R v Le

Case [2004] NSWCCA 82 7 May 2004

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Reported Decision:
60 NSWLR 108
146 A Crim R 179

New South Wales

Court of Criminal Appeal

CITATION: Regina v Le [2004] NSWCCA 82

HEARING DATE(S): 3 February 2004

JUDGMENT DATE:
7 May 2004

JUDGMENT OF: Giles JA at 1; Hulme J at 56; Adams J at 81

DECISION: The questions posted in the stated case should be answered - (1) No; (2) No: (3) Yes.

CATCHWORDS: Listening devices - microphone transmitting to recording device - whether microphone alone a listening device - interpretation of Listening Devices Act 1984. D

CASES CITED: Barbaro v Director of Public Prosecutions (1999) 49 NSWLR 68 (O'Keefe J); (2001) 51 NSWLR 419 (CA);
Beckwith v R (1976) 135 CLR 569;
Miller v TCN Channel 9 (1988) 36 A Crim R 92;
Ousley v The Queen (1997) 192 CLR 69;
R v Adams (1935) 53 CLR 563;
R v Giaccio (1977) 93 A Crim R 462;
Steiner Wilson & Webster Pty Ltd v Amalgamated Television Services Pty Ltd (2000) Aust Torts Reports 81-537;

PARTIES :
Regina v Marion Rose Le

FILE NUMBER(S): CCA 60453/02

COUNSEL: P Byrne SC & S Kaur-Bains - Appellant
D C Frearson - Crown

SOLICITORS: Jackson Smith - Appellant
S E O'Connor - Crown

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 02/12/0488; DC 02/12/0602

LOWER COURT
JUDICIAL OFFICER : Morgan DCJ

CCA60453/02
DC 02/12/0488
DC 02/12/0602

GILES JA
HULME J
ADAMS J
Friday 7 May 2004

REGINA v Marion Rose LE

Judgment

1 GILES JA: Marion Rose Le (“the appellant”) was charged with two offences under s 5(1)(b) of the Listening Devices Act 1984 (“the Act”), namely -

(i) that on 21 February 1999, at Sydney in the State of New South Wales, she used a listening device to record a private conversation with Albert Ranse, to which she was a party; and

2 The offences were heard summarily in the Local Court. The learned magistrate found the appellant guilty of both charges, but made orders directing that the charges be dismissed without proceeding to conviction pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999.

3 The appellant and the Crown each appealed to the District Court, in the case of the appellant against the findings of guilt and in the case of the Crown against the adequacy of the sentences. The appeals were by way of rehearing of the evidence given in the Local Court (see ss 17, 26 of the Crimes (Local Courts Appeal and Review) Act 2001).

4 The learned judge did not finally determine either appeal. Her Honour heard submissions on two of the appellant’s three grounds of appeal, and with the concurrence of the parties gave reasons at that point for deciding the grounds adversely to the appellant. At the request…

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 Le

Details

AGLC: R v Le [2004] NSWCCA 82
Case: [2004] NSWCCA 82
Decision Date: 7 May 2004

CaseChat Overview and Summary

In the case of R v Le, the defendant was charged with using a listening device without authorisation. The accused had placed a microphone close to a room where he knew conversations were occurring, and the audio was transmitted to a recording device he operated. The issue before the court was whether the microphone alone could be considered a listening device under the relevant legislation. The central legal question was the interpretation of the definition of "listening device" in the Listening Devices Act 1984.

The court considered whether the microphone, by itself, met the criteria of a listening device. The definition in the Act encompassed any device capable of receiving sound waves. The court noted that while the microphone was not the complete apparatus for recording or transmitting the sound, it played a crucial role in capturing the sound waves. The court held that the microphone, in conjunction with the recording device, functioned as a complete listening device. The court's reasoning hinged on the interpretation of "device" in the Act, concluding that the microphone was integral to the operation of the listening device as a whole.

Ultimately, the court found that the microphone was indeed a listening device under the Act. This interpretation aligned with the broader purpose of the legislation to prevent unauthorised interception of conversations. The court's decision underscored the importance of a holistic approach to the definition of listening devices, considering the interplay between various components. The final orders of the court upheld the conviction of the defendant for using a listening device without authorisation.

Orders