R v Le

[2004] NSWCCA 82

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

(ii) that on 22 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.

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 of the appellant, and without hearing submissions, she then made a “formal finding” in relation to the appellant’s third ground of appeal, stating “I have read the judgment of the learned Magistrate, I have looked at all the material and I would agree with his findings with respect to that ground of appeal.” The Crown’s appeal was not dealt with.

5 On the appellant’s application and pursuant to s 5B of the Criminal Appeal Act 1912, by which any question of law arising on an appeal to the District Court in its criminal and special jurisdiction may be submitted to the Court of Criminal Appeal for determination, the judge submitted three questions of law to this Court. Reflecting the appellant’s three grounds of appeal, the questions were expressed -

“26. Did I err in law in holding that, in the circumstances of these alleged offences, the microphone was a listening device within the meaning of section 3(1) of the Act, having regard to the fact that the microphone of itself was incapable of recording a private conversation.

27. Did I err in law in holding that the appellant, in using the microphone in the circumstances of these alleged offences, used a listening device within the meaning of section 5(1)(b) of the Act to record private conversations.
28. Did I err in law in holding, in the circumstances of these alleged offences and the factual findings as to the Appellant’s conduct, that the Appellant had not established the statutory defence contained in section 5(3)(b)(i) of the Act.”

Background

6 The appellant was a friend of Mr Phuong Ngo, who had been charged with and was subsequently convicted of the murder of Mr John Newman. The appellant claimed that in April 1998 Mr Albert Ranse told her that he, Ranse, had shot Newman. According to the appellant, Ranse told her that she could never use what he told her against him because it would be her word against his.

7 In co-operation with a friend who worked for Channel 9, on 21 February 1999 video cameras were fitted into the appellant’s car, one in the back of the car and the other in the dashboard, and a microphone was attached to the appellant’s jacket. On that day and on the next day the appellant picked Ranse up in her car. The jacket was placed over the back of the driver’s seat, and when they left the car the appellant took the jacket with her. Unknown to Ranse, his conversations with the appellant in the car and when they left the car were recorded, as to the conversations within the car in images and as to all the conversations in sound. The evidence in the Crown case included videos containing the images and sound.

First question: was the microphone a listening device?

8 “Listening device” is defined in s 3(1) of the Act as meaning “any instrument, apparatus, equipment or device capable of being used to record or listen to a private conversation simultaneously with its taking place”. “Listen to” is defined as including “hear”.

9 At the end of the prosecution case the Crown particularised as the listening device the microphone on the appellant’s jacket. The circumstances and precise terms of the particularisation were not revealed in the materials before us.

10 The judge found, in substance, that the microphone itself did not record the conversations but, because the videos contained in sound the conversations when the appellant and Ranse left the car, the microphone transmitted the conversations to their recording equipment. Her Honour also noted evidence that one of the Channel 9 men testing the equipment said to the appellant words to the effect, “We are recording in our car as well”. Her Honour referred to use of the microphone enabling the conversations to be recorded “perhaps not by the device [the appellant] was wearing, but by other means”; she said it was apparent that it was “by … the use of that microphone that the conversation was [sic] able to be recorded by other means”; and she said that it was “quite apparent from the evidence that it was by [the appellant’s] use of that microphone that the conversation was able to be recorded by other means”.

11 The appellant submitted to the judge that, because the microphone was not itself capable of recording the conversations between the appellant and Ranse, but was no more than a transmitter to other recording equipment, it was not a listening device within the meaning of the Act. Since the Crown had particularised the microphone as the listening device, it was said, the appellant could not be guilty of using a listening device to record the conversations. The judge considered that it was not necessary for a listening device actually to record the conversation; she thought it sufficient that the listening device provided the means for the conversation to be recorded. She considered that her opinion was supported by Miller v TCN Channel 9 (1988) 36 A Crim R 92.

12 It can be seen that this question is driven by the Crown’s particularisation of the microphone as the listening device. Had the Crown particularised as the listening device the microphone and the recording equipment to which it transmitted, the appellant’s submission would not have been open. It may be that the particularisation should have been understood in that way, as being intended to identify the microphone rather than the video cameras as the equipment picking up the sounds while leaving as common ground that there was recording equipment on which the sounds picked up were recorded.

13 However, the Crown did not submit to the judge that the particularisation should have been understood in that way. Nor did it so submit in its written submissions in this Court, those submissions asserting that the microphone “of itself, qualified as a listening device under the Act”. In oral submissions it was suggested, although in support of the proposition that “any deficiencies in particulars in those type of matters” can be ignored, that it was common ground that the Crown case was that the microphone transmitted to recording equipment. Even if so, I do not think that overcomes the particularisation. Had it done so, the course of the appeal and this determination would have been different. In my opinion, the Crown must be taken to have tied its case to the microphone alone being a listening device, and the appellant is entitled to take advantage of the way the particularisation apparently was expressed and understood.

