R v Evans & anor - [1999] VSC 486

SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION

Not Restricted

ALAN BARTLE EVANS and	Defendants
GREGORY JAMES DOYLE

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	In the course of trial which commenced on 5 October 1999
DATE OF RULING:	13 October 1999
MEDIA NEUTRAL CITATION:	[1998] VSC 486

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Evidence – admissibility of tape recordings of telephone conversations – recordings by employer of conversations of employees had in course of employment – recordings not invasion by third party of privacy of conversations – Recordings not "interceptions" of communications under s.6(1) Telecommunications (Interception) Act 1979 (Cth) – evidence not inadmissible voire dire – standard of proof

Telecommunications (Interception) Act 1979 (Cth)

ss.6(1); 7(1)(a); 63(1)(b)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I.D. Hill QC with	Director of Public
Mr G.T. Chettle	Prosecutions (Commonwealth)
For the Defendant Evans	Mr M. Rozenes QC with	Corrs, Chambers Westgarth
Mr T. Thomas
For the Defendant Doyle	Mr P.J. O'Callaghan QC	Freehill Hollingdale & Page
with Mr P.D. Santamaria

HIS HONOUR:

The accused Alan Bartel Evans and Gregory James Doyle are each presented before this Court by an indictment signed on behalf of the Director of Public Prosecutions for the Commonwealth of Australia and filed on 3 August 1999. They are each jointly charged on two counts. On the first count they are charged that on 20 November 1995 in breach of s.1002G(2)(a) of the Corporations Law they entered into an agreement to purchase 30,000 shares in a public company listed on the Australian Stock Exchange, Mt Kersey Mining-N.L. On the second count they are charged that, again in breach of those provisions of the Corporations Law, on 20 November 1995 they entered into an agreement to purchase 136,000 shares in Mt Kersey Mining N.L.
Breach of s.1002G(2)(a) of the Corporations Law constitutes a criminal offence by reason of s.1311(1) of the Law. The crimes in respect of which each accused stand charged are commonly known as the crimes of "insider trading".
At the time relevant to these charges the accused Doyle was employed as an institutional dealer by the stockbroker, Were Stockbroking Limited, which traded as J.B. Were & Son (Weres). He was employed at the Weres Melbourne office. It is alleged by the prosecution that the parties to the agreement to purchase shares, the subject of the first count, were Alston Falls Pty Ltd and Weres; that the accused in entering into the agreement acted in concert; that Alston Falls Pty Ltd was a private company of Evans; that in entering into the agreement to purchase the shares, Evans placed an order with Doyle to purchase the relevant shares in the name of Alston Falls Pty Ltd; that Evans did so as "agent" for that company and that in entering into the agreement, Doyle did so as an employee, as an agent of Weres.
As to the second count, it is alleged by the prosecution that the parties to the agreement to purchase the relevant shares were MPI Trustees Pty…

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 Evans & anor

Details

AGLC: Content removed [1999] VSC 486
Case: [1999] VSC 486
Decision Date: 13 October 1999

CaseChat Overview and Summary

The case of R v Evans & anor involved the admissibility of tape recordings made by an employer of telephone conversations between employees. These conversations occurred in the course of their employment. The matter was heard in a court of law, and the key issue was whether these recordings could be admitted as evidence. The crux of the legal question was whether these recordings constituted an "interception" of communications under section 6(1) of the Telecommunications (Interception) Act 1979 (Cth). If they did, the recordings would be inadmissible. The court had to determine if the employer's actions amounted to an unlawful interception of private communications.

The court considered whether the employer's recordings were an invasion by a third party of the privacy of the conversations. It found that since the conversations were between employees and the employer had a legitimate interest in monitoring these communications as part of their employment, the recordings did not constitute an unlawful interception. Therefore, the recordings were not inadmissible under the Act. The court also addressed the standard of proof required to establish whether an interception had occurred, concluding that the prosecution had to prove this beyond reasonable doubt.

The court ruled that the recordings were admissible as evidence in the case. The employer's actions did not amount to an interception of communications under the Act, and thus the recordings did not violate any privacy rights. Consequently, the recordings could be used in the proceedings against the defendants. This decision clarified that employers have the right to monitor communications in the course of employment, provided it is done within the bounds of the law.

Orders