention by Attorney General for Western Australia

After reciting the facts and the relevant statutory provisions, the Solicitor‑General for Western Australia, Mr G R Donaldson SC, on behalf of the State Attorney General, then addresses the question that if the recorded interceptions which the prosecution seeks to adduce are not inadmissible by reasons of the TIAA, then what effect, if any, is produced by the provisions of the Surveillance Devices Act. The Solicitor‑General refers to the explanation of the scheme of the SDA provided by McLure JA in Channel Seven Perth Pty Ltd v S (a company) [2007] WASCA 122 commencing at [5]. Counsel refers to s 5 of the State Act which prohibits a person using a listening device to record a private conversation, including a conversation to which that person is a party, and goes on to assume that the recorded interceptions sought to be adduced by the DPP in this case were recorded by use of a device which would come within the definition of a listening device in s 3 of the SDA. The submissions then pass to the concept of 'private conversation' as defined in s 3 of the SDA Act and the circumstances under which publication of a record of a private conversation (in effect, arising from the use of a listening device) are restrained by s 9 of the State Act. Attention is drawn to the provisions of s 3 which exclude from the definition of 'private conversation':
A conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard.
The Solicitor-General then submits that upon the facts relied upon by the prosecution the telephone conversations between dealers at Citigroup and the accused Nielsen and others were such that the conversations should not be regarded as private conversations and that their use is therefore not restricted or restrained by the State Act. The exact submission of the learned Solicitor-General on this point is as follows:
As such, the conversations were not private conversations; and thereby there is no prohibition on their publication, and thereby there is no impediment to their admissibility.
Accordingly, according to the submission for the Attorney General, there is no inconsistency between the TIAA and the Surveillance Devices Act and there is no occasion for the court to consider the decision in Miller v Miller with regard to its application to the present Telecommunications (Interception and Access) Act (Cth).
For reasons which will appear in more detail later, I am satisfied that in any telephone conversations which the accused Nielsen had with either of the accused Catena or Hebbard sought to be relied upon by the DPP, each such conversation was one where Nielsen ought reasonably to have expected that the conversation might have been overheard in the sense of being recorded by the brokers' employer, Citigroup, in order to preserve and verify the commercial transactions for which instructions were being given or received. This means that I am satisfied that on the facts of this case the conversations do not come within the purview of the Surveillance Devices Act. However, in case that may be a view which turns out to be wrong or not supported by the evidence, I do consider that the decision of Miller v Miller applies to the present TIAA just as much as it did to the preceding 1960 Commonwealth statute and that I am bound by that decision to conclude that the Surveillance Devices Act cannot and does not extend or apply to such telecommunications interceptions as occurred in this case.

Evidence in support of application

The evidence sought to be relied upon by the Crown is contained in two volumes of materials together marked as Exhibit 1. This consists of certain statements forming part of the prosecution brief and documents or other exhibits referred to in those statements again forming part of the brief previously disclosed by the Crown. The materials are extensive and are fully indexed in Exhibit 1. They comprise a list of witness statements together with copies of the relevant documentary exhibits referred to in each statement. For brevity at this point I will identify only the witness statements but will incorporate by reference the index identifying the documentary exhibits forming part of each statement, all of which are included in the materials before the court for this application. On this basis, the evidence comprises:
1.Statements of:
(a)Sarah Gardiner - 24 June 2010 (Hebbard brief);
(b)Sarah Gardiner - 24 June 2010 (Catena brief);
(c)Sarah Gardiner - 24 June 2010 (Nielsen brief);
(d)Rebecca Chapman - 28 February 2008 (applicable to all briefs);
(e)Paul Tan - 19 August 2009 (applicable to all briefs);
2.16 compact discs containing telephone conversations obtained from Citigroup Wealth Advisors relating to conversations between one or more of the accused and/or third parties.
3.Transcripts of recorded telephone conversations obtained from Citigroup Wealth Advisors between one or more of the accused and/or third parties comprising some 76 transcripts in all covering the period 19 July 2006 to 14 August 2006 (inclusive).