14 Miller v TCN Channel 9 does not support the judge’s opinion. One person carried a microphone which transmitted the conversation to recording equipment elsewhere carried by another person. Finlay J considered that the listening device was “a composite of two parts” (at 95; 105), being the microphone and the recording equipment, and that each of the persons was using the listening device to record the conversation. The particularisation in the present case excludes one of the parts, and the case is not authority that the microphone carried by the appellant was alone a listening device.

15 Indeed, Miller v TCN Channel 9 is against the judge’s opinion so far as Finlay J said (at 95), with reference to the definition of a listening device, “For equipment to be ‘capable of being used to record’ a private conversation it needs to hear the conversation (in this case by microphone) and to retain what it has heard (in this case by a tape).” However, it was sufficient for his Honour’s reasoning that the listening device encompassed both the microphone and the recording equipment. His Honour was not concerned with whether the microphone or the recording equipment alone was a listening device.

16 The appellant repeated the submission made to the judge that, because the microphone was not capable of recording anything, it was not capable of being used to record a conversation. The definition of a listening device refers to an instrument etcetera capable of being used “to record or listen”, so it must also be asked whether the microphone was capable of being used to listen to a conversation. The submission would extend to that, since a microphone does not enable a conversation to be heard unless there is sound equipment to which it is connected or transmits whereby the sounds it picks up are reproduced. The Crown submitted that “to” includes aim, purpose and intention, and that the microphone was a listening device because it was capable of being used for the purpose of recording or listening to a conversation, albeit together with recording or sound equipment. The arguments did not travel much beyond the statements of these positions, and we were not referred to any other decisions in point.

17 In R v Giaccio (1997) 93 A Crim R 462 a “microphone or transmitter” was installed in one room whereby the police in another room could hear and record what was going on in the room. Cox J, with whom Millhouse and Perry JJ agreed, said (at 472) that it was “clear that the surveillance items in room 19, and possibly certain of the back-up equipment as well”, were listening devices within the meaning of the Listening Devices Act 1972 (SA). The definition was similar to that in the Act, although including “associated equipment (if any)”. There was not the particularisation driving the question in the present case, and there does not seem to have been any issue over satisfaction of the definition. It is difficult to see any substantial support in the case for the judge’s opinion.

18 Steiner Wilson & Webster Pty Ltd v Amalgamated Television Services Pty Ltd (2000) Aust Torts Reports 81-537 was a defamation case. An entranton premises was fitted with a “hidden camera and transmitting device” (at [21]), also referred to as a hidden (at [315]) microphone and camera. The covert recorded conversation was later broadcast. In connection with exemplary damages the judge considered whether there has been a breach of the Listening Devices Act, and the judge said (at 319) that “[t]he listening device with which the second defendant was fitted would plainly fall within this definition”. Again, however, there was not the particularisation driving the question in the present case, and there does not seem to have been any dispute over satisfaction of the definition.

19 In some other legislation the definitions may address the present question. The South Australian Listening Devices Act has been mentioned above. In s 219A of the Customs Act 1901 (Cth) “listening device” is defined to mean any instrument etcetera “capable of being used, whether alone or in conjunction with any other instrument …to record or listen to spoken words” (emphasis added). On the one hand, this might suggest that a microphone can readily enough be described as a listening device although some other equipment is necessary for there to be recording or listening. On the other hand, it suggests that the extension by the definition, not found in the Act, is necessary before the description is appropriate. I do not think regard to the other definitions greatly assists. The answer to the question must be found in the Act.

20 The Act serves to protect against unjustified invasions of privacy by recording or listening to private conversations, something now readily done through electronic aids. Its beneficial purpose should be recognised in its interpretation, but where the purpose is achieved by the creation of criminal offences uncertainty in the reach of the definition should be decided by construing it in favour of the alleged offender. Further, the Act also authorises intrusions into property and privacy, in particular intrusion by the state pursuant to warrants. Such legislation is to be strictly construed, although without being unduly technical (see Ousley v The Queen (1997) 192 CLR 69 at 143 per Kirby J; Barbaro v Director of Public Prosecutions (1999) 49 NSWLR 68 at 73 (O’Keefe J); (2001) 51 NSWLR 419 at 422 (CA)). Again, uncertainty in the reach of the definition should be decided by construing it against the would-be intruder and, the use of a listening device being common to both the protection and the authorisation, the same construction will apply in relation to the offences. The definition of a listening device should be construed restrictively rather than liberally.

21 It is necessary to see the part played in the Act by a listening device as defined.

22 Section 5(1) of the Act provides -

“(1) A person shall not use, or cause to be used, a listening device:

(a) to record or listen to a private conversation to which the person is not a party; or

(b) to record a private conversation to which the person is a party.”

23 In s 5(2) and (3) circumstances are stated in which s 5(1) as a whole or s 5(1)(b) do not apply, all in terms of the use of a listening device.

24 Section 6(1) of the Act prohibits knowing communication or publication to any other person of a private conversation, or a report of a private conversation, that has come to a person’s knowledge “as a result, direct or indirect, of the use of a listening device in contravention of section 5”. In s 6(2) circumstances are stated in which s 6(1) does not apply.

