Singh (a pseudonym) v Patel (a pseudonym)
[2023] SASC 164
•20 November 2023
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Civil)
SINGH (A PSEUDONYM) v PATEL (A PSEUDONYM)
[2023] SASC 164
Judgment of the Honourable Justice Bampton
20 November 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - REMISSION FOR REHEARING
DEFAMATION - JUSTIFICATION - TRUTH - SUBSTANTIAL TRUTH AND CONTEXTUAL TRUTH
MAGISTRATES - HEARING - PROCEDURAL FAIRNESS AND NATURAL JUSTICE
COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - LISTENING DEVICES AND SURVEILLANCE DEVICES
Appeal against rejection of justification defences and awards of general and aggravated damages following a trial of defamation proceedings in the Magistrates Court – whether the appellant was afforded procedural fairness – whether justification defences were appropriately dismissed – whether there was a proper evidential basis for the finding regarding the scope of publication – whether general damages were assessed on an unsound factual basis – whether aggravated damages were awarded on an incorrect legal test and on an unsound factual basis.
Held: Procedural fairness was not afforded – the justification defences were not appropriately dismissed – there was not a proper evidential basis for the finding regarding the scope of publication – not necessary to consider the grounds of appeal regarding damages – appeal allowed – judgment set aside – matter remitted to Magistrates Court for rehearing.
Listening and Surveillance Devices Act 1972 (SA) ss 3, 4, 5, 7; Surveillance Devices Act 2016 (SA) ss 3, 4, 9, 10, 11, 12; Evidence Act 1929 (SA) ss 34M, 71A, referred to.
Briginshaw v Briginshaw (1938) 60 CLR 336; Wilczynski v District Court of South Australia [2022] SASC 115; Bunning v Cross (1978) 141 CLR 54; Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor (2018) 132 SASR 63; Thomas & Anor v Nash (2010) 107 SASR 309; D-P v Minister for Child Protection [2018] SASC 149; Ashworth aka Otto v Nine Network Australia Pty Ltd (ACN 008 685 407); Otto (aka Ashworth) v Gold Coast Publications Pty Limited; Otto v Dailymail.com Australia Pty Ltd (No. 2) [2019] NSWDC 188; Nathanson v Minister for Home Affairs (2022) 403 ALR 398, considered.
SINGH (A PSEUDONYM) v PATEL (A PSEUDONYM)
[2023] SASC 164Magistrates Appeal: Civil
BAMPTON J: Presiding over a trial, particularly a defamation trial, involving an unrepresented party, let alone two unrepresented and highly excitable parties prone to interject, one also fraught with health issues, is no easy feat. Add to this the party with health issues participating in the trial via an audio‑visual link which frequently malfunctioned and an opposing counsel whose cross‑examination of the self-represented parties is replete with incendiary retorts of “be quiet”, stop making a “speech”, and “no one’s listening”, plaguing the proceedings with a tinder box of difficulties.
The events leading to the institution of the defamation proceedings
On 19 May 2014, Ravi Patel (“Mr Patel”) is alleged by Priya Singh (“Ms Singh”) to have attended her home and sexually assaulted her (“the incident”).[1]
[1] [2022] SAMC 103 at [13]. The parties have been anonymised to avoid disclosing their identities in contravention s 71A of the Evidence Act 1929 (SA). No disrespect is intended by the use of common Indian names as pseudonyms.
Ms Singh alleged that on 19 May 2014, shortly after her “highly intoxicated” husband had been dropped home at about 11:00 pm, Mr Patel began sending her text messages. She alleged Mr Patel sent texts repeatedly asking if her husband was asleep and when she questioned his interest, he explained he wanted to see her:[2]
This came to me as a big shock and I could only reply ‘What?’. To this he replied back by saying ‘Yes, I want to meet you right now’. I politely replied to him, saying that ‘You are really drunk and probably don’t even know what you are writing, better going home and sleep’. He replied by saying that he knows what he is talking about and insisted that he comes to my house because he wanted to hug me. He kept on asking me to say yes or no, to which I said ‘No’, many times and he would reply back by saying that ‘If you don’t say “yes”, then I will cut you off, cut you off, cut you off, and start ...’. I was very scared of continued threats from Mr Patel and the fact that I was a ... in Australia, I did not want him to cause any sort of trouble for myself or my family. I had heard of rumours where he had caused some trouble in the recent past for an immigrant family. So I was hesitantly agreed and said ‘Yes’ and I was hoping that he would drive, only drive to the place where we lived and not come upstairs to our unit as all the neighbours were Indians ... at that time.
[2] T561.20-562.3.
Ms Singh said Mr Patel came to her unit, “could hardly stand up straight as he was so drunk” and “started to bash the door, asking … [Ms Singh] to let him inside”. She said “[I was] scared as to what my neighbours may think, I unlock the door and let him inside our house. As soon as I unlock the door, he pushed himself over me and started to hug and grope me”.[3]
[3] T562.35-38.
“Sometime in May 2014”, Ms Singh’s husband confronted Mr Patel about the incident and made an audio recording of his conversation in Punjabi with Mr Patel without Mr Patel’s knowledge (“the recording”).[4] On or about 16 November 2018, Ms Singh and her husband attended Mr Patel’s home to obtain an apology for the incident (“the attendance”).[5] Ms Singh alleged that she and her husband were detained from leaving Mr Patel’s home by Mr Patel’s father-in-law and mother-in-law, who were blocking the door. Ms Singh live-streamed the attendance on Facebook.
[4] [2022] SAMC 103 at [14].
[5] [2022] SAMC 103 at [16]-[17].
A few days following the attendance, Mr Patel posted a video on his social media account (“the attendance video”). Many comments were posted on the attendance video, including threatening comments directed at Ms Singh by alleged acquaintances of Mr Patel. Following a request by police, Mr Patel took down the post.
On 17 November 2018, Ms Singh gave a statement about the incident to South Australia Police (“the police”).[6] Ms Singh also telephoned Sunita Chopra (“Ms Chopra”) on 17 November 2018.[7] Ms Singh referred to the attendance video and suggested that she had been subjected to “victim blaming” by Mr Patel, his family, and his friends.[8]
[6] [2022] SAMC 103 at [20].
[7] Sunita Chopra is also a pseudonym, refer to footnote 1.
[8] [2022] SAMC 103 at [21].
On 18 November 2018, Ms Singh anonymously called Ms Chopra and disclosed the incident, but did not reveal the name of the alleged perpetrator.