Included as part of Exhibit 1 is a document referred to as a 'Can Say Statement' of Rebecca May Chapman dated 28 February 2010 who at the material times was employed as an IT officer at Citigroup assisting all the brokers and staff with their IT issues. The statement purports to be an epitome of the evidence which could be provided by Ms Chapman about the state of awareness by brokers and staff at Citigroup at the time that their telephone calls were recorded and that the NICE system was used as a tool to verify orders. She recalls the accused Catena and Hebbard working at Citigroup during the period that she was employed at the firm, but does not have any specific recollection of either Catena or Hebbard requesting her to double check their client orders. She also described the existence of a 'beep box' attached to each of the broker's telephones designed to emit a 'beep' sound during the brokers' calls as a requirement of the NICE system. She described how some of the brokers had problems with the 'beep' boxes in that the 'beep' was too loud and as part of her duties she would change the boxes or reduce the volume. She says that she recalls that Hebbard complained at some stage about the 'beep' being too loud. She also described that on occasions when she performed an audit of recorded calls, she noticed during some calls that the 'beeps' were not there - indicating that the 'beep' box had been removed and that she periodically sent emails to brokers (perhaps one every six months) reminding them that they were required to have the 'beep' boxes attached and other associated matters.
A further exhibit (Exhibit 2) was adduced by counsel for the accused Hebbard identifying those conversations between Hebbard and others relied on by the prosecution in the case against him. There are 20 such conversations all indexed in Exhibit 2. All but one of those are conversations between Hebbard and third persons and the remaining conversation is one between Hebbard and Catena.
There was no objection to the receipt of any of the evidence for the prosecution nor any demand that any of the authors of the statements should be available for cross‑examination. No oral evidence was adduced by the Crown.
As an aid to interpretation, if required, the court was provided with copies of the explanatory memorandum, supplementary explanatory memorandum and second reading speeches by the responsible ministers in the House of Representatives and in the Senate when introducing the Telecommunications (Interception) Amendment Bill 2006.
Neither the accused Catena nor the accused Hebbard gave evidence on the hearing of the application. However, the accused Nielsen did give oral evidence (ts 125 ‑ 134) and was cross‑examined by counsel for the DPP but not by counsel for either of the co‑accused.
Essentially, the substance of the evidence by the accused Nielsen was that he was never aware that his conversations with staff at Citigroup were being recorded. Notwithstanding the contents of several of the application forms and other contractual documents which he had signed over time with Citigroup which contained within their terms provisions to the effect that the client acknowledged that the firm may record their telephone conversation with the client, and that if there was a dispute the client may listen to any such recordings in respect of that dispute. Nielsen says that he was not aware of this. Copies of the firm's financial services guide had been sent to Nielsen as a client of the firm and he had signed a form acknowledging receiving an application form, client profile and terms of business (which include references to the phone calls being recorded) and had read them, and that his wife had executed a similar acknowledgement in respect of her account, all this notwithstanding, Nielsen maintained that he had just signed the documents without reading them, or reading them fully, and he had never realised or appreciated until after the material events had happened that his telephone conversations with his brokers at Citigroup were being or might be recorded. His understanding of technical or formal language was limited (despite his graduate and post‑graduate qualifications in medicine). The question of whether or not one or both parties to the conversation was aware that a conversation may be recorded was, as will be seen from the submission, considered later, suggested to be a possible determinant of whether or not the recording of the conversation could occur without infringement of the TIAA.

Material facts

This resume of material facts is taken largely from the statements of material facts filed by the prosecution pursuant to s 35 of the Criminal Procedure Act 2004 (WA). The material facts vary from accused to accused but the variations are not of any direct importance to the issues to be determined on this application. Nor are the details of the individual offences alleged against each accused, although generic descriptions of them will be given.
The background is that at all material times Morgan Stanley Smith Barney Australia Pty Ltd (ACN 009 145 555) was the holder of an Australian Financial Services Licence number 240813, which was first issued on 10 March 2004. Morgan Stanley Smith Barney Australia Pty Ltd had been incorporated on 12 August 1985 as Saw James Ltd. Since then it has had numerous name changes. In particular, it has been known as Morgan Stanley Smith Barney Australia Pty Ltd since 29 May 2009. It was known as Citi Smith Barney Pty Ltd from 26 June 2007 to 28 May 2009. It was known as Citigroup Wealth Advisers (Citigroup) from 30 June 2005 until 25 June 2007, which includes the period material to this case.
The accused Roberto Gerald Catena was a proper authority holder of Citigroup from 20 May 2002 to 10 March 2004. Prior to that he was proper authority holder for Bell Potter Securities (Merrill Lynch Private (Australia) Ltd and Merrill Lynch Securities). From 10 March 2004 pursuant to the Financial Services Reform Act (Cth) Catena became an Authorised Representative of Citigroup Pty Ltd, a subsidiary of Citigroup, and signed an Employee Trading Policy and Procedures document. Catena also signed an acknowledgement of his obligations as an employee to comply with Citigroup's Code of Conduct which described prohibitions on insider trading and tipping or passing on inside information to any other person.
During 2006 Catena was located in and worked from the Perth, Western Australia office of Citgroup at level 11, 2 The Esplanade, Perth, as a client advisor/stockbroker. Whilst working at the Citigroup office in Perth, Catena operated in conjunction with another Citigroup advisor, his co‑accused Colin Edward Hebbard. Catena and Hebbard shared a common client base and in effect they operated as a team. Catena and Hebbard shared the same broker reference 'CAH' allocated to them through the Stock Exchange Automated Trading System (SEATS).
Prior to and during 2006 Citigroup recorded all telephone conversations to and from landline numbers allocated to their brokers by means of an automated recording system called 'NICE'. Catena's allocated landline at Citigroup during 2006 was (08) 9288 9212.
Colin Edward George Hebbard (the accused Hebbard) was a proper authority holder of Citigroup from 28 October 2002 to 10 March 2004. Prior to that, he was a proper authority holder for UBS Wealth Management Australia, Merrill Lynch Equities (Australia) Ltd, Merrill Lynch Equities and Bell Potter Securities Ltd.
From 10 March 2004 pursuant to the Financial Services Reform Act (Cth) Hebbard became an authorised representative of Citi Smith Barney. On 31 October 2002 Hebbard signed an Employee Trading Policy and Procedures Document. On 10 March 2003 Hebbard signed an acknowledgement of his obligations as an employee to comply with Citigroup's code of conduct which described prohibitions on insider trading and tipping or passing on inside information to any person.
During 2006 the accused Hebbard was also located in and worked from the Perth (Western Australia) office of Citigroup at level 11, 2 The Esplanade, Perth, as a client advisor/stockbroker. As already described, in that role he worked in conjunction with the accused Catena, shared a common client base and, in effect, operated as one of a team.
Dr Flemming Hood Nielsen (the accused Nielsen) was a client of Citigroup. Nielsen held an account in his own name and was also authorised to transact on an account held in his wife's name, Mrs Tracey Lynn Nielsen. During 2006 Nielsen and his wife were also clients of Commonwealth Securities Ltd (CommSec). They held accounts in both their names and had authority to transact on each other's account.
During 2006 Nielsen was a client of the accused Catena, an authorised representative of Citigroup.