25 Section 7(1) of the Act prohibits a person who has been a party to a private conversation and has “used, or caused to be used, a listening device to record the conversation (whether in contravention of section 5 or not)” from communicating or publishing to any other person “any record of the conversation made, directly or indirectly, by the use of the device”. Again, in s 7(2) circumstances are stated in which s 7(1) does not apply.

26 Section 8(1) of the Act prohibits possession of a record of a private conversation knowing that it has been “obtained, directly or indirectly, by the use of a listening device in contravention of section 5”. Again, in s 8(2) circumstances are stated in which s 8(1) does not apply.

27 Section 9 of the Act prohibits manufacture, supply and possession of “a listening device for use in contravention of Section 5”.

28 Sections 12 to 14 are concerned with admissibility in evidence of a private conversation which has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device.

29 An important circumstance in s 5(2) is where a listening device is used pursuant to a warrant granted under Pt 4 of the Act, ss 15 to 21. Very many warrants are issued on application by law enforcement authorities. There may be authorisation by warrant of the “use of a listening device” for the purpose of investigation of an offence or of enabling evidence to be obtained of the commission of the offence or the identity of the offender (ss 16(1), 18(1)). Notification, reporting and information requirements as to the use of the listening device are stated (ss 17, 19, 21). Of particular present significance, s 16 addresses as part of what may be authorised the “installation of a listening device on any premises” and entry onto the premises for the purposes of installation and retrieval (s 16(3)) and requires that the warrant specify “the premises on which a listening device is to be installed, or the place at which a listening device is to be used, pursuant to the warrant” (s 16(4)(e)). Section 16A deals further with retrieval of the listening device from the premises on which it has been installed.

30 The common concept in these provisions is the use of a listening device where the listening device has been used to record or listen to a conversation (ss 5(1), 7(1), 8(1)) or may be used to record or listen to a conversation (ss 9, 16(1), 18(1)). The prohibition in s 5(1) looks to the result of the use of the listening device, that is, the recording of or listening to the private conversation. Each of ss 6(1), 7(1) and 8(1) then takes it that there has been a recording of or listening to a conversation, and guards against dissemination or perpetuation of what has been recorded or heard. Sections 12 to 14 also take it that there has been a recording of or listening to a private conversation, and guard against the use in evidence of what has been recorded or heard. Section 9 supplements these provisions by seeking to cut off the source of devices for use in achieving the result of recording or listening to a private conversation. Sections 16(1) and 18(1) are also directed to the use of devices in achieving the result of recording or listening to a private conversation.

31 If the use of a microphone does not result in the recording of or listening to a private conversation, because there is no recording equipment or sound reproducing equipment to which it is connected or transmits, there will be no contravention of s 5(1) and there can be no contravention of ss 6(1), 7(1) and 8(1). There can be no occasion for ss 12 to 14 to apply to evidence of the conversation. Possession of a microphone alone could more readily be possession of a listening device, through the microphone being part of what is required to achieve the result of recording or listening to a private conversation. But ss 16(1) and 18(1) do not readily extend to authorising the use of a microphone alone, because the microphone alone will not result in recording or listening to a conversation whereby information or evidence comes to the person obtaining the warrant.

32 As is apparent from the reasons of Hulme J, which I have had the advantage of reading in draft, the question is finely balanced. I recognise the force of his Honour’s reasoning. I have come to the opinion, however, that the preferable view is that the part played in the Act by a listening device as defined is not as something used for the purpose of recording or listening to a private conversation whether or not the result is achieved. It is something used in achieving that result.

33 Although the definition of a listening device refers to capacity and gives the alternatives of recording or listening, it involves use to achieve the result. A microphone for which there is no recording equipment or sound reproducing equipment does nothing. Its use alone can not be use to record or listen to a private conversation, and alone it is not capable of being used to record or listen to a conversation. That it can be used to record or listen to a conversation if connected with or transmitting to recording equipment or sound equipment is of no consequence for s 5(1) and its associated provisions where the use of the microphone must have resulted or result in the recording of or listening to the conversation. It does not advance the operation of the Act to regard something which can not result in a recording of or listening to a conversation as a listening device.

34 I therefore do not accept the Crown’s submission that the microphone was a listening device because it was capable of being used for the purpose of recording or listening to a conversation, albeit together with recording or sound equipment. My conclusion is in accord with the restrictive rather than liberal construction to which I have referred. If use of a device for the purpose of recording or listening to a conversation is to be an offence, although the use can not without more result in the recording of or listening to the conversation, that should be clearly stated. Intrusion into property and privacy by authorising the use of such a device is unwarranted if without more there will be no advantage from gaining information or evidence.

35 With a qualification, there is no difficulty in a listening device comprehending a listening device which is a composite of two parts, as in Miller v TCN Channel 9. But for the aberrant particularisation in this case, the present question would not have arisen. The qualification is that ss 16(3) and (4) and 16A of the Act may contemplate that the listening device will be installed on the premises in its entirety and used in its entirety at the one place, whatever that entirety may be. If that be correct, unless the microphone alone is a listening device a warrant can not be granted for the installation of a microphone transmitting to recording equipment not on the premises or at the place. However, I do not see why in authorising the use of a composite listening device the warrant can not distinguish between its parts and separately specify the premises and the place for the parts. It would be odd if one warrant were needed for a microphone and another for the recording or sound equipment to which it is connected or transmits, where they are both required for the recording of or listening to the conversation, and s 16 is more congruent with one warrant only in fulfilling the purpose of investigation or enabling evidence to be obtained.