In the evening of 18 November 2018, Ms Chopra visited Ms Singh and her husband at their home and stayed for about half an hour.[9] During the visit, Ms Singh told Ms Chopra that it was Mr Patel who had assaulted her. Between 18 and 20 November 2018, Ms Chopra assisted Ms Singh through WhatsApp messages with the wording for a statement regarding the incident (“the statement”). A video recording was made of Ms Singh reading the statement (“the video”).[10]
[9] T430.1.
[10] [2022] SAMC 103 at [24]-[25].
The video became public on 20 November 2018 via WhatsApp.[11]
[11] [2022] SAMC 103 at [26]. The transcript of the video is annexed to the Magistrate’s judgment.
On 5 December 2018, Mr Patel’s solicitors served Ms Singh with a concerns notice.
It appears Ms Singh provided a further statement to the police on 8 December 2018.
On 7 January 2019, Mr Patel was charged with one count of rape and four counts of indecent assault.[12] On 10 July 2019, the charges were summarily dismissed for want of prosecution.[13]
[12] [2022] SAMC 103 at [29].
[13] [2022] SAMC 103 at [35].
The Magistrates Court proceedings
Mr Patel commenced proceedings in the Magistrates Court in November 2019 alleging he was defamed by the publication of the video. Ms Singh denied she published the video to any third party. In the alternative she pleaded justification asserting that Mr Patel had confessed in the recording to sexually assaulting her during the incident. Ms Chopra denied she published the video and pleaded that she was only asked by Ms Singh to assist with the wording of the statement as Ms Singh “felt neither she nor her husband [were] competent enough to read or write in English”.[14]
[14] FDN 17 at [6].
The Magistrate who heard the trial found Mr Patel was defamed by the publication of the video and that Ms Singh had not, “on the Briginshaw onus of proof, proved the defences of justification and contextual truth”[15] and that Ms Singh was actuated by malice. His Honour found Ms Chopra was not actuated by malice and was “merely attempting to assist Ms Singh”. Significantly, there is no pleading of malice by Mr Patel. Mr Patel was awarded the sum of $50,000 against Ms Singh and Ms Chopra jointly and aggravated damages in the sum of $25,000 against Ms Singh.
[15] [2022] SAMC 103 at [378].
Ms Singh’s appeal
Ms Singh appeals the Magistrate’s rejection of her justification defences and the awards of damages against her. Ms Chopra is an interested party on appeal.
Grounds of appeal
Procedural fairness ground
Ms Singh complains there was a lack of procedural fairness afforded to her throughout the trial, as:
·a self-represented litigant with no experience in the Court system, for whom English was a second language and who was further faced with cultural differences, being required to respond to a claim brought against her by a man she alleged had sexually assaulted her and had subsequently intimidated her family;
·defamation is a complex area of law and Ms Singh bore the burden of proving defences to the Briginshaw v Briginshaw standard;[16] and
·she was suffering significant ill-health and discomfort throughout the course of the trial.
As a consequence, Ms Singh says she was not afforded an adequate opportunity to present evidence in support of her justification defences.
Justification ground
[16] (1938) 60 CLR 336.
Ms Singh argues the Magistrate erred in rejecting her justification defences in circumstances where:
·The Magistrate accepted that “something happened” between her and Mr Patel on 19 May 2014;
·The most significant ‘sting’ arising from the video was that of a sexual assault, such that proof of the contextual imputation that Mr Patel sexually assaulted her at her home was sufficient to establish a contextual truth defence;
·The Magistrate accepted Mr Patel’s submission that there were inconsistencies in Ms Singh’s evidence regarding the sexual assault although this submission is not supported by the transcript; and
·Any perceived limitations in her evidence in support of her justification defences arose from the lack of opportunity and assistance necessary to appropriately cross-examine Mr Patel, present her own evidence-in-chief, respond in re-examination to matters put to her in cross‑examination fulsomely, and call witnesses in support of her defence.
Scope of publication ground
Ms Singh complains the Magistrate was in error in finding, in the absence of cogent evidence, and assessing damages on the basis, that Ms Singh published the video to all 751 Australian mobile numbers in her WhatsApp contact list.
Assessment of damages ground
As a consequence of the procedural fairness ground, justification ground, and scope of publication ground, Ms Singh contends the Magistrate was in error in the assessment of general damages, and the damages assessed were manifestly excessive.
Aggravated damages ground
Ms Singh asserts the Magistrate was in error in his approach to aggravated damages, which ought not to have been awarded.
Mr Patel argues the appeal lacks merit
Mr Patel argues the appeal lacks merit and there is no utility in remitting the matter to be reheard in the Magistrates Court for the following reasons:
·Ms Singh has never attempted to justify all the imputations Mr Patel alleged were conveyed by the video;
·the Magistrate on retrial may decline to admit the recording;[17]
·Ms Singh deliberately destroyed evidence to prevent dissemination being established, including the extent to which it was published and to whom. Mr Patel notes that the finding of deliberate destruction is not challenged on appeal and indicates that if a retrial were ordered, he would seek to have the defence struck out or an order preventing Ms Singh from asserting that she had not published the video; and
·Ms Singh has not identified any further witnesses that would be called, what they might say, or how they would assist in establishing a defence.
[17] The recording made by Ms Singh’s husband of the conversation he had with Mr Patel “sometime in May 2014” is discussed later in these reasons.
Disposal of the appeal
For the reasons that follow, the appeal grounds of procedural fairness, justification, and scope of publication are made out. On these grounds, the appeal should be allowed, the judgment set aside, and the matter remitted for rehearing.
Procedural fairness
As set out above, Ms Singh complains that procedural fairness was denied to her in many ways. She relies on the decision of Wilczynski v District Court of South Australia (“Wilczynski”)[18] for the proposition that the threshold for establishing a lack of procedural fairness is not high. She submits a mere lack of opportunity to lead further evidence that should have been led is enough. Mr Patel submits that material injustice must be demonstrated; that is, Ms Singh must demonstrate that a different result could have been reached. Justice Blue in Wilczynski, noting that not every non-compliance with the rules of procedural fairness vitiates a decision, said:[19]
[18] [2022] SASC 115.
[19] [2022] SASC 115 at [303].
The error or non-compliance must ordinarily be material and the onus of proof in this respect lies on the party asserting error or non-compliance. However, this is a relatively low threshold.