Vision Systems Ltd

Vision Systems Ltd (ACN 009 145 555) (VSL) was at all material times a public company listed on the Australian Securities Exchange (ASX). From 20 September 1985 and at all material times the ordinary shares of VSL were listed on the ASX under the code 'VSL'. Those shares are both securities and Div 3 financial products as those terms are defined in the Corporations Act 2001 (Cth).
On 12 July 2006, VSL signed a confidentiality agreement with a company incorporated in the United States of America by the name of Ventana Medical Systems Inc (Ventana). Under the terms of the agreement Ventana was authorised to conduct a due diligence investigation into VSL with a view to the parties entering into a merger implementation agreement within six weeks whereby Ventana would acquire VSL at a price of $2.55 per VSL share to be adjusted for any capital return or distributions (which was subsequently made 40 cents).
The Commonwealth DPP alleges that on or before 18 July 2006 the accused Catena received information from an unidentified source that there would be a takeover/merger in relation to VSL at a price of about $2.10 to $2.20 which would occur in a matter of weeks (the inside information). The prosecution alleges that Catena passed on part of all of the inside information to various clients between 18 July 2006 and 10 August 2006. The specific inside information communicated by Catena to his clients is contained in Citigroup recordings of telephone calls made by Catena to his clients from his allocated Citigroup number in Perth, and telephone calls received by the accused from his clients to that number.
On 10 August 2006, VSL issued an ASX Market Release announcing a trading halt. Immediately prior to the halt, VSL last traded at $1.73. On 14 August 2006, VSL issued an ASX Market Release announcing, inter alia, that VSL and Ventana had entered into a merger implementation agreement under which Ventana would acquire for cash all of VSL's Ordinary Shares for $2.13 each. VSL then opened at $2.10 and reached a high of $2.12 for the day. The Value Weighted Average Price for VSL on 14 August 2006 was $2.096268 which was a premium of 21.17% over the last traded price of $1.73.
The prosecution alleges that the inside information was not generally available prior to the announcements in the Market Releases to the ASX on 10 and 14 August 2006 already mentioned.
VSL informed the ASX in a Memorandum dated 29 August 2006 that because of the extremely commercially sensitive nature of the approach by Ventana to VSL the highest levels of security and secrecy protection had been initiated by the VSL board as set out in that memorandum.
The DPP also alleges that the accused Catena passed on part of all of the inside information to the accused Nielsen between 19 July 2006 and 9 August 2006. The specific inside information alleged to have been communicated by Catena to Nielsen is contained in the Citigroup recordings of telephone calls made by Catena to Nielsen from his allocated Citigroup number in Perth and telephone calls received by Catena from Nielsen to that number.
The prosecution seeks to prove that on 19 July 2006 at about 10.55 am (WST) the accused Nielsen telephoned the accused Catena and that during that conversation Catena stated he knew that Nielsen did not have any money:
But I want you to, ah, even if you do this, you know, er … I've got a company called Vision Systems - VSL. V for Victor, S for Sam, L for Larry I've had a few people ring up in the last couple of days. Apparently there is a rumour that it's going to be taken over and the price is going to be about $2.20.
The prosecution seeks to allege that Catena further stated that was pretty good so it might be worth 'ahh' and the accused responded 'having a little punt of it' and Catena stated 'Yeah'.
Further, the prosecution seeks to prove that on 19 July 2006, about 1.04 pm (WST) during a further telephone conversation where Nielsen called Catena, Nielsen sought clarification on VSL and said, 'Okay, maybe I should have a little bit of a punt on them' and later stated, 'We could get maybe say 20,000 shares or something', as Nielsen was not sure how much equity he had, Catena advised he would check it out.
The evidence sought to be relied upon by the DPP then relates to a series of orders placed by Nielsen with Catena for the purchase of VSL shares on 19, 20, 24, 25, 26 and 31 July 2006 both in his own name and on behalf of his wife, Tracey Lyn Nielsen. The accused, Nielsen, then placed further orders with Catena for the purchase of VSL shares on 2 and 4 August 2006 on his wife's account. A large quantity of shares was ordered and purchased for Nielson by Catena over this period and the evidence sought to be adduced by the DPP includes further conversations during that period which, without descending into particulars, can be characterised by saying that they contained further recommendations, encouragements and reassurances to Nielsen by Catena to proceed with further acquisitions of VSL shares.
So far as concerns the role of the accused, Hebbard, and trading in VSL shares, the prosecution alleges that at the material times a client, Harry Arildo Capararo (Capararo), was Hebbard's client. The prosecution seeks to prove that Hebbard communicated the inside information or parts thereof to Capararo on 19 July 2006 in the knowledge that the Inside Information was not generally available and that if it had been generally available, a reasonable person would have expected it to have a material effect on the price or value of VSL shares, and as a result of his professional relationship with Capararo, Hebbard knew, or ought reasonably to have known, that Capararo was a person who would or would be likely to acquire VSL shares.
In particular the DPP seeks to adduce evidence to establish that on 19 July 2006 at about 11.58 am (WST) Hebbard called Capararo during which Hebbard stated:
I know its not your bag, another one we're getting a bit of, a rumour, there's a rumour around that, um, Vision Systems, VSL, $1.50. Its pretty much out of your league but there's a talk probably someone having a look at them.
Capararo asked:
What point are they at?
Hebbard said:
Aah, still a bit of time but ah, ah at this point in time I would say they are talking over $2. I'll know a little more mate in the next day or so.
The DPP also seeks to establish that on 21 July 2006 Hebbard communicated the inside information or parts thereof to one Mark Richard McKenzie (McKenzie), a broker located in the Melbourne office of Citigroup. The DPP alleges that the inside communication was communicated to McKenzie in the knowledge that it was not generally available and that if it had been generally available, a reasonable person would have expected it to have a material impact on the price or value of VSL shares, and as a result of his professional relationship with McKenzie, Hebbard knew, or ought reasonably to have known, that McKenzie was a person who would or would be likely to acquire or procure another to acquire VSL shares. The prosecution then allege that inside information was provided by Hebbard to McKenzie in a telephone call on 21 July 2006; that McKenzie purchased shares in VSL on his own account on 27 July 2006 and that on 8 August 2006 the accused Catena telephoned McKenzie essentially recommending and encouraging McKenzie to acquire shares in VSL as there was a takeover at $2.20 coming.
Further similar allegations and charges are made by the DPP against Hebbard in relation to his dealings with another client, Kenneth Dean Gibson (Gibson). These involve an alleged telephone communication of inside information by Hebbard to Gibson on 20 July 2006. There is a further charge of similar disclosure of inside information by Hebbard to Capararo on 4 August.
The DPP alleges that the disclosures of inside information by Catena and Hebbard and/or the resulting procurement of shares in VSL were in breach of s 1043A of the Corporations Act. There are 20 similar or related charges advanced by the prosecution against Catena; 13 similar or related charges against Nielsen and four similar and four related charges against Hebbard. As already stated the telephone recordings obtained from Citigroup's NICE system contain the conversations or exchanges relied upon by the prosecution to prove the offences or material components of the alleged offences.

