R v Constantinos RIGANIAS

[2009] NSWDC 216

Reported Decision: 9 DCLR (NSW) 235

District Court

CITATION:	R v Constantinos RIGANIAS [2009] NSWDC 216
HEARING DATE(S):	12 August 2009
JUDGMENT DATE:	12 August 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Evidence will be admitted.
CATCHWORDS:	Criminal Law - Judgment - Admissibility of evidence - Recorded telephone conversation - Reasonably necessary to record evidence to protect lawful interests.
LEGISLATION CITED:	Evidence Act 1995 Listening Devices Act 1984
CASES CITED:	Sepulveda v Regina [2006] NSW CCA 379
PARTIES:	The Crown Constantinos Riganias
FILE NUMBER(S):	DC 08/11/1362
COUNSEL:	K McKay - The Crown M Gelbert - Accused
SOLICITORS:	NSW DPP Legal Aid Commission

JUDGMENT

1 HIS HONOUR: The accused is facing trial now on an indictment containing thirty-two counts. The proceedings are at a stage where we are part way through the evidence in chief of the first Crown witness. A juror was unexpectedly taken ill at the morning tea adjournment, and so in order to usefully occupy court time and minimise inconvenience to the jury later down the track, I have heard an application by the Crown concerning the admissibility of some evidence. The Crown contends that it is admissible, Mr Gelbert who appears for the accused, says it is not.

2 The accused is alleged to have obtained money from a number of different people, by deceiving them as to what was going to happen with the money. The Crown case is that the accused told each of the people that the money would be invested in a particular residential property development at Pyrmont. Exhibit 1 is a number of charts prepared by a forensic accountant which demonstrates where the money actually went.

3 In large part the money went to Macquarie Equity in order to pay for shares. It also went to pay the living expenses of the accused; to pay off credit card bills; some of it was paid to other investors; some of it was paid into loan accounts of the accused, (sometimes held jointly with others) and some of it, appears to have been withdrawn in cash and then deposited into the accused’s TAB betting account. Nothing in exhibit 1 support the assertion that the money was invested in a residential property development. I do not understand that part of the Crown case to be at issue. What appears to be at issue is what the accused said to the people before the money was handed over. As I have said, the Crown case is that he told them the money would be invested in a residential property development and I gather that the accused’s case is, that he said that the money would be invested, without specifying where that was to take place. Indeed, as I understand it the accused’s case, it is that he had not even decided whether the money would be put into property or other investments and had certainly not selected any particular site for the money to go. Even on the accused’s case it maybe that a number of offences have been committed, but the Crown has specified the deception in each case as being related to whether the money was to be invested in a residential property development and so I must look at the admissibility of the evidence in that light.

4 One of the people who gave money to the accused is a man by the name of Dimitrios Saitis. He was called on the voir dire. His evidence was that he had given significant sums of money to the accused totalling $194,000 and was becoming concerned as to where the money had gone. He said that he kept asking the accused for evidence that the money had gone into a trust account or that it had been used to purchase property and that he would attempt to meet him at the relevant development site but the accused would never turn up.

5 He clearly had some suspicions as to what was going on. Accordingly he began, over a period of time, recording telephone conversations he had with the accused. He had a mobile telephone which had the ability to record conversations made over that phone. Mr Saitis recorded fifteen such conversations. Those conversations were stored on the telephone. He then downloaded the conversations onto his computer and burned CDs containing the recordings. In September 2005 he took these to the Manly Police Station but, as I recall the evidence, they were not terribly interested.

6 Apparently someone else did become interested because there has now been a prosecution and someone, has listened to the recordings and made transcripts of the conversations. Mr Saitis has read the transcripts and accepts them as accurate. (I should mention, although it is not terribly relevant, that Mr Saitis did delete some parts of the recorded conversations which he said were derogatory comments made by the accused concerning his, that is, Mr Saitis’ wife. Mr Gelbert makes no point about that).

7 The Crown seeks to rely on those conversations as evidence that, contrary to what the accused told officers from the Department of Fair Trading, he was telling others, and Mr Saitis in particular, that the money was invested in property developments. As I mentioned, this is contrary to the accused’s case that no particular investments had been identified by him.