(Footnote omitted)
Blue J referred to the High Court’s decision in Nathanson v Minister for Home Affairs, where Kiefel CJ, Keane and Gleeson JJ said:[20]
… The burden falls on the plaintiff to prove “on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition”.
and Gageler J said:[21]
The onus which the applicant bears to establish materiality is no greater than to show that, as a matter of reasonable conjecture within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded.
Establishing that threshold of materiality is not onerous. …
(Emphasis added)
[20] (2022) 403 ALR 398 at [32].
[21] (2022) 403 ALR 398 at [46]-[47].
Mr Patel submits Ms Singh demonstrated capacity during trial to put her position and raise issues, such that if a significant problem were affecting her, she would have brought it up. He submits whenever she asked for assistance, the Court provided her with it.
The trial
The trial was listed for five days from 13 December 2021 to 17 December 2021. Mr Patel’s case occupied three and a half days of the trial during which he gave evidence and called five lay witnesses, as well as an expert witness. During cross-examination of Mr Patel, Ms Singh challenged the accuracy of the transcription and translation of the recording dated 29 July 2021. In particular, Ms Singh complained that the identifiers in the transcription and translation were inaccurate by reference to the voices heard in the recording. Ms Singh asked the Magistrate for an interpreter to attend court to clarify the discrepancy between the recording and the transcription. This did not occur. Rather, an order was made permitting Ms Singh to obtain a further transcription and translation as discussed below.
Ms Singh informed the Magistrate that she intended to give evidence and call three witnesses including herself. On appeal, she complains that without adequate consultation with her, Ms Chopra then was invited to open her case and give evidence prior to Ms Singh. Ms Chopra’s evidence took about one day, the majority of which was cross-examination. Ms Singh informed the Court on the morning of 17 December that she would not call her two witnesses based on perceived issues with timing:[22]
HIS HONOUR: Yes, so Ms Singh, are you intending to give evidence yourself?
MS SINGH:Yes, I can do but I don’t have strength and patience like Ms Chopra.
HIS HONOUR: Yes.
MS SINGH:And I would let the courts know that I will be answering the questions once and that’s it. My one time answer is to be taken as evidence, also due to my health if any stress is given to me and my health gets affected I will hold Mr Quinn responsible for that, thank you.
HIS HONOUR: Now Ms Singh, are you calling [Balraj] and your husband?
MS SINGH:No, no, because we have already ... lots of time and it’s been four years and it took a full day yesterday.
[22] T489.20-35.
Ms Singh asserts that her concerns and consequent decision to not call witnesses were not adequately discussed or addressed by the Court.
Ms Singh commenced giving evidence on the afternoon of 17 December 2021, the final listed day of trial. Ms Singh contends her expectation that she would first give an opening was overridden without consultation. She says she was also unwell and scheduled to have surgery on Monday, 20 December 2021.
At 3:26 pm on 17 December, cross-examination of Ms Singh was adjourned to 10 January 2022. Ms Singh says it was not until issues arose regarding access to documents in her cross-examination that the Court allocated the additional sitting day. She points out there had been no prior discussion about the possibility of further hearing days.
Mr Patel submits the adjournment period between 17 December 2021 and 10 January 2022 afforded Ms Singh the opportunity to change her mind about calling witnesses and make necessary arrangements. He notes Ms Singh and Ms Chopra were granted one month to file written closing submissions. Ms Singh asserts there was no indication given to her that the allocation of an additional sitting day might permit her further opportunity to call other witnesses she had wished to call, or as to the arrangements that she ought to make if she wished to call them.
On 17 December 2021, Ms Singh was also given leave to file a further transcription and translation of the recording by 14 January 2022. However, by that date Ms Singh had finished her cross-examination of Mr Patel and was being cross-examined by Mr Patel’s counsel. Ms Singh’s complaint about procedural unfairness on this topic is made good. I can find no evidence she was permitted or given the opportunity to cross-examine Mr Patel on or give evidence about the new version of the transcription and translation dated 29 December 2021 provided to the Court on 8 January 2022.
I alluded above to the frequent incendiary remarks of Mr Patel’s counsel during the trial. Both Ms Singh and Ms Chopra tended to interject and give tangential responses, to the chagrin of Mr Patel’s counsel. Mr Patel acknowledges that the situation was volatile. He points to occasions where the Magistrate intervened to reign in Ms Singh and Ms Chopra. Although I note that the Magistrate also intervened to stop Mr Patel’s counsel from yelling, such exchange appearing in annexure A to these reasons. Mr Patel maintains that counsel tried to keep his cool. Ms Singh submits that the Magistrate deferred significantly to Mr Patel’s counsel and allowed him to run the Court. It is evident on reading the transcript the Magistrate frequently deferred to Mr Patel’s counsel and acceded to his suggestions.
As can be seen in annexure A to these reasons, Mr Patel’s counsel throughout the proceedings repeatedly and facetiously characterised the evidence of Ms Singh and Ms Chopra as speeches. He told them to be quiet, that they were wasting everybody’s time and that no one was listening to them, and he was not stopped by the Magistrate:[23]
[23] T61.34-612.8; T616.1-10.
MR QUINN: Listen to the question. Listen to the question. You agree that the charges that I’ve just referred to were thrown out of court, that is to say dismissed on 10 July 2019 by a magistrate in this court. You agree with that.
MS SINGH:Yes, yes. I just –
MR QUINN: Thank you. I don’t need a speech, I just need the answer. Yes.
MS SINGH:Yes, yes. I received a –
MR QUINN: No, no, listen.
MS SINGH:I am not giving a speech. I just received a message. I just received a message ‘The court dismissed the case’, that’s it, nothing else.
…
OBJECTION: MS CHOPRA OBJECTS
MS CHOPRA: Sorry, your Honour –
A. Okay, so what is the truth? What is the truth?
MR QUINN: Be quiet.
MS CHOPRA: Do not point at –
MR QUINN: You be quiet.
MS CHOPRA: Do not point at me, please.
MR QUINN: You be quiet.
MS CHOPRA: Do not point at me, be civilised.
MR QUINN: You be quiet.
Ms Singh and Ms Chopra were self-represented
Mr Patel was represented throughout the proceedings. The Magistrate states Ms Chopra was self‑represented throughout the matter.[24] This is incorrect. It is clear, by reference to the Court record, that Sekhon Lawyers filed a notice of acting on 2 July 2021 for both Ms Singh and Ms Chopra, filed an application seeking leave to cease to act for them on 9 September 2021, and filed a notice of cessation of acting on 17 September 2021. Mr Sekhon also appeared before the Magistrate at a pretrial conference on 26 August 2021, at a directions hearing on 31 August 2021, and on 15 September 2021 (during which the Magistrate granted Mr Sekhon leave to cease acting for Ms Singh and Ms Chopra).