36 The Crown submitted that if the microphone was not a listening device the variance between the charge as particularised and the evidence can be disregarded, or it can be permitted to provide further particulars. Under s 5B this Court may “make any such order or give any such direction to the District Court as it thinks fit”. In my opinion, that refers to an order or direction consequent upon determining the question of law submitted to this Court. Whatever could have been done in the Local Court or the District Court, this Court is limited to determining the question of law as submitted, including on the stated particularisation. It may be that inherent in the submission was a request for remission to the District Court for that Court to be asked to act upon a different particularisation. I would decline so to order. The appellant has undergone an appeal and this determination responding to a Crown case that the microphone of itself was a listening device. It would be unjust if she were now to face a different case.

37 In my opinion the question should be answered yes. It follows that the findings of guilt and the sentences can not stand. The summons should be dismissed.

Second question: did the appellant use the microphone?

38 It is not necessary to determine this question, since in any event the findings of guilt and the sentences can not stand. It is nonetheless appropriate briefly to explain why I consider that it should be answered no.

39 The appellant submitted to the judge that she was not using a listening device, relying on Barbaro v Director of Public Prosecutions in which it was said that the undercover officer to whom listening devices were fitted by other police officers was a “mere carrier” (at 75) and did not use the listening devices. The judge appears to have regarded Barbaro v Director of Public Prosecutions as turning on its facts, saying that it was there not considered that the way in which the listening devices were fitted amounted to a finding that the undercover officer was using the listening devices within the meaning of the Act. Her Honour regarded the facts in the present case as equivalent to those in Miller v TCN Channel 9, where as has been seen the person carrying the microphone was held to have used the listening device. She found that the appellant “was using a device in the way in which Miller’s case indicated”.

40 For present purposes it should be assumed that the microphone was a listening device. The appellant accepted that the question should be understood as asking whether it was open to the judge to find that the appellant was using the listening device.

41 Whether a person is using a listening device to record a conversation is a question of fact. It was found that the microphone was attached to the appellant’s jacket in cooperation with the friend who worked for Channel 9. The appellant had her own reasons for having her conversations with Ranse recorded: it was found that she “was trying to obtain solid evidence as to what she alleges Ranse told her previously”, in order to protect herself and her credibility. She had control to the extent that her jacket was on the back of the driver’s seat and she took it with her when she and Ranse left the car. The facts were quite different from those in Barbaro v Director of Public Prosecutions, and in my opinion it was open to the judge to find that the appellant used the listening device.

Third question: the statutory defence

42 Again, this question need not be answered but it is appropriate briefly to explain why I consider that it should be answered no.

43 The appellant relied on s 5(3)(b)(i) of the Act, the effect of which was that she was not guilty if the recording of the conversations with Ranse was “reasonably necessary for the protection of [her] the lawful interests”. No submissions were made to the judge, this being the subject of the formal finding. The magistrate’s findings with which the judge agreed were -

“49. In my view, the defendant had no reasonable necessity to do what she did in the particular circumstances of the time that the taping took place. She could have and should have gone to the police with the information that she had. If, as a consequence of her going to the police, nothing was done or she was not believed, then it is possible that a court could come to the conclusion that the recording was reasonably necessary for the protection of the lawful interests of the defendant.
50. On the evidence before me, I am satisfied that Mr Ranse did say something to the defendant that could be taken as meaning that he was involved in the murder of John Newman. I am satisfied that that occurred in April 1998. I am not satisfied that in using the Listening Device that the defendant was acting out of fear of Mr Ranse, I am satisfied that she was trying to obtain solid evidence as to what she alleges he told her previously.
51. I am not satisfied that the establishing of those matters mentioned by Mr Byrne SC in his opening of the defence case mentioned in paragraph 20 above, constitute the defence mentioned in s 5(3)(b)(i) of the Listening Devices Act that the defendant’s actions were reasonably necessary for the protection of her lawful interests. I am of opinion that if I were to find in favour of the defendant on that point, then the whole object of the Listening Devices Act would be largely ineffective.
52. Having come to that conclusion, I think it is only proper to say, however, that if it were held elsewhere that those matters mentioned in Paragraph 20 above did constitute a defence, then the defence has established each matter on the balance of probabilities.”