8 It is agreed between the Crown and Mr Gelbert that the legal decisions I need to make are these. Firstly. I need to consider s 5 of the Listening Devices Act and if I find that Mr Saitis’ conduct represents a breach of s 5

9 I need then to consider s 138 of the Evidence Act.

10 Section 5 begins by stating that,

“a person shall not use or cause to be used a listening device … to record a private conversation to which the person is a party.”

Mr Saitis was a party to the conversation. The Crown concedes it was a private conversation, and so the opening words to s 5 provide that Mr Saitis should not have used his mobile telephone as a listening device, to record the conversation he had with the accused. However, the opening words in s 5 are qualified by what follows. In particular s 5(3)(b)(i) provides that the prohibition does not apply to the use of a listening device by a party to the private conversation, if the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party. The Crown says that what Mr Saitis did by recording the conversations he had with the accused, was reasonably necessary for the protection of his lawful interests. Mr Gelbert says to the contrary.

11 Quite recently the Court of Criminal Appeal considered this issue in Sepulveda v Regina [2006] NSW CCA 379. That case was an appeal against the conviction of the accused for sexual offences. The victim of those offences, which were said to have occurred many year’s before, engaged the accused in conversation and recorded the conversation on a concealed micro cassette tape recorder. In that conversation, the accused made admissions and an edited version of the tape recording was admitted at the trial. The trial judge considered s 5(3)(b)(i) of the Listening Devices Act and determined that what the victim of the accused’s offences did was reasonably necessary for the protection of his lawful interests. The Court of Criminal appeal disagreed although it dismissed the appeal because it held that even though the judge had erred in his approach to the Listening Devices Act, the operation of s 138 of the Evidence Act would have inevitably meant that the evidence was admitted anyway. Justice Johnson’s judgment is very helpful. Amongst other things, it discusses earlier decisions, the policy behind the Listening Devices Act and examines what is reasonably necessary to protect a person’s lawful interests.

12 It is clear that Mr Gelbert is correct when he says that the mischief which the Act addresses, is the invasion of privacy, the Act being introduced to establish safeguards against the unjustified invasion of privacy, that could be occasioned by the use of electronic surveillance, see (Sepulveda at [105]). But the Act clearly contemplates invasions of privacy, where those invasions can be justified. The first way in which an invasion of privacy can be justified is clearly, where a warrant is obtained under the Act. The second and more relevant here of course, is where it is reasonably necessary for the protection of the lawful interests of one of the parties to the conversation. Although all of us might wish that we had an unfettered right to privacy, that is clearly not the case, the Act itself contemplating that what we may sometimes think are private conversations, can be recorded. Two of the circumstances in which that can occur being as I have just stated.

13 There is an objective test as to whether what Mr Saitis did by recording the conversations was reasonably necessary. And in considering that of course I must look at the circumstances as they existed at the time the recording was made. When he was asked why he recorded the conversation, Mr Saitis said there were numerous times that he had asked for proof that the money had gone into a trust account or had asked for contracts demonstrating the property had been purchased; but these never turned up, although he had been given to believe that through the endeavours of the accused there had been units bought off a plan.

14 At the time the calls were recorded, because of the inactions of the accused I have earlier mentioned, Mr Saitis was actually unsure whether or not any units had been purchased. He was concerned that he may lose the $194,000. He said he wanted to have his own evidence because the accused never provided him with the evidence that he had requested. One of the reasons he needed to make the recordings he said was that, “Otherwise it would be just my word against his.”

15 Mr Gelbert says that I should reach the same conclusion as the Court of Criminal Appeal in Sepulveda. But there is a very significant difference between the situation in Sepulveda and the situation before me. The victim of Mr Sepulveda’s sexual assault knew that an offence had been committed. But I find that at the time the recordings were made in this case by Mr Saitis he did not know whether the accused had committed an offence. He was unsure as to whether units had been purchased. His suspicions were aroused because of the failure to provide evidence. And he was concerned that there was only his word against the accused’s. But when Mr Saitis was making his recordings, he was not doing so in contemplation that he would give the recordings to the police. No police investigation was underway, certainly none that Mr Saitis knew about and, as I have said, Mr Saitis was not even sure that the offender had failed to do with his money what he said he would do.