[24] [2023] SAMC 103 at [33].
I note that on 10 September 2021, a day after Sekhon Lawyers filed the application seeking leave to cease acting, Ms Singh emailed the Court as follows:
As respondent one in the case AMCC 19-4624. I would like to bring this to honourable court notice that I am no longer able to afford a lawyer for my legal proceeding.
Given that I am a victim of sexual assault and is harassed by my perpetrator since year 2014 till date. I have being falsely implicated in a case by him due to which I am traumatised again and again.
I have provided evidences of him accepting and apologising for the sexual assault he committed.in addition Due to lockdown in Victoria I am effected financially henceforth unable to afford a lawyer.
I humbly request the court to support me with the lawyer and legal advices so that I get justice after eight years of emotional and mental distress.
The Listings Manager, Civil Division emailed Ms Singh on 13 September 2021 informing Ms Singh the Court could not provide support in finding a lawyer or give legal advice and suggested Ms Singh ring the Legal Services Commission.
Other than for the period of approximately 10 weeks in 2021, Ms Singh and Ms Chopra were self-represented. Ms Singh submits that, given the difficulties she faced, the Magistrate should have assisted her at trial in the following ways:
·by encouraging her to elaborate on matters relevant to her pleaded defences, including by inquiring further about her social media interaction with Mr Patel and other conduct after the incident, how the video had been disseminated in circumstances where she maintained it had not been shared by her, her contacts on WhatsApp and how WhatsApp information had been deleted, the delay in reporting the incident and any inconsistency between the allegations, and the imputations other than the incident. She submits the Magistrate should have taken her to the issues in dispute, by reference to the pleadings, and ensured she gave any evidence she wished to;
·by adequately warning her of the consequences of failing to call her husband to give evidence about the recording;
·by assisting her discharge her obligation to put matters to Mr Patel, especially regarding previous alleged sexual assaults involving Mr Patel and other women; and
·by explaining the trial process and giving her guidance on what she was expected to do by way of cross-examination.
Mr Patel submits he attempted to alleviate the difficulties faced by Ms Singh by his counsel giving a lengthy opening address identifying the issues to be tried. I note the opening address includes submissions that the making of the recording and the communication or publication of it were serious criminal offences. I discuss the lawfulness of the recording later in these reasons.
Mr Patel points to examples of the Magistrate explaining the trial process, asking Ms Singh probing questions during her evidence-in-chief and assisting her during cross-examination. He submits the Magistrate asked appropriate, open‑ended questions allowing Ms Singh to give all evidence she deemed necessary and at the conclusion of her evidence, asked whether she wanted to say anything else. Mr Patel submits any failure by Ms Singh to give relevant evidence was a deliberate forensic decision because the imputations conveyed by the video could not be proved.
Ms Singh’s medical condition
Ms Singh submits her medical condition was severe enough that the Magistrate should have considered whether the trial should proceed or at least whether additional days should be allocated.
Correspondence with the Court prior to trial
On 11 November 2021, Ms Singh, who moved to Victoria in February 2020,[25] emailed the Court stating:
I have to inform the court that due to some serious medical condition I am not able to travel. Though I am available on phone.
I am attaching my medical certificate below. Please find attached and attach it to my case file. I tried to upload it in my court portal. But unable to lodge it.
[25] T103.4-5.
The medical certificate dated 11 November 2021, written by Dr Rajagopal, obstetrician and gynaecologist, detailed that Ms Singh was suffering a medical condition which rendered her unable to travel interstate or overseas (“the medical condition”). Dr Rajagopal certified that Ms Singh was awaiting surgery for the treatment of the medical condition and that Ms Singh was advised “to postpone plans to travel until after surgery and recovery is completed”.
On 11 November 2021, Ms Singh filed a notice of acting in person.
Ms Singh and Ms Chopra appeared by telephone at the directions hearing on 18 November 2021. The following remarks record that Ms Singh indicated she was content to participate in the five-day trial listed to commence 13 December 2021 by AVL:[26]
The first respondent has provided an email to the court attaching a medical certificate dated 11 November 2021. The medical certificate notes that the first respondent is unable to travel interstate. The first respondent’s email dated 11 November 2021 noted that the respondent was able to attend via telephone. The court has indicated that on that basis it would consider that AVL would be an appropriate course.
The applicant has confirmed that they wish the trial to proceed and are content to proceed via AVL.
After discussion with the first respondent, the first respondent has indicated that she is content to proceed via AVL at the trial commencing on 13 December 2021.
[26] AMMCI-19-4624, FDN 86.
On 10 December 2021, Ms Singh emailed the Court stating that, during video conference testing, a representative of the Courts:
… saw my medical condition and rang back suggesting to submit a medical certificate. I hereby request the trial to take place as scheduled on the 13th December as I am inclined to follow court procedures and expectations, regardless.
Ms Singh requested this email be forward to the Magistrate. A Magistrate’s clerk forwarded the email, stating:
Hey Fothers, just to be clear I did not advise her to submit a medical certificate as a result of witnessing her on the Webex.
She told me she was not well and I said in that case she should submit a medical certificate, which is what we have asked her to do prior.
On 13 December 2021 at 9:48 am, being the first listed day of trial, Ms Singh emailed a medical certificate signed by Dr Shakir dated 12 December 2021 to the Magistrates Court, certifying that Ms Singh had a medical condition and would be unfit for work from 13 December 2021 to 20 December 2021 inclusive. I can find no record of this certificate being brought to the Magistrate’s attention or referred to during the trial.
Ms Singh’s complaints during the trial
The trial commenced on 13 December 2021. Mr Patel and Ms Chopra appeared in person and Ms Singh appeared by audio-visual link.
It appears Ms Singh had undergone emergency surgery the week before the trial and was scheduled to have additional surgery the Monday following the trial as well as in late January 2022. I note early in her-cross examination of Mr Patel, the following exchange occurred:[27]
[27] T66.26-67.6; T68.4-8.
MS SINGH:He is a businessman and he forget to tell the court that he got Cafe Primo in Mawson Lakes, she forgot to tell about any –
HIS HONOUR: Why don’t you ask him those questions and break it down into simple little questions, if possible.
MS SINGH:He is telling lies, nothing else your Honour. He just refuse every single truth by saying “No”.
HIS HONOUR: I understand that’s a submission, but you need, as part of your case, Ms Singh, to put questions and propositions to him.