44 Paragraph 20 of the magistrate’s reasons, imported into these findings, read -

“20. After I held that there was a prima facie case against the defendant, Mr Byrne SC opened the defence case with the following:
The evidence that will be called principally from Marion Le will be with a view to establish that she had been told by Mr Rance that he was involved in the murder of John Newman, that she had also been told by him that if she were ever to raise that issue publicly, if she were to tell anyone else about it then nobody would believe her, that it would in effect be his word against hers.
In those circumstances there were a number of grounds on which it will be contended it was reasonably necessary for the protection of the lawful interests for Marion Le to record conversations that she had with Mr Rance. Very shortly, it is submitted three bases on which it was reasonably necessary. The first is to protect her credibility generally in the event that the truth of what she was (sic) were challenged.
The second is that if she were ever to have to give any evidence in a Crown proceeding about the matter which was at least a potential outcome of disclosing it to others or to disclosing it generally, then the fact of the record would support her credibility in those circumstances in those proceedings.
But the third matter is that it might be seen reasonably necessary to have that material in order to protect herself against the possibility that she herself may be exposed to being charged with making false accusations against other people about matters of considerable seriousness. Those are the three essential grounds on which it is contended that the so-called defence under s 5 of the Listening Devices Act on the balance of probability has been established.”

45 The course of inviting and making a “formal finding” should not be condoned. The judge was entitled to the benefit of submissions from the appellant and the Crown, and this Court is entitled to findings made with the benefit of the submissions.

46 The appellant again accepted that the question should be understood as asking whether it was open to the judge to find that the appellant had not established the statutory defence. She accepted that it was necessary for her to persuade this Court that her Honour was bound to find that recording the conversation with Ranse was reasonably necessary for the protection of her lawful interests.

47 The judge found that each of the matters relied on for lawful interests had been established on the balance of probabilities. One was to protect the appellant’s credibility generally. The second was to support her credibility if she had to give evidence “in a Court proceeding about the matter”. The third was to protect herself against exposure to “being charged with making false allegations against other people about matters of considerable seriousness”. It had then to be asked whether recording the conversations was reasonably necessary for the protection of the interests. Different minds could give different answers in the application of reasonable necessity. I am quite unable to conclude, however, that only an affirmative answer was possible. Protection of credibility generally or in the event of giving evidence plainly did not dictate an affirmative answer. Concern to have a supporting record before making allegations is of more significance, but in my opinion it was open to the judge to regard it as insufficient.

Orders

48 I propose that the questions be answered -

1. Did I err in law in holding that, in the circumstances of these alleged offences, the microphone was a listening device within the meaning of section 3(1) of the Act, having regard to the fact that the microphone of itself was incapable of recording a private conversation.

Answer: Yes.

2. Did I err in law in holding that the appellant, in using the microphone in the circumstances of these alleged offences, used a listening device within the meaning of section 5(1)(b) of the Act to record private conversations.

Answer: No.

3. Did I err in law in holding, in the circumstances of these alleged offences and the factual findings as to the Appellant’s conduct, that the Appellant had not established the statutory defence contained in section 5(3)(b)(i) of the Act.

Answer: No.

49 I further propose that the findings of guilt and the sentences imposed on the appellant be set aside and that it be ordered that the summonses be dismissed.

50 HULME J: The Appellant was charged with two offences “that on …she used a listening device to record a private conversation with Albert Ranse to which she was a party. The magistrate who heard the charges found the offences proved. The Appellant appealed to the District Court and then sought that Judge Morgan state a case for the opinion of this Court. It is with the questions asked in that stated case that these reasons are concerned.

51 The Director of Public Prosecutions particularised the listening device as the listening device on the person of the Appellant.

52 The evidence established that a device described as a “mike” was attached to a jacket in the Appellant’s possession when she was talking to Mr Ranse. It seems to have been common ground that it was to this device that the DPP’s particularisation referred. The Appellant was not responsible for physically attaching the device to her clothing. That was done by “Channel 9” pursuant to an arrangement the Appellant had made with an employee of that organisation. While the Appellant was in a motor vehicle with Mr Ranse the jacket was placed over the back of the driver’s seat and when she and Mr Ranse left the vehicle the Appellant took the jacket with her. It was found that the Appellant had the purpose, in the course of acting as she did, of obtaining evidence as to what she alleged Mr Ranse had told her previously.

53 It was also found that conversations between the Appellant and Mr Ranse occurring both in and out of the car were recorded and that this recording came about through or by means of the device attached to the Appellant’s jacket. There was no evidence that the device itself could record a conversation and indeed the description “mike” indicates it could not. A microphone is a device which converts or translates sound waves to electrical current or radio waves.

54 The questions posed in the case stated by Judge Morgan were:-

“(1) Did I err in law in holding that, in the circumstances of these alleged offences, the microphone was a listening device within the meaning of Section 3(1) of the Act, having regard to the fact that microphone of itself was incapable of recording a private conversation.
(2) Did I err in law in holding that the Appellant, in using the microphone in the circumstances of these alleged offences, used a listening device within the meaning of Section 5(1)(b) of the Act to record private conversations.
(3) Did I err in law in holding, in the circumstances of these alleged offences and the factual findings as to the Appellant’s conduct, that the Appellant had not established the statutory defence contained in Section 5(3)(b)(i) of the Act.

