Right v Stevens
[2009] WASC 102
•20 MARCH 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: RIGHT -v- STEVENS [2009] WASC 102
CORAM: McKECHNIE J
HEARD: 20 MARCH 2009
DELIVERED : 20 MARCH 2009
FILE NO/S: SJA 1039 of 2008
BETWEEN: CHRIS RIGHT
Appellant
AND
ANDREW MICHAEL JOHN STEVENS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE D R V TEMBY
File No :KA 6026 of 2007, KA 6027 of 2007
Catchwords:
Surveillance devices - Audio device close to back fence - Whether conversations on neighbour's patio private conversations - Public interest considerations - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr S M J Leith
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Krysiak v Hodgson [2009] WASC 16
Re Surveillance Devices Act 1998; Ex Parte TCN Channel Nine Pty Ltd [1999] WASC 246
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
McKECHNIE J: This matter has a considerable history. The appellant was charged that between 1 January and 1 November 2007 at Kalgoorlie he possessed a surveillance device knowing it was principally designed for use in contravention of s 5, s 6 and s 7 of the Surveillance Devices Act 1998 (WA) and further charged that between the same two dates he installed a listening device to monitor a private conversation to which he was not a party.
He stood trial on these charges on 28 March 2008 having pleaded not guilty. He was represented by counsel. The magistrate reserved his decision. On 18 April 2008 the appellant was convicted and fined $500 on each charge. The appellant lodged an application for leave to appeal on 16 May 2008. On 28 May 2008 I ordered that the application for leave to appeal and the appeal be heard together.
On 13 June 2008 the appellant lodged a notice of entry for hearing. The matter came on for hearing before Johnson J on 8 August 2008 but did not proceed on that day because the appellant raised Constitutional arguments. Instead Johnson J made programming orders requiring the appellant to file and serve written submissions on any Constitutional issue within 21 days.
On 28 August 2008 I extended time to Monday, 1 September 2008. On 18 September 2008 I refused leave for failure to comply with the orders of the court. The parties were not given written notice of that provisional decision and the certificate of final outcome of appeal was recalled. The appellant was invited to seek a reconsideration of my provisional decision. This he did when the matter came before me on 2 February 2009.
I refused leave on some grounds as vexatious: see Krysiak v Hodgson [2009] WASC 16. I granted leave to the appellant to amend the grounds of appeal, not including the vexatious grounds and set the date of the hearing for today and ordered that the leave to appeal and the appeal both to be heard together.
The test for leave to appeal is set out in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 which explains at [56] the Criminal Appeals Act 2004 (WA) s 9(3) which requires a judge not to grant leave unless there are reasonable prospects of success.
The trial
The prosecution called two witnesses and tendered a series of photographs. The appellant did not give evidence. The magistrate's summary of the evidence in his reasons on 18 April 2008 is accurate and in accordance with the evidence of the witnesses.
Mr Ebejer was the neighbour of the appellant and gave evidence that he was conscious of the fact that in the backyard of the appellant's property there were certain surveillance cameras. He was unaware of an audio surveillance device. He and his wife spent a great deal of time on the back patio. He would come home, have a beer while she smoked, and they would often eat their evening meal and engage in conversation in that area.
The table was one to one and a half metres from the neighbour's fence. He had never seen anybody looking through or over the fence but acknowledged that anything was a possibility. He said they discussed financial matters but would not have discussed financial matters in front of friends or other parties who might have visited.
Mr Ebejer was cross‑examined on some of the details of the inter‑relationship between the appellant and himself.
The second prosecution witness was Sergeant Stevens, the respondent, who attended the property on 1 November 2007 and executed a search warrant. His evidence chiefly related to what was found which was depicted in the photographs that I have seen.
There was a microphone installed in the rear of the yard with a funnel device on the microphone adjacent to the fence some one centimetre away from it. It was connected to leads and the leads ran into the house and connected to power. It was not connected to any recording devices although it was capable of being so connected.
Amended grounds of appeal
I turn now to the grounds of appeal as amended in the document dated 16 February 2009.
The first and second grounds (broadly) relate to the search warrant that was issued and each ground is supported by particulars. The first ground asserts, in summary no valid search warrant, non‑compliance with the Criminal Investigation Act; and the second, in summary, no justification for warrant application, failure to show just cause.
On 1 December 2008, that is nearly eight months after the trial the subject of this appeal, the appellant stood trial before a different magistrate for matters arising out of the same search. Following trial he was convicted of being in possession of a bong. At that trial the appellant sought to challenge the warrant and indeed much of the trial concerned that issue.
The magistrate at the second trial found there were some procedural irregularities but the required information was all included in the warrant and the failure to comply with various sections of the Criminal Investigation Act did not render the evidence inadmissible. There is little reason to doubt that the magistrate in this case would have reached a similar conclusion. However, there is a more fundamental reason why the grounds of appeal must fail and have no reasonable prospects of success.
At the trial the appellant was represented by counsel. In the course of the evidence of Sergeant Stevens counsel for the appellant said:
It's conceded that the search was lawfully conducted. The warrant was lawfully issued and executed. Cautions were complied with and at the end of the video the usual signing off the video - there is no dispute with any threats or inducements of that nature.
HIS HONOUR: All right, so all of the procedural aspects associated with the visit to the property you take no issue with.
TUDORI, MR: No, your Honour (ts 25)
The material that was available in December at the second trial was certainly all available in March at the first trial. Nothing that happened in December could possibly be classified as new or fresh. Magistrates are not required to examine matters which are conceded and there is nothing to suggest that the concession was otherwise than an appropriate concession.