MS SINGH:Okay, sorry, sorry.
HIS HONOUR: You are acting for yourself, so there is no need to apologise.
MS SINGH:I get tired easy. My heartbeat, it gets fast easy because I am just waiting for my first surgery, and I just want to ask first about his business in Mawson Lakes, Cafe Primo, what happened to his business.
…
HIS HONOUR: … If you need to take five minutes because of your surgery, I understood you had surgery last week, if you need to take five, ten minutes just to compose yourself and think about your questions I’m happy to do that.
During the trial, Ms Singh remarked that she had “so many problems at the moment”, that she was “going through a lot”, that she had “major surgery” coming up and that she had a “very major risk of kidney failure” if she experienced stress. On occasion she stated that she was unwell, tired, or in pain. Examples can be seen in annexure C to these reasons.
Mr Patel submits breaks were granted either immediately or shortly after being requested by Ms Singh. Ms Singh submits that in the circumstances, the Magistrate offering to grant brief adjournments when sought by Ms Singh was insufficient. She points out that in some instances the Magistrate (and Mr Patel’s counsel) told her to wait for a few minutes:[28]
[28] T661.28-35; T397.3-28; T398.2-14.
MS SINGH:I’m just getting tired and I just need, I just need rest and I’m getting tired.
MR QUINN: No, you can have a break at 1 o’clock our time.
HIS HONOUR In 10 minutes.
MR QUINN: If you answer the questions we might even finish by lunchtime …
…
MS SINGH:I need toilet break.
HIS HONOUR: Yes, we are just about to. Thank you, Ms Singh.
MS SINGH:I was waiting for Ms Patel. I was waiting until – I was waiting for Ms Patel to go. I can’t hold it any more.
HIS HONOUR: We’ll only be two minutes.
MS SINGH:I am sick, because Mr Quinn, he never stops.
…
HIS HONOUR: Ms Singh, just to remind you, outbursts like that just don’t help me. I understand it’s extremely stressful.
MS SINGH:I do apologise. I apologise to your Honour, I apologise to the court and to the honourable magistrate.
Actually, I’m on medication and I get anxious very easily. I was holding my toilet breaks for so long and that’s why. I can’t take –
HIS HONOUR: I understand your medical condition. If you do need a break, just let me know. It was just there were only a couple of minutes to go.
MS SINGH:Thank you.
Mr Patel submits the Magistrate sometimes persisted and delayed adjourning if a break was imminent, or the questioning of a witness was nearly complete. I accept this approach would be ordinarily appropriate. However, in this case, it was not appropriate given Ms Singh’s medical condition. I note following Ms Singh saying “Sorry, I am not able to continue, I have really bad pain”,[29] the Magistrate said, “… You indicated that you’re in pain, I am aware that you had surgery last week”,[30] yet the trial continued for another nine pages of transcript before there was a break.
[29] T339.8-9.
[30] T339.30-32.
Despite the Magistrate saying he understood the medical condition it is not clear he was aware of the medical certificate certifying Ms Singh was unfit for work for the period 13 December to 20 December 2021. He was aware Ms Singh had surgery the week before the trial. The information detailed below provided by Ms Singh’s solicitors following the appeal hearing indicates Ms Singh had a three‑day hospital admission for urinary retention between 5 and 8 December 2021. I suspect toilet breaks, possibly requiring self‑catheterisation, were indeed needed urgently. I can find no discussion in the transcript or in the judgment of Ms Singh’s medical condition and its possible impact on her participation in the trial. Her references to being in pain, tiring, being on medication, having had surgery, needing surgery, and “holding [her] toilet breaks for so long” provided ample opportunity for the Court to enquire about her capacity to participate in the trial and to adjourn the trial.
Correspondence with the Court during the adjournment of the trial
At the conclusion of the fifth day of trial on 17 December 2021, the Magistrate adjourned the trial to Monday 10 January 2022 and made the following two orders:
1.Leave to the first respondent to provide a further transcription of an alleged conversation between the applicant and Mr Singh by 14 January 2022.[31]
2.The first respondent is to endeavour to print a hard copy of FDN 66 and a copy of the tender book for use in cross-examination.
(Footnote added)
Order 2 suggests that Ms Singh did not have hard copies of her further amended defence or the Tender book for the first 5 days of trial.
[31] This order refers to the transcription and translation of the recording. The first transcription and translation dated 29 July 2021 was before the Court in the Joint Tender Book Tab 16.
On 8 January 2022, Ms Singh emailed a certification of translation dated 29 December 2021 attaching a further transcription and translation of the recording.
On 21 January 2022, Ms Singh emailed the Court:
As an urgent matter kindly forward this email to Honourable magistrate Fortheringham as a priority.
Honourable magistrate As you are aware of my health condition,I would like to inform you that my health has gone worse from bad and due to that I have been considered Category 1 patient and have a pre admission today.
I have been informed that major surgery will take place anytime next week under the urgency situation.
I have completed 40% of my submission but unable to continue in the hospital while injected with BD Vacutainer needles and a urine bag.
I will be able to update the Honourable court of the surgery date by tomorrow which would require a six weeks of complete recovery period.
I Humbly request two weeks extended period of time to complete my submission after my recovery. I will keep the court informed with further updates.
On 24 January 2022, Ms Singh emailed the Court:
Following our conversation please find attached my surgery admission certificate to be forwarded to Honourable Magistrate Fortherhingam
As a follow up of my previous email sent on 21st January.
It is a humble request to magistrate Fotheringham to seek this matter as an urgency to make a decision on it As soon as possible.
In my previous email I requested an extension period of 2 weeks after my 6 weeks of recovery. considering my surgery date is on 27th January the 6 weeks recovery period would be 10th March. Just a weeks extension time after 10th March will be appreciated.
An order was made by the Magistrate in chambers extending the time for Ms Singh to provide her closing submissions to 28 March 2022.
Medical documentation provided by Ms Singh’s solicitors on appeal
During the appeal, I raised with Ms Singh’s counsel whether she had instructions to provide more detail regarding the medical condition. Ms Singh’s solicitors obtained instructions and following the hearing of the appeal provided a medical certificate signed by Dr Shakir dated 21 November 2021 certifying that Ms Singh was suffering urinary retention on 5 December 2021 and required self‑urinary catheterisation. The solicitors also provided three documents titled “Admissions Episode”:
·The first records Ms Singh was admitted to hospital on 5 December 2021 in relation to “urinary retention secondary to fibroid” and was discharged on 8 December 2021;
·The second records, under the heading “Past History”, “urinary retention-IDC in situ”. I infer IDC refers to an indwelling catheter. The second record also indicates Ms Singh was admitted and discharged on 20 December 2021 in relation to HMB, which I infer is heavy menstrual bleeding; and
·The third records an admission from 27 January 2022 to 30 January 2022 during which Ms Singh underwent a “subtotal hysterectomy and bilateral salpingoophrectomy [sic]”.