55 The Act is the Listening Devices Act 1984 which, inter alia, provides:-

“3(1) In this Act, except insofar as the context or subject-matter otherwise indicates or requires:
listening device means any instrument, apparatus, equipment or device capable of being used to record or listen to a private conversation simultaneously with it taking place.
5(1) A person shall not use, or cause to be used, a listening device:
(a) to record or listen to a private conversation to which the person is not a party, or
(b) to record a private conversation to which the person is a party

(2) Subsection (1) does not apply to:-
(a) The use of a listening device pursuant to a warrant granted under Part 4,
(b) …
16(1) Upon application made by a person that the person suspects or believes:
(a) that a prescribed offence has been, is about to be or is likely to be committed, and
(b) that, for the purpose of an investigation into that offence or of enabling evidence to be obtained of the commission of the offence or the identity of the offender, the use of a listening device is necessary,
an eligible Judge may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of the listening device.
(3) Where a warrant granted by an eligible Judge under this section authorises the installation of a listening device on any premises, the eligible Judge shall, by the warrant:
(a) authorise and require the retrieval of the listening device, and
(b) authorise entry onto those premises for the purpose of that installation and retrieval.
(4) A warrant granted by an eligible Judge under this section shall specify:
(d) the name of any person who may use a listening device pursuant to the warrant and the persons who may use the device on behalf of that person,
(e) where practicable, the premises on which a listening device is to be installed, or the place at which a listening device is to be used, pursuant to the warrant,
(f) …

56 Section 16 is contained within Part 4 of the Act.

57 Considered in isolation, the words in the definition of “listening device” “capable of being used to record or listen” are apt to refer either to a capacity of being used for the purpose of recording or listening, or alternatively, to a capacity of being used to actually record or listen. I see nothing in the terms of the definition itself which argues for one of these alternatives in preference to the other. (But for the alternative of “listen”, the use of the expression “capable of being used to record” rather than the simpler expression “capable of recording” would argue in favour of the first of these alternatives but the composite expression and the incapacity of equipment and the like to listen, precludes the use of this relatively simple argument.)

58 The similarity in expression in Section 5(1) means that in attempting to decide on the meaning of “listening device”, regard should be had to the terms of that sub-section also. Again, there are the two possible ways in which the provision may be interpreted. Putting aside elements of the sub-section not bearing on the difference, the sub-section may be regarded as meaning either:-

(i) A person shall not use a listening device in order to record or listen, i.e. for the purpose of recording or listening, or alternatively,
(ii) A person shall not use a listening device to actually record or listen.

59 It may be noted that the sub-section does not prohibit the recording of, or listening to, a private conversation and this, whether or not the person recording or listening is a party to the conversation. The prohibition is on the use of, or causing to be used, a listening device to, as the case may be, record or listen. This distinction to my mind argues in favour of the first of the alternatives referred to in the immediately preceding paragraph.

60 On the other hand, because no damage or actual intrusion of privacy occurs unless not only is a listening device used, but recording or listening occurs and because the sub-section is one creating an offence, there is a deal to be said for the view that the narrower interpretation is to be preferred. While one may say that the object of the Act is to deter interferences with privacy – and thus a wider construction should be preferred – actions should not be regarded as crimes or offences unless Parliament has unambiguously said so – R v Adams (1935) 53 CLR 563 at 567-568; Beckwith v R (1976) 135 CLR 569 at 576.

61 Apart from these matters, I see nothing in the terms of the provisions to which I have referred which argues for one of the alternatives I have mentioned rather than another.

62 Arguably however the terms of s16 which I have quoted provide a firmer guide. It may be taken that when the Listening Devices Act was drafted and passed by Parliament, this occurred against the background of the then existing state of knowledge of the way private conversations could be listened to or recorded. One may take judicial notice of the fact that the state of knowledge included that some equipment directed to such an end would be complete in itself and that other such equipment would consist of separate components separated by a greater or lesser distance. Secrecy is clearly envisaged and equipment adapted to both receiving and recording conversations is likely to be somewhat larger than equipment adapted to only the receipt and transmission of sounds. In the definition of listening device simultaneous recording or listening is also envisaged and it cannot have been thought that the installation of a device on premises would also have involved the installation of the persons who were to use it.

63 Thus it seems to me beyond argument that when by Section 16 Parliament provided that a warrant could authorise the installation of a listening device on particular premises it was authorising not only the installation of a device which was complete in itself but also one or more components of such a device. Thus in Section 16 “a listening device” includes not only a complete unit but one or more component parts thereof. That argues for a similar meaning being given to the term in s 3.

64 It may be acknowledged that one could construe the definition of “listening device” as limited to devices complete in themselves and then adopt the approach that where the expression is used in Section 16 “the context or subject matter … indicates or requires” that the expression means something different and includes individual components of a listening device. However, it seems to me a more satisfactory interpretation of the expression “listening device” if it is one which does operate throughout the Act, particularly in circumstances where there is nothing in the words of the definition itself which argues against this approach.

65 Accordingly, notwithstanding that a microphone is of itself incapable of recording a private conversation, uninstructed by authority I would regard it as a listening device within the meaning of Section 3(1) of the Act. It answers the description “capable of being used to record or listen”, i.e. for the purpose of recording or listening. To authority wherein the interpretation of the Listening Devices Act has been considered I now turn.