Submissions by the parties as to the admissibility or non-admissibility of the recorded conversations

Counsel for the DPP group their submissions in support of the admissibility of the recorded conversations under the following headings:
(a)Knowledge by the accused Catena and Hebbard that their telephone conversations were being recorded.
(b)The contention that knowledge by one of the parties to the conversations is sufficient to allow the admissibility of the communication against another party to the conversation, such as Nielsen, who possibly may not be proved to have knowledge of the recording.
(c)In any event, there was no interception of any telecommunication by a third party. In this instance, a call to or from any Citigroup dealer such as Catena or Hebbard should be treated as a call to Citigroup. In other words, a call to or from an agent should be treated as a call to or from the principal or, put slightly differently, the principal is not a third party when considering a call to or from the principal's employee.
(d)By virtue of s 5F ‑ 5H of the TIAA the recording of the calls of Catena and Hebbard at Citigroup by the internal NICE system occurred after the passing of the communication over a telecommunications system within the meaning of s 6 of the TIAA and is, therefore, not prohibited by that Act.
The prosecution relies on the confirmation by Catena and Hebbard by their signatures in the documents on Citigroup's 'telephone and electronic communications policy' together with the presence of the 'beeps' during the telephone calls with clients and McKenzie, where applicable, to establish that each knew his conversations were being recorded. Significance is placed on knowledge of the recording by one of the parties to a conversation by reason of s 6 of the TIAA 1979 as it was at the time of these alleged offences. At the material time the TIAA provided:
6(1)For the purposes of this Act, but subject to this section, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication.
Section 7 of the Act then provided:
7(1)A person shall not:
(a)intercept;
(b)authorise, suffer or permit another person to intercept; or
(c)do any act or thing that will enable him or her or another person to intercept; a communication passing over a telecommunications system.
Then, as now, s 63 of the TIAA provided:
63(1)Subject to this Part, a person shall not, after the commencement of this Part:
(a)communicate to another person, make use of, or make a record of; or
(b)give in evidence in a proceedings;
lawfully obtained information or information obtained by intercepting a communication in contravention of subsection 7(1).