Ms Singh’s appearance by audio-video link
To further compound the difficulties encountered by the Magistrate, Ms Singh participated by way of audio-visual link from Victoria throughout the trial. The audio-visual link appears to have dropped out in numerous instances, and on one occasion the Court was forced to revert to a telephone link as is evident in annexure B to these reasons. Ms Singh submits that the transcript is replete with ellipses where she could not be heard or understood. She says the transcript also reveals difficulties arising from the language barrier, which the Magistrate did not attempt to clarify.
Ms Singh has established that “as a matter of reasonable conjecture within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded”.[32] The procedural fairness ground is made out.
Justification
[32] (2022) 403 ALR 398 at [46].
The incident
Ms Singh’s defence of justification relied on her account of the incident which she alleged occurred late at night on 19 May 2014, as some of her “neighbours were finishing their taxi shifts and returning home”, as set out above in [3]-[4].[33]
[33] T562.32-33.
The recording made by Sanjay Singh
In her further amended defence, Ms Singh asserted “sometime in late May 2014” her husband, Sanjay Singh (“Mr Singh”) made the recording of the conversation he had in Punjabi with Mr Patel wherein Mr Patel acknowledged his behaviour during the incident. The recording was made on Mr Singh’s device without Mr Patel’s knowledge.
Ms Singh’s attempts at cross-examining Mr Patel about his conversation with her husband and the alleged apology were compromised by errors in the transcription and translation of the recording dated 29 July 2021. On 17 December 2021, as detailed above, Ms Singh was given leave to provide a further transcription and translation of the recording by 14 January 2022. The following transcription and translation dated 29 December 2021 was filed on 8 January 2022 pursuant to that leave:[34]
[34] This document includes the following explanation of the transcript and translation process. “Words where used under the parenthesis [ ] are the interpreter/translator’s remarks. Words where used under the parenthesis ( ) mean this is how the word/s sounded like, although were not totally and clearly audible/comprehendible. Some words have been used as is, along with an explanatory note to assist with understanding”.
Time Speaker Translation 0:00 Mr Patel One mistake happened Mr Singh Yes Mr Patel That mistake was this … that … when we … mm … when I … about money … that … you know the messages that I sent? Mr Singh Hmm … [unintelligible] … (I’ve understood) 0:14 Mr Patel I came to your house … downstairs Mr Singh Ok Mr Patel Alright? Mr Singh Came downstairs? 0:18 Mr Patel No, came upstairs Mr Singh Hmm … Mr Patel I had come … I … I was so much … drunk … so much drunk … Mr Singh You came by yourself? … or someone came with you … drunk? … You drove to come Mr Patel No … a … alone … I drove, all on my own … drove all on my own … Mr Singh [unintelligible] Mr Singh Earlier I … I gave you an opportunity, didn’t I? Mr Patel Na that’s right … I … I … was under … I thought that … perhaps not so … but yeah … it was so … alright? Mr Singh Hmm … 0:41 Mr Patel But … after that … also felt sorry as well, felt regretful as well, finished (it all off) [both talk over each other] 0:47 Mr Singh The thing you felt sorry for … that couldn’t have happened by mistake … you know the mistake you committed … that couldn’t have happened while under intoxicated with alcohol … that was pre‑planned … that was pre-planned … I can also prove this Mr Singh I won’t have to ask anyone Mr Patel No Mr Singh I will remind things about you, if you have any conscience, you will agree to them … was pre-planned … Mr Patel No no, you will … tell me … Mr Singh Hmm … 1:12 Mr Patel Ok? … Whatsapp messages were going on … Mr Singh Did Priya message you first? Mr Patel Yes she did … 1:15 Mr Singh Did Priya message you first? … Did Priya start it? … at 12:30 in the night … Would Priya message you? Mr Patel No no no … … it was close to 9:30, 10 in the night … 1:25 Mr Singh I’ll tell you, listen to me … I’ll tell you … Mr Patel Tell me … I … I seriously have no recollection of it … alright? [both talk over each other] Mr Patel I might have been the one who (messaged) … I would’ve been the one sending it at night 1:32 Mr Singh To be … to be very honest … I will … on your face … am about to point out a very big mistake of yours … that you tried to … tried to … exploit us on the basis of the visa we hold … that our visa is good for nothing … we won’t be able to speak up …
…
I would think like that … you made me think … [both talk over each other] … You can’t stop me from thinking so … [both talk over each other] … I will prove this
1:54 Mr Singh What happened one day … four … when that … (Chaungi) happened … that must have been where you saw Priya for the first time … Mr Patel Hmm … 2:01 Mr Singh In one’s mind … sometimes … one thought or the other comes up … at times something or the other comes up … it might have come up that on, Sanjay’s wife is very [unintelligible] … etc … anything might have come up … Mr Patel Oh well … I’ll stop you here … just so you know, it didn’t 2:11 Mr Singh Anyway … after that we … started meeting up … we kept on meeting one another … alright? … and … in the meantime … Priya received a friend request from you … We were at the (North Park) Shopping Centre ATM … Priya showed it to me that she had received a request … should I accept? … I said yeah do it … Mr Patel Alright … 2:27 Mr Singh Accept … after that … you started writing comments on Facebook … you normally do it … you do it to everyone … you don’t do it only to her, you do it to everyone Mr Patel Alright … 2:39 Mr Singh Wrote a comment or two … After writing comments, Priya too … Priya’s just sitting online doing nothing … with that, a comment like … a reply like … [both talk over each other] Mr Singh Like a funny one … she gives out like a funny reply, I know … her nature … Mr Patel Alright 2:51 Mr Singh Ok? … After that, you replaced the comments with the message box … same day … you started having wasteful conversations … means … Mr Singh There was nothing wrong in them … Priya was talking to you, calling you ‘Bhaiya’ [brother] … and you were just like … this and that … I can bring Priya’s phone, will show you … [both talk over each other] Mr Patel [unintelligible] Mr Singh It has all the chatting 3:14 Mr Patel Mr Singh Hello … Yeah I’m coming … I’m coming … coming … have you reached home? … yeah only about 5-7 minutes … 3:29 Mr Singh You … Priya … you know Priya is going through tremendous stress … coz there are lots of things to be done … there are so many things to manage … look after the kids, manage the house, studies, has to do IELTS as well … she has to do a lot of