66 In Miller v TCN Channel Nine (1988) 36 A Crim R 92 at 95, Finlay J remarked:-

“For equipment to be “capable of being used to record” a private conversation it needs to hear the conversation (in this case by microphone) and to retain what it has heard (in this case by a tape). Such equipment is a composite of two parts, namely microphone plus tape. These parts may be physically attached to each other. In this case they were separated.”

67 His Honour’s remarks were obiter, his Honour going on to point out that in that case there was a tape (recorder) in a room close by and that the two items constituted a listening device. Furthermore his Honour does not seem to have considered the argument detailed above arising on the terms of s16

68 In R v Giaccio and Edington (1997) 93 A Crim R 462 at 472 the facts were also that a microphone or transmitter and a camera were located in one room, room 19, and recording equipment in another. Cox J, with whom the other members of the South Australian Court of Criminal Appeal agreed, said:-

“As I have said, it is clear that the surveillance items in room 19, and possibly certain of the back-up equipment as well, were listening devices within the meaning of the Act.”

69 A “listening device” in the South Australian Act is defined as:-

“(A)ny electronic or mechanical instrument, apparatus, equipment or other device capable of being used to overhear, record, monitor or listen to a private conversation or words spoken to or by any person in private conversation but does not include a hearing aid…”

70 For present purposes that definition is not significantly different from that in the New South Wales Act. However, what Cox J had in fact said earlier (at p470) was, “There is no doubt that the microphones or transmitter and tape recorders that were used here were listening devices within the meaning of the Listening Devices Act”. It is not apparent that there was in fact any debate as to the matter and in the circumstances I regard Cox J’s remarks as but slight support for my conclusion.

71 In Steiner Wilson & Webster v Amalgamated TV Services & Anor (2000) Aust Torts Reports 81-537 at [319], Crispin J said of a microphone, “the listening device with which the Second Defendant was fitted would plainly fall within” a definition of “listening device” which was in terms:-

“(A)ny electronic or mechanical instrument, apparatus, equipment or other device capable of being used to overhear, record, monitor or listen to a private conversation or words spoken to or by any person in private conversation.”

72 Again it is not apparent that there was any debate about the matter and , while I take comfort from Crispin J’s remarks, their weight is slight.

73 The Court was not referred to any other decisions where the meaning of “listening device” expressed in terms similar to those in the New South Wales Act has been considered. In those circumstances and despite the remarks of Finlay J, I propose to act in accordance with the reasoning and conclusion I have set out above. The first question posed in the stated case should be answered “No”.

74 The second question should also be answered “No”. As a simple matter of interpretation or operation of the words used, it seems to me that if, knowing its transmissions are being recorded and for the purpose of that occurring, I carry a microphone into a private conversation, I am using that microphone “to record” the conversation. A fortiori is this so if the Appellant had the purpose in the course of acting as she did of obtaining evidence as to what she alleged Mr Ranse had told her previously. In the circumstances of this case it does not matter whether one construes the expression “to record” as indicating merely purpose or actual recording.

75 The argument that this conclusion should not be reached was based upon some remarks of O’Keefe J in Barbaro v DPP (1999) 49 NSWLR 68 encapsulated in the following passage (at 75):-

“Nanai did not fit the devices to himself nor did he activate the devices, nor did he operate them. All of these things were done by police officers whose names were included as persons who may use the device on behalf of Constable Littame. Likewise Nanai did not record the conversations in which he took part nor did he cause them to be recorded on the tape recorder affixed to him or listened to or recorded at the listening post to which the transmitter was directed. In relation to the devices he was a mere carrier and in the circumstances I am of the opinion that this does not constitute use by him of the devices within the meaning of s16(4)(d) of the Act.”

76 On appeal, Commissioner of Police v Barbaro (2001) 51 NSWLR 419, Handley JA, with the concurrence of other members of the Court said (at 421) that he agreed with the reasoning of O’Keefe J and adopted the relevant part of his Honour’s reasons.

77 It is unnecessary for me to express any opinion on the question whether his Honour’s conclusion was correct in light of the facts of the case before him. Indeed in light of Handley JA’s remarks it would probably not be appropriate to do so. It is sufficient to say that in the circumstances of this case it is impossible to regard the Appellant as a “mere carrier”. Nor do his Honour’s remarks cause me to doubt the conclusion at which I have arrived. Indeed on the previous page O’Keefe J had said:-

“In s16(4)(d) the word “use” is a verb. As a verb its ordinary meaning is to cause to act, put into operation, serve for a purpose or put to some purpose.”

78 In this case the Appellant by her use and carrying of her jacket to which the device was affixed and doing so for purposes of her own (whether or not she was also serving Channel 9’s interests), “put to some purpose” the device.

79 So far as question 3 is concerned, I agree with Adams J that this question should be answered, “Yes”. I agree also with his Honour’s reasons insofar as they relate to the particular circumstances in which the Appellant found or placed herself in this case. It is unnecessary to go further and I have grave doubts whether as a general proposition, the recording of a conversation by a party to it in order to ensure there is an irrefutable record of it could be regarded as protected by s5(3)(b)(i).

80 In summary, in my view the questions posed in the stated case should be answered:-

(1) No.
(2) No.
(3) Yes.