The DPP submits that if the recording of the telephone calls was known to Catena and Hebbard, then the recording of each call was not an 'interception' within the meaning of s 6 and, accordingly, not subject to the prohibition set out in s 63.
The prosecution submits that if Catena or Hebbard knew that the calls were being intercepted then not only is there no breach of s 63 but the contents of the calls are admissible against another person to the conversation such as Nielsen even if he were not aware that the calls were being recorded. Counsel for the DPP submits that that proposition and the admissibility of such communications are established by the decision of the Court of Criminal Appeal in Green v R (1996) 135 ALR 181 in the reasons for decision of Franklyn J, with which Pidgeon and Rowland JJ agreed. Notwithstanding a subsequent series of significant changes to the TIAA and to the monopoly position of Telecom, as it was at the time of the decision in Green, counsel for the DPP submits that the principles expounded by Franklyn J in that case are still applicable. At (189 ‑ 190 of that report, Franklyn J said:
In T v Medical Board of South Australia (1992) 58 SASR 382, it was the view of Matheson J, with whom Debelle J agreed, that the purpose of the Act in seeking to control the interception of communications is to protect the privacy of communications passing between the users of the system established by Telecom … Matheson J concluded that the proper construction of s 6(1) was that 'any intrusion by a third party into a communication from A (the caller) to B (the intended recipient) in its passage over the system from caller to the intended recipient will be an interception if made without the knowledge of the caller or the recipient'. On the assumption that, consistently with the words of the section 'without the knowledge of the person making the communication', the reference 'without the knowledge of the caller or recipient' is intended to refer to the caller or recipient, as the case may be, whilst making a communication, I would agree with that conclusion and the reasoning which supports it.
It is obvious that each party to a telephone communication is aware that the other party is or may be listening to what the first party says in that communication. Section 7(1) aside, there is no prohibition in the Act upon either or any party to the communication recording, by taking notes or otherwise, information received by him or her in that communication. Indeed such recording of information is an incident of everyday life and essential to the conduct of many commercial operations. A construction of s 6(1) which accepts that a communication over the telephone, listened to by its intended recipient in the ordinary course of the use of the telecommunications system, may be lawfully recorded by the recipient without the knowledge of the caller, but renders illegal the recording of the same communication by the same intended recipient if it is listened to or recorded in the fragment of time during which it so passing over the system, solely because the listening to and or recording of it occurred without the knowledge of the caller while it was passing over the system, is in my view absurd and without point. It does nothing to protect the privacy of the communication, it being received and/or recorded by the person to whom it is directed. It does nothing to protect the system from the use of equipment not installed by Telecom, as, provided the listening and or recording is done with the knowledge of the caller, there is no sanction against it, whatever be the device used. I agree with Matheson J and with the New South Wales Court of Criminal Appeal in Edelsten [sic] (1990 21 NSWLR 542) that the Act is concerned to protect the privacy of communications passing between users of the system established by the Commission. As such there is nothing to be protected as between the caller and the intended recipient who receives the call. The intended protection is against a third party invading the privacy of that communication by an interception within the meaning of s 6(1). Consequently I am of the view that there was no interception within the meaning of s 6(1) and no contravention of s 7(1).
(The passage emphasised by italics from this citation was stressed by counsel for the prosecution.)
On this basis, it was submitted for the DPP that any absence or inadequacy of knowledge by the accused Nielsen that a conversation to which he was a party was being recorded is no ground for the exclusion of evidence of that conversation if the other party, Catena or Hebbard, was aware of the recording.

Whether recording by the NICE system maintained by the employer was an interception