things 3:42 Mr Singh You enticed her … that I can work to your advantage … you told me as well … that we will go see (Rodney) … and after that, (I have had) no conversation with (Rodney) … you only enticed us … this is our (loose point) … Mr Patel You … 3:55 Mr Singh You had come to the house as well … when you came to see (Aarav) … (Aarav) had been injured … that day too you came and talk to Priya about things like this … I can do this, I can do that … Mr Patel … did … that but I … nothing like this … Mr Singh [speaks over] … but I would think in those terms isn’t it? Mr Patel Na, you … you would, think … 4:06 Mr Singh Would think so, right? In my head, I would think exactly this, isn’t it? … Even previously when you had come, I had said to you the same thing … I had said that if you thought this way … about our visa … you did do chatting with Priya, right? Mr Patel Hmm … 4:16 Mr Singh On whatsapp, you forced Priya … allow me to come over … only … only because of this … Sanjay bro, only Mr Patel [speaks over] … we used to chat, yeah? Like I … 4:28 Mr Singh [speaks over] … Priya … you said Yes or No! … say Yes or No … 4:31 Mr Patel Yes I had said … the day I was drunk 4:34 Mr Singh Yes or no … tell me in a Yes or No … Priya said No 3-4 times but it still wasn’t enough for you [Male 1: Yes] … You said, ‘say yes, say yes, say yes …’ Mr Patel Alright Mr Singh It’s possible Priya may have thought at some point … oh that’s ok man … what’s the worse that would happen? … he’ll probably come downstairs and then leave! … but you didn’t stop downstairs you came upstairs … kept standing at the gate for 5 minutes … Mr Patel Hmm … 4:48 Mr Singh Dude, did you think about it? Our neighbourhood … you know the people that live around us? are all taxi drivers … Mr Patel Hmm … 4:53 Mr Singh It was Monday that day … 19 May … it was 12:30 in the night and you were standing there … that’s the time when people stop driving and return home … Mr Patel Mm … 5:00 Mr Singh What would this have done to Priya’s reputation, or yours … had someone seen you … or … there are like very tiny units, like someone sitting inside … or say, if Priya had woken me up … what were you thinking that you just came to the house? Mr Patel … 5:12 Mr Singh Priya hid this thing from me because of my anger … You took advantage of that … Mr Patel I … Sanjay bro … that message … Yes or No one that I was doing, right? Mr Singh Hmm … 5:23 Mr Patel That I had been asking her … that I was doing like this, no no no … I was not in my senses Mr Singh Sir you drove the car and came here … in a matter of ten minutes you came to the house … 5:28 Mr Patel … I had been falling over … I … leaving everyone … leaving * (Vicki) … even I cannot believe it how I ended up reaching … don’t know what kind of an evil shadow …
*Punjabi word used could also imply dropping off
5:36 Mr Singh Sir [both talk over each other] why did you not attack anyone else, why did you attack on me? … Because [word/phrase]* … that is why you did this attack on me
*word used was incomprehensible to the Translator and thus, a four letter sentence (underlined) couldn’t be translated
Mr Patel I … to you … this 5:47 Mr Singh [speaks over] … at the time … I only had a doubt on you about this … now I’m sure … 100% sure … you only did this attack on us because our visa status is so useless 5:59 Mr Patel … I do not agree on this … I do not agree with you … I … whatever happened, Sanjay bro, if I’ve come to you, prepared to accept my fault, right? I’ve come with a cleaned up mind Mr Singh [speaks over] … why did you not tell me that, at that time … 6:08 Mr Patel I didn’t want to hurt you [mentally] … for any individual … any … for any individual … whether me or whatever … such a thing for anyone [speaks over] … 6:13 Mr Singh You know this venom that has been spread! … You have no idea how much our kids are suffering due to that … I’ve told you just now, can you, in my presence tell this thing to (Shelly) Bhabi*? Can you tell this thing to (Shelly) Bhabi? that I had gone to their house … that I kept standing there for 5 minutes … Priya cried, at the end! … That’s when you left from there … Priya CRIED in the end!
* The word Bhabi when suffixed with a name, denotes the named person is someone’s wife, generally the wife of one’s male friend or brother, etc. The word can also be used for the wives of male acquaintances
The Magistrate noted Mr Patel conceded his voice is heard on the recording and accepted Mr Patel’s submission that it “was an illegal recording and in breach of the Listening and Surveillance Devices Act 1972 (Cth) [sic] (the LDA)”.[35] There appears to have been a cursory acceptance that the recording was illegal followed by the exercise of the public policy discretion in Bunning v Cross[36] to permit the use of the “illegal recording”. His Honour did not detail in his reasons any consideration of the provisions of the Listening and Surveillance Devices Act 1972 (SA) (“the LDA”) or the Surveillance Devices Act 2016 (SA) (“the SDA”).
[35] [2022] SAMC 103 at [268].
[36] (1978) 141 CLR 54.
The LDA governed the use of listening devices in South Australia until 18 December 2017, when it was repealed and replaced by the SDA.
The Magistrate received the recording into evidence over Mr Patel’s objection. His Honour accepted Mr Patel’s submission that the recording had “little weight on the basis that there was no specific discussion of any sexual assault and no evidence as to what it is that the Applicant is alleged to have admitted to”. The Magistrate also appeared to accept the submission that the recording should be given little weight because Mr Singh was not called to give evidence about it. I note the Magistrate warned Ms Singh “about not calling him to support the transcript evidence as to the alleged admission”.[37] Notwithstanding his conclusion that it had little probative value, his Honour said he considered the recording to be “evidence that something happened on 19 May 2014 between”[38] Mr Patel and Ms Singh. He did not detail what he considered it was evidence of having occurred.
[37] [2022] SAMC 103 at [275].
[38] [2022] SAMC 103 at [308].
The recording was said to be made in May 2014, being a time that the LDA was still in force. In Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor (“Nanosecond”),[39] Doyle J concluded that following the repeal of the LDA, the lawfulness of a recording is to be determined in accordance with the Act in force at the time the recording was made, while the permissibility of use of the recording is to be determined by reference to the Act in force at the time of the proposed use. His Honour considered that the permissibility of use of recordings made whilst the LDA was in force appears to be governed by the SDA, and it “is thus necessary to consider the operation of both Acts”.[40]
[39] (2018) 132 SASR 63.