16 Mr Gelbert says that the only inference that can be drawn from the evidence was that Mr Saitis at the time he made the recordings was going to give those recordings to the police. I do not find this fact at all and I find to the contrary. It is inconsistent with the terms of the conversations, transcribed as exhibit 1 on the voir dire.

17 I should also say that if Mr Saitis was engaging the accused in conversations intending to hand the recordings of those conversations to police I expect that the conversations would have taken a completely different turn. I would have expected repeated efforts by Mr Saitis, perhaps through the use of leading questions, to obtain admissions by the accused. But what is apparent in the conversation is that far from doing that, what Mr Saitis is trying to do is to ascertain what has happened to his money.

18 That is a very significant difference between Sepulveda and this case. At [139] Johnson J said,

“The ability of JD to approach police with his complaints, rather than move directly to himself record the conversation stands in the way of a finding, of reasonable necessity in this case.”

The situation presenting itself to Mr Saitis was very different indeed. Mr Saitis had a lawful interest in identifying where his money had gone. He had a lawful interest in obtaining evidence where it had gone and if it turned out that it had been used contrary to the understanding between him and the accused he had a lawful interest in proving that so that he could obtain his money back. He was concerned about his $194,000 and whether he would lose it. It was reasonably necessary for him to record those conversations to obtain evidence in an effort to prevent that occurring.

19 That finding means that it is not necessary for me to consider the terms of s 138 of the Evidence Act. However, in the event that I am wrong about the conclusion I have reached regarding the Listening Devices Act I will indicate why I would have admitted the evidence even if I had found the Listening Devices Act was breached and thus the evidence had been obtained improperly or in contravention of the Listening Devices Act.

20 Notwithstanding that the conversations do not specify with precision any particular development, they do refer to property development consistent with the allegation made by the Crown and inconsistent with what the accused told officers from the Department of Fair Trading. The evidence is thus probative, and significantly so.

21 The evidence is important because otherwise it is a case of word against word at least as far as each individual count is concerned. Mr Saitis’s recordings will bolster the Crown case.

22 The offences alleged are serious. Quite clearly if proved offences of this kind extending over such a lengthy period and involving such significant sums of money, which exhibit 1 in the trial demonstrates, were being used for the accused’s own purposes, suggest a significant period of custody in the event that the offences are proved.

23 Of course there is a difficulty in applying the terms of s 138 in circumstances where I have found that nothing illegal has been done. It is hard to assess the gravity of an impropriety or a contravention of a law when I have found that there was no breach of the law. But even if I proceed on the assumption that Mr Gelbert pressed upon me before, one which I have rejected, namely that the only inference that could be drawn is that Mr Saitis was going to give the recordings to the police, the impropriety or contravention is in making the recording himself rather than seeking the assistance of police or complaining to police so that they could perhaps have made an application for a warrant. It is possible, and I take it no higher than that, that police would have obtained a warrant and recorded the conversations in any case. It is possible of course that they would have failed. But it is a serious thing for someone to break the law and make such recordings rather than take a complaint to police who can then decide whether to apply for a warrant.

24 Mr Saitis gave evidence that he knew there was a risk that he was breaking the law in doing what he did.

25 No-one has suggested that I should look at any particular aspect of the International Covenant on Civil and Political Rights and nor has it been suggested that anyone is likely to prosecute Mr Saitis for what he has done.

26 The evidence could perhaps have been obtained without contravening the law if Mr Saitis had gone to the police and they had decided to make application for a warrant which had been granted.

27 So as required by the terms of s 138 I have taken into account all of the matters in subs (3) and ultimately would have concluded, if I had to consider it, that the desirability of admitting the evidence outweighs the desirability of not admitting the evidence.

28 The result is that the evidence will be admitted.

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