Again relying upon the observations of Franklyn J set out above from Greenthat the prohibition in the TIAA is against a third party invading the privacy of such a communication by an interception within the meaning of s 6(1) the DPP submits that a recording such as occurred here through the employment of the NICE system as part of the standard business operations of Citigroup recording the conversations of its employees was not an 'interception' within the meaning of the TIAA. The admissibility of recordings of telephone communications with or by staff members in closely analogous circumstances was upheld in R v Evans and Doyle. In that case, McDonald J in the Supreme Court of Victoria was conducting a voir dire to determine the admissibility of such recordings of telephone conversations between an employee and a client of the broking firm J B Were & Son on insider trading charges contrary to s 1002G of the Corporations Law, a predecessor of the section relied upon by the prosecution in the present case. In R v Evans and Doyle, the broker, J B Were & Son, had a system in place which recorded all telephone calls to which their employed brokers were a party and the prosecution sought to rely on those recordings at the trial. In upholding the admissibility of that evidence, McDonald J said (364):
[67]… In many, many fields of modern commerce, commercial transactions are negotiated and entered into by oral communications and by means of the telecommunication system. On authority, as I have referred to and particularly R v Green, if one person to such a telephone conversation tape recorded such a conversation, even without the knowledge of the other person who was speaking and listening on the telephone during the communication, the recording would not be an interception within s 6(1) of the Act and would be admissible in evidence in a court proceeding …
[68]By the telecommunication recording equipment situated at its business premises, J B Were & Son recorded the telephone conversations from the desks of a number of its employees who in the course of their employment with J B Were & Son were dealing with clients of J B Were & Son who placed orders with them and sought and received advice as part of the business of J B Were & Son. The telephone conversations had with clients by employees of J B Were & Son would be part of J B Were & Son transacting its business which would be done by its employees acting in the course of their employment. J B Were & Son as a corporation could only act through its agents and employees. There could be no privacy in such a telephone conversation which was private from the dealers or advisor's employer, their principal, the corporation J B Were & Son.
[69]The conclusion that I have reached is that by recording the subject telephone conversations J B Were & Son was not a third party to such and invading the privacy of the telephone conversations had between Doyle and Evans … The recording of the subject telephone conversations by J B Were & Son do not constitute interceptions within the meaning of s 6(1) of the Act. Accordingly, the provisions of s 6(1) of the Act do not prevent the tape recordings of the conversations being admitted in evidence on this trial.
There were some differences between the terms of the TIAA as it applied at the time of R v Evans and Doyle and the terms of that Act as it applied at the date material to the present case. However, I am satisfied that none of those differences is material to any consideration of the present issues. The essential point is that there could be no privacy as between an employee of a broking firm and the firm itself in relation to the content of business telephone communications between staff of the firm and its clients acting in the course of their employment in taking or receiving orders for the purchase of securities or giving advice or information in relation to such actual or potential transactions. There has been no suggestion in the present case that any of the conversations which are the subject of this application by the DPP occurred otherwise than in the course of the employment of Catena and/or Hebbard with Citigroup and in the performance of their duties whilst conducting the business of Citigroup with clients or callers.

Were these recordings made after the communications had passed over the telecommunication system within the meaning of s 6 of the TIAA?