There is therefore no evidence to support the particulars to the ground. The appellant did not give evidence and the only evidence of the search was from Sergeant Stevens as follows:
In the Kalgoorlie detectives. At 12.05 pm Thursday, 1 November 2007, you attended at 18 Oberthur Street in Kalgoorlie?‑‑‑Yes, I did.
You were there to execute a warrant as part of inquiries regarding a complaint received?‑‑‑Yes.
You were in company with Senior Constable Randall, First‑Class Constable Fairley and Constable McGuggon?‑‑‑Yes, that's correct.
...
And explained that his house - that you were there to conduct a warrant, a search warrant, and you showed him a copy of the search warrant and you cautioned him?‑‑‑Yes, that's correct.
Part of the search was recorded on video by First‑Class Constable Fairley and Senior Constable Randall?‑‑‑That's right, yes.
On the evidence before the magistrate there is nothing to excite suspicion that the warrant was invalid. Grounds 1 and 2 show no reasonable prospects of success having regard to the evidence at trial and the decisions made at trial and binding the appellant.
Ground 3 had been one of the original principal grounds and has been expanded to a degree. Ground 3 is: 'The magistrate made errors of law and fact' and there follow enumerated particulars a. to q. The grounds are also argumentative. It is not in issue that the appellant had the microphone with the funnel in the position as found and photographed. It was a question of fact whether the conversations of the neighbours were private conversations.
Essentially, for reasons given by the magistrate, I am satisfied they were at law private conversations. The magistrate dealt with this issue which was a matter of contention at the trial. He referred to the second reading speech and also to Re Surveillance Devices Act 1998; Ex Parte TCN Channel Nine Pty Ltd [1999] WASC 246 and the judgment of Owen J which he applied. The magistrate then said:
So it wasn't as if it was out the back or in the backyard or near the back laneway, where other members of the public may freely access. It was still at a point close enough to the house to be sheltered from any weather or prevailing conditions in that location. And, as I say, if Mr Ebejer had been aware that there was the presence of some other person nearby to where the device was set, then he has a choice, he makes a decision, he either continues the conversation - at that point it doesn't become a private conversation because it's capable of being heard by somebody else. But in ignorance of the fact that the device is set up, he conducts himself in a way that he continues to maintain private conversations with his wife.
In relation to ground a., the magistrate correctly dealt with the burden and standard of proof and obviously bore that in mind because at the conclusion of his reasons he was satisfied that the charges had been made out to the requisite standard.
I will not deal with what I regard as the simply argumentative grounds. I have dealt with ground c. That in the end was a question of fact for the magistrate and the magistrate reached his conclusion. So, also, is ground d. that the magistrate erred in his interpretation of the purpose and spirit of the Western Australian Parliament's legislative intent, in failing to apply the pre‑requisite objective test, as opposed to a subjective test, of 'private conversation'.
I do not consider the magistrate erred. His summary of the law appears to be accurate and it was a question of fact whether these were private conversations. He took into account all the circumstances to conclude that they were. Ground e. asserts that the magistrate erred 'by finding as a fact that the device admitted in evidence was a device intended or designed for use as a "listening device" or a device for any other purpose'.
It seems obvious looking at the matter that it was a listening device. It was:
... that there was an installed microphone in the rear yard, with a funnel device on the microphone, which is also depicted in the photographs that I've seen, which I believe I can take notice that it was - the funnel was there to collect the noises that it was intended to record or to listen to, in order to amplify those noises and therefore to provide the best audio that was available under the circumstances.
In the course of the search and on the surveillance DVD the appellant admitted the device had an audio function so that it could be used as a microphone and admitted that he had used it to record noises in the past. In relation to whether the device was principally designed as a sound pressure level meter, ground 3n. the only evidence was that it had a meter which moved up and down when there was a noise.
It was a question of fact and it was well open for the magistrate on the evidence to conclude that it was a surveillance device, whatever else it may have also been. Ground 3g. complains that the magistrate 'erred in making a guilty finding based on circumstantial and uncorroborated evidence of both civilian and police witnesses'. There is no requirement for corroboration and this was not really a circumstantial evidence case. The essential facts were not really in issue.
The was no evidence also that, as the ground asserts, the neighbour was clearly overtly hostile towards the accused. There was ill‑feeling between the two but the neighbour's evidence was not challenged at trial on the basis that it was untruthful. Grounds 3p. and q. assert that the magistrate 'exceeded his judicial authority by the creation of precedent'. He did not. He decided the case in front of him on the evidence, no more and no less.
I have considered all the grounds and the particulars to ground 3 and taken singly and together, they do not disclose any reasonable prospect of success and therefore leave to appeal on ground 3 is refused.
Ground 4 states: 'Misapplication of statute law - bad law - bad precedent', and is also supported by particulars:
a.The public interest in community members maintaining a vigilant watch over their respective neighbourhoods has enormous value.
b.The public interest in community members seeking to maintain a peaceable existence and harmonious amenity also has enormous value. Failure to promote these values has a destructive effect on communities generally.
Any public interest consideration must be found within the Surveillance Devices Act. Parliament has set out public interest considerations in s 5(2), (3), and s 6(2), (3). The matters raised in the appeal notice are not relevant to the public interest set out in the Surveillance Devices Act 1998. This ground does not have reasonable prospects of success. None of the grounds have reasonable prospects of success and therefore leave to appeal is refused.
4
1