81 ADAMS J: I have had the advantage of reading the judgments of Giles JA and Hulme J in draft. If I may say so with respect, their Honours’ judgments demonstrate how evenly balanced the arguments are both for and against the conclusion that a microphone, considered alone, is not a listening device within the meaning of s 3(1) of the Listening Devices Act 1984 (the Act). In the result, however, I am persuaded that the view expressed by Hulme J is correct, for the reasons advanced by his Honour. Wherever a microphone is intended to be used in conjunction with a recording or listening device, it is itself a “listening device” within the definition. I also agree with the view of Giles JA and Hulme J that it was open to the judge below to find the appellant had used the microphone. In respect of both these conclusions, I agree also with their Honours’ reasons.

82 I regret, however, that I am unable to agree with the conclusion of Giles JA concerning the possible application of the statutory defence. Section 5(1) of the Act makes it an offence, in substance, to covertly record a private conversation even by one of the parties to that conversation. Where, however, one of those parties records the conversation, the prohibition contained in s 5(1) does not operate if “the recording of the conversation is reasonably necessary for the protection of the lawful interests” of that person: s 5(3). As Giles JA has pointed out, the learned judge at first instance found that the appellant did have a lawful interest in protecting her credibility generally, to support her credibility if she had to give evidence in a court proceeding about the matter and to protect herself against exposure to being charged with making false allegations against other people about matters of considerable seriousness.

83 The learned judge accepted the conclusion of the magistrate who had first determined the matter that the appellant “had no reasonable necessity to do what she did in the particular circumstances of the time that the taping took place…[but that she] could have and should have gone to the police with the information that she had.” I consider that this was to impose the statutory test at the wrong point. There can be no doubt that the appellant had a legal right to attempt to engage Mr Ranse in conversation. The question, therefore, was not whether it was reasonably necessary for her to conduct the conversation but should, instead, have gone to the police but rather, whether having decided to do so, it was reasonably necessary for her to record that conversation for the reasons that she gave. It is also clearly the case that, if Mr Ranse had made any admissions connected with the death of Mr Newman, the appellant would have been under a duty to report it, possibly even a legal duty under s 316 of the Crimes Act 1900, certainly a moral duty. Although, in that event, it could not be said that it was absolutely necessary that there should be reliable and unanswerable evidence of what Mr Ranse said, I am unable to see how it could be concluded that it was not reasonably necessary. The likelihood that Mr Ranse would deny the conversation is obvious. In my view the appellant necessarily had a lawful interest in protecting herself from the risk of the accusation that she had fabricated the conversation. It is unnecessary to go so far as to require her to demonstrate that she might be at risk herself from Mr Ranse if her allegation was not believed by the police. The avoidance of being labelled a liar is, to my mind, an important lawful interest, especially in the context of a criminal investigation, and it is clear that recording the conversation was the only practicable mode of preventing or refuting such an allegation.

84 Nor do I consider that the learned Magistrate’s observation, adopted by the learned judge at first instance, is correct, that allowing the defence in these circumstances would render “the whole object of the…Act…largely ineffective”. There is a substantial difference in the privacy considerations the arise where, on the one hand, a stranger to a conversation listens to or records that conversation unbeknown to the participants and where, on the other, a participant repeats the conversation to a stranger. It is obvious that a participant to a conversation has a legal right (subject to immaterial exceptions) to repeat it to another person, with or without the permission of the other participant. The recording of the conversation simply provides evidence which makes it difficult, if not impossible, for the other participant to deny the truth of the person’s account. To my mind, to relay the conversation contemporaneously to the stranger is not substantially different. The fundamental point is that participants communicate what is spoken intentionally to each other and the law does not, with irrelevant exceptions, limit the right of the participants to repeat the conversation to any other person. In the present circumstances, the law in effect imposed a duty under s 316 of the Crimes Act to report the conversation to police. There is no basis for inferring any duty in the appellant not to report the conversation to the media and this would be so even if there were an agreement between her and Mr Ranse that the conversation would remain confidential, though in some circumstances such a condition might be binding. Even in the latter case, it might well be reasonably necessary to record the conversation for the purpose of having an irrefutable record of what was said against the risk that the person’s lawful interests might be prejudiced by not having such a record. For these reasons, I do not accept that a purpose of the Act, let alone its whole object, is to prevent an irrefutable record to be made and communicated in a context where communication of the conversation is otherwise lawful. Of course, this is not to say that the mere intention of making an irrefutable record of a conversation to which one is a party will, without more, satisfy the defence: the circumstances in which the recording occurs will always be relevant to the determination of whether there is, indeed, a “reasonable necessity” for doing so.

85 Accordingly, I am of the view, with respect, that the learned judge at first instance erred in considering that the issue posed by s 5(3) of the Act required a determination whether conducting the conversation that was recorded was reasonably necessary for the protection of the appellant’s lawful interests as distinct from asking whether the recording was so necessary and, further, that it was not reasonably open for his Honour to have found against the appellant on the issue arising under s 5(3) of the Act.

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Last Modified: 05/10/2004