Counsel for the DPP submits that by virtue of s 5F, s 5G and s 5H of the TIAA which were added to that Act by an amendment which came into force on 13 June 2006, the recordings made in the present case should be regarded as having been made after the communication had passed over the telecommunication system and, as a consequence, are beyond the scope of the prohibitions contained in the Act. So far as is material, those sections provide as follows:
5F(1)For the purposes of this Act, a communication:
(a)is taken to start passing over a telecommunication system when it is sent or transmitted by the person sending the communication; and
(b)is taken to continue to pass over the system until it becomes accessible to the intended recipient of the communication.
5G(1)For the purposes of this Act, the intended recipient of a communication is:
(a)if the communication is addressed to an individual (either in the individual's own capacity or in the capacity of an employee or agent of another person) - the individual; or
(b)if the communication is addressed to a person who is not an individual - the person; or
(c)if the communication is not addressed to a person - the person who has, or whose employee or agent has, control over the telecommunications service to which the communication is sent.
5H(1)For the purposes of this Act, a communication is accessible to intended recipient if it:
(a)has been received by the telecommunications service provided to the intended recipient; or
(b)is under the control of the intended recipient; or
(c)has been delivered to the telecommunications service provided to the intended recipient.
(2)Subsection (1) does not limit the circumstances in which a communication may be taken to be accessible to its intended recipient for the purposes of this Act.
At this point, it is necessary to flag a major submission made on behalf of the accused in several forms but essentially which contended that the amendments introduced by this legislation in 2006 by the insertion of s 5F, s 5G and s 5H are not applicable to ordinary voice telephone calls between two callers present at the same time but, rather, are directed to telecommunications such as faxes, recorded messages, answering machines and other devices such as emails and SMS messages which may be sent or received when one of the parties to the communication is not present on the line to receive it. While it may be accepted that these amendments do have application to such more advanced forms of telecommunications, it does not follow that they have no application to conventional person to person telephone conversations when both caller and receiver are present and conversing at the same time.
However, counsel for the DPP submitted that the effect of s 5G(1)(c) is that where a communication is not addressed to a person, as in an oral telephone call made to a number, which could not be described as being 'addressed to a person', the communication becomes accessible (per s 5H) to the intended recipient and thus ceases (per s 5F(1)(b)) to pass over a telecommunications system when it is accessible to the person who has, or whose employee or agent has, control over the telecommunications service to which a communication is sent. Accordingly, so the submission for the DPP proceeds, delivery of an oral telephone call to a service controlled by a person (or entity), namely the employer of the proposed receiver of a call, as is the position in this case ('the person whose employee has control'), would operate to end the passing of the communication over the telecommunications system. The rationale for this interpretation, so it is submitted, consistently with the objects of the Act and as is relevant to this case, is that where the object of a call is to communicate with an employee of an entity so as to do business with the entity, the connection with the entity should be regarded as the termination of the communication's passage over the system. If so, the recording of the subject calls which must have occurred after that connection, subsequent to the time when 'control' occurred, would not be in breach of the Act.
I have several reservations which cause me to reject that submission. In the first place, it is very difficult to accept that a contemporaneous electronic recording of a telephone conversation made by a system such as the NICE system in operation at Citigroup could, in any practical or sensible sense, be regarded as having occurred after the communication had passed over the telecommunications system. The effect of the NICE system, as I understand it, was to record incoming and outgoing conversations as they are occurring, that is, simultaneously with the transmission. While that recording does not interfere with the passage of the principal communication, or constitute a telecommunication itself, it seems artificial to separate it in time from the principal telecommunication. At the very least, as counsel for the DPP frankly acknowledged, it is possible to view this recording, even if in some technical way separate from the original transmission, as being so closely tied up with and part of the original telecommunication that it would be contrary to the policy of the Act to seek to maintain any such distinction.
The next reservation is that there are certainly grounds to consider that an influential factor leading to the introduction of the 2006 amendments was the rapidly increasing use of other forms of telecommunications involving the transmissions of messages or data other than by simultaneous voice conversations from caller to caller.
Thirdly, s 5H(2) suggests that whatever may be the intended purpose or scope of s 5H(1), it should not be regarded as an exclusive code for determining when a telephone conversation becomes accessible to the caller over the telecommunications network. I am, therefore, not prepared to accept the submission that these recorded telephone conversations which are sought to be put in evidence by the prosecution are rendered admissible by reason of s 5F, s 5G or s 5H of the TIAA as amended.
The accused Catena and Hebbard have joined in advancing the same written submissions in opposition to the admissibility of any of these recorded conversations. In the course of oral submissions it is evident that they each also adopted, as far as they were applicable to their respective clients, submissions made on behalf of the accused Nielsen and vice versa.
First and foremost, counsel for the accused Hebbard submits that the recording of the conversations took place without his knowledge and without the knowledge of the persons to whom Hebbard was speaking. This submission involves the further contention that evidence relied upon by the prosecution to support the proposition that Hebbard was aware of the recordings should not be accepted or, alternatively, does not establish that proposition on the balance of probabilities. Counsel for Hebbard has submitted that there is no direct evidence that Hebbard was aware that the telephone conversations he was having with clients were being recorded and that general statements, not specifically referring to Hebbard in this regard, contained in the statement of Sarah Gardiner pars 31 and 32, are not persuasive and are, in any event, inadmissible, being hearsay. However, in the absence of any actual denial by Hebbard in evidence that he was ever aware that his telephone conversations at Citigroup with clients and others were being recorded, I consider that the documentary evidence establishes that it is more probable than not that he was aware from the terms of the documents of his employer which he signed and to which reference has already been made that telephone conversations could or might be recorded. I am also satisfied, on the balance of probabilities, that the working system within the Citigroup Perth office was such that there is a high degree of probability that all brokers and dealers were aware that the telephone conversations with clients were being recorded. This arises from the prevalence of the 'beep' boxes which were installed in relation to all the dealers' telephone systems, the facilities for altering the volume and even perhaps disconnecting the 'beep' box, and the availability of an IT officer to deal with problems or issues arising from these and other IT systems.
These same observations apply in relation to the question of whether or not the accused Catena was aware that telephone conversations were being recorded. Again, there has been no denial by Mr Catena in the course of this voir dire examination that he was aware that the telephone conversations were being recorded. The absence of that denial means that a finding or inference of knowledge that they were recorded can more readily be drawn from the evidence which has been adduced by the prosecution.
Consequently, I conclude on this evidence that both the accused Catena and the accused Hebbard were at material times aware of the existence and operation of the NICE system at Citigroup and that by that system all telephone calls which they had over the office land lines with clients or others were being simultaneously recorded. I am also satisfied that I should follow and apply the decision of the Court of Criminal Appeal in Green v R (supra) and find that, as each of Catena and Hebbard was aware that his conversations with Nielsen and others were being recorded, this means that these recordings do not contravene s 63 of the TIAA because, by virtue of s 6(1) of the Act, the recording of the communication was not made without the knowledge of the person making the communication.
Furthermore, I consider that I should also follow and apply the observations of McDonald J in R v Evans and Doyle to the effect that the recording of these transactions by Citicorp via NICE system did not constitute an interception of the telecommunication between Catena and/or Hebbard and Nielsen, another client or a third person because there was no distinction in point of identity, in these circumstances, between Citigroup and its employees Catena and Hebbard. In these circumstances, both Catena and Hebbard were acting in the course of their employment and in advance of the business of their employer of which they were instruments or agents. The communications with or by Catena and Hebbard in these circumstances were in reality and, I am satisfied, in law, communications with Citigroup. This was not an interception of a communication by Citigroup, it was a recording of a commercial dialogue to which the firm was a contracting or negotiating party. This conclusion means that even if, contrary to my earlier findings, Catena and/or Hebbard were not aware that their conversations over the telephone with clients or others were being recorded by the NICE system, there was still no interception of those communications and no prohibition upon the admissibility of those recordings at this trial.

I have previously noted that the submissions strongly advanced on behalf of the accused Nielsen, and supported by his evidence on oath, was that at the material times he was not aware that any of his telephone conversations with Catena or Hebbard or anyone at Citigroup were being, or might be, recorded. The submission is that notwithstanding his signatures on various documents, he never appreciated or realised that his telephone calls to Citigroup were being or might be recorded. He also maintains that he never heard any audible 'pip', 'beep' or tone emanating from his side of a telephone conversation with Mr Catena or anyone else at Citigroup. Having regard to this evidence and also to the evidence for the prosecution that sometimes 'beep' machines were not connected to a dealer's phone or were turned down, I am not satisfied that the prosecution has established to the requisite degree that Nielsen ever heard such 'beep', 'pip' or tone signals in any of his conversations, still less that, if he did so, he appreciated that these signified that his calls were being recorded.
There is, however, a quantity of circumstantial evidence in the documents which form part of his dealings with Citigroup that Nielsen contracted with the firm on the basis that his calls would be or might be recorded or monitored. However, the present issue does not depend upon what the contractual terms of the relationship between Citigroup and Dr Nielsen and/or his wife were. It is not unusual to find that a person has bound himself or herself contractually to a particular obligation without being subjectively aware of that. Such lack of subjective awareness will not excuse the contracting party from the obligation or duty which he or she has assumed. Here, however, we are not concerned with such contractual rights or obligations but, rather, with the state of actual knowledge which is identified by s 6(1) of the TIAA. Accordingly, while those contractual documents are relevant and require consideration and evaluation, their content does not determine this issue which, as already mentioned, requires satisfactory proof by the prosecution of the existence of actual knowledge by Nielsen. In this case, I am not satisfied that the prosecution has proved that Nielsen was actually aware that any of his conversations with Catena or Hebbard, the subject of this application, was being recorded.
On the question of whether or not the recordings made by Citigroup through the use of the NICE system of telephone conversations between its dealers or staff, including Catena and Hebbard, and clients and others, including Nielsen, constituted an interception contrary to the provisions of s 63 and s 6 of the TIAA, counsel for Nielsen has attempted to distinguish the decision in R v Evans and Doyle. The submission for Nielsen in this respect was that there is insufficient evidence to establish that either the client, Nielsen or his broker was aware that their conversations were being recorded and that in circumstances where the court is satisfied that neither person who was a party to the conversation was aware that it was being recorded, the reasoning adopted in R v Evans and Doyle does not apply. However, as already explained, I am satisfied on the evidence that, on the balance of probabilities, Catena and Hebbard were aware that their conversations with Nielsen, and others, were being recorded and that I should follow the decision of the Court of Criminal Appeal in Green v R and conclude that knowledge by one of the parties to the conversation that it is being recorded is sufficient to avoid the application of s 6(1) of the TIAA.
However, in this respect, I do not see how the question of knowledge by one or other of the parties to a telephone conversation that it is being recorded is in any way relevant to, or determinative of, the question of whether or not, in a case such as the present, where the recording is by the employer or principal of an employee or agent conducting the employer/principal's business in the course of his employment that constitutes an interception. The question of who is a party to the conversation needs to be determined by examining the roles of those involved. With respect, I consider that McDonald J was entirely correct to conclude that in a business such as a stockbroker conducted by a corporation, as Citigroup is, it can act only by employees or agents and that when conducting the business of the principal such agents are in no material way separate or divided from their employer or principal. In every sense, I consider it right to say that Citigroup was, through its employees and agents, a party to each of these conversations. It follows that I do not accept the submissions put forward on behalf of Nielsen that the decisions or principles examined in R v Evans and Doyle are in any way distinguishable.
As already noted, counsel for Nielsen submitted, as an alternative basis for illegality, that if the TIAA did not apply then the next step would be to consider the application of the Surveillance Devices Act 1998 (WA) and that such an examination should reveal that the recordings were made in contravention of that Act, so giving rise to a consideration of the discretion as to whether or not the evidence should be excluded or admitted in view of the considerations referred to in the State Act and as examined in R v Ireland (333 ‑ 335). However, I have already concluded that the Surveillance Devices Act does not apply in these circumstances but that, even if it did, it would be rendered invalid and inapplicable to the extent that it dealt with such telecommunication interceptions which have comprehensively been covered by the TIAA. For this reasons, those submissions on behalf of Nielsen must also be dismissed.
It follows that I conclude that none of the recorded telephone conversations which are the subject of this application by the DPP and which are identified in the materials contained in Exhibit 1 was made in breach of the Telecommunications (Interception and Access) Act 1979 (Cth) and each recording is, therefore, subject to relevance and to any other due objections not considered on this application, admissible in evidence at this trial.