[40] (2018) 132 SASR 63 at [57], [72]-[73], [76].
Justice Doyle observed:[41]
of the operation of s 4 [of the LDA] proscription against the use of listening devices was qualified by s 7(1), which excluded from the s 4 proscription – and hence permitted – the use of listening devices in a situation where the person using the device was a party to the conversation and made that recording either in the course of duty, in the public interest or for the protection of the lawful interests of that person. The use of recordings made in conformity with the s 7(1) exception was then governed by s 7(2).
…
In the case of recordings made in contravention of s 4 of the old Act, s 5(1) provided that the information or material derived from the recording must not be used except in certain circumstances.
[41] (2018) 132 SASR 63 at [60]-[61].
Following Doyle J’s reasoning, the lawfulness of the recording made by Mr Singh had to be determined by reference to the LDA.
There are several antecedent matters to be determined under the LDA. First, whether the device used by Mr Singh to record the conversation was a “listening device”. Second, whether the conversation was a “private conversation”. Third, whether the recording was made in contravention of s 4 of the LDA or whether the person who made the recording had a lawful purpose pursuant to s 7 of the LDA.
The term “listening device” was defined in s 3 of the LDA and, relevantly, included the following:
(a)an electronic or mechanical device capable of being used to listen to or record a private conversation or words spoken to or by any person in private conversation (whether or not the device is also capable of operating as a surveillance device); and
(b)associated equipment (if any),
...
Section 3 defined a “private conversation” as follows:
private conversation means any conversation carried on in circumstances that may reasonably be taken to indicate that any party to the conversation desires it to be confined to the parties to the conversation.
Section 4 of the LDA prohibited the use of a listening device to record private conversations without the consent of parties to that conversation:
4—Regulation of use of listening devices
Except as provided by this Act, a person must not intentionally use any listening device to overhear, record, monitor or listen to any private conversation, whether or not the person is a party to the conversation, without the consent, express or implied, of the parties to that conversation.
Maximum penalty: $10 000 or imprisonment for 2 years.
A communication or publication of a recording obtained in contravention of s 4 was prohibited by s 5 of the LDA:
5—Prohibition on communication or publication
(1)A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device in contravention of section 4.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2)This section does not prevent the communication or publication of information or material derived from the use of a listening device in contravention of section 4 –
(a) to a person who was a party to the conversation to which the information or material relates; or
(b) with the consent of each party to the conversation to which the information or material relates; or
(c) for the purposes of a relevant investigation or a relevant proceeding relating to that contravention of section 4 or a contravention of this section involving the communication or publication of that information or material.
Section 3 defined “publish” as follows:
publish information or material includes display or deliver the information or material to another.
Section 7 of the LDA provided it was lawful, in certain circumstances, to use a listening device to record a private conversation:
7—Lawful use of listening device by party to private conversation
(1)Section 4 does not apply to or in relation to the use of a listening device by a person (including a person to whom a warrant is issued under this Act) if that listening device is used –
(a) to overhear, record, monitor or listen to any private conversation to which that person is a party; and
(b) in the course of duty of that person, in the public interest or for the protection of the lawful interests of that person.
(2)...
(3)A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device under this section except –
(a) to a person who was a party to the conversation to which the information or material relates; or
(b) with the consent of each party to the conversation to which the information or material relates; or
(c) in the course of duty or in the public interest, including, in the case of information or material derived from the use of a listening device in the course of an investigation by an investigating agency, for the purposes of a relevant investigation or a relevant proceeding; or
(d) being a party to the conversation to which the information or material relates, as reasonably required for the protection of the person’s lawful interests; or
(e) if the information or material has been taken or received in public as evidence in a relevant proceeding.
Maximum penalty: $10 000 or imprisonment for 2 years.
(Emphasis added)
Whilst it is not for me to determine, there would be no dispute the recording was made using a listening device and that it recorded a private conversation as those terms were defined by the LDA. As such, the recording contravened s 4 of the LDA, unless it was made in circumstances which enlivened an exception prescribed by s 7 of the LDA. Whether the recording was lawful will depend on whether Mr Singh’s use of his device to record the conversation fell within s 7(1)(b) of the LDA and was “in the public interest or for the protection of lawful interests of that person”. Determining whether this exception applies requires a determination of:
1.whether there was a public interest in Mr Singh recording the conversation between him and Mr Patel regarding the incident; and/or
2.whether, noting the s 7(1)(b) reference to “lawful interests” appears to be confined to the lawful interests of Mr Singh as the person using the listening device, “lawful interests” could extend to Mr Singh’s use of the listening device to protect the lawful interests of his wife. This would necessarily require consideration of whether the interests of Ms Singh sought to be protected are “lawful interests” within the ambit of the LDA.
In considering the application and scope of the term “lawful interests” under s 7(1)(b), Doyle CJ said in Thomas & Anor v Nash:[42]
I have considered a number of decisions dealing with the relevant provisions of the Act, and with similar legislation elsewhere. The decisions are: T v The Medical Board of South Australia (1992) 58 SASR 382 at 399 Matheson J, at 421 Olsson J and at 423 Debelle J; Public Trustee v Alvaro (1995) 182 LSJS 383 at 405 Legoe AJ; Violi v Berrivale Orchards Ltd [2000] FCA 797; (2000) 99 FCR 580 at [27]- [33] Branson J; R v Le [2004] NSWCCA 82; (2004) 60 NSWLR 108 at [47] Giles JA, at [79] Hulme J and at [83]-[84] Adams J; Sepulveda v The Queen [2006] NSWCCA 379; (2006) 167 A Crim R 108 at [142]- [143] Johnson J, with whom the other members of the Court agreed.
In none of those decisions is there an attempt to identify comprehensively the scope of the expression “lawful interests”. That is not surprising. It is an expression which is best left to be applied case by case, subject to some general guidelines.
Each decision is an application of the expression to its particular facts. In most of those decisions it was accepted that a mere desire to have a reliable record of a conversation is not enough. I agree. Most of the decisions proceed on the basis that a desire to gain an advantage in civil proceedings would not ordinarily amount to a relevant lawful interest, although of course each case has to be considered on its facts. Several of the cases proceed on the basis that where the conversation relates to a serious crime, or an allegation of a serious crime, or to resisting such an allegation, a court is more likely to find that the recording of a conversation relating to the crime can be made in the protection of the person’s “lawful interests”.
[42] (2010) 107 SASR 309 at [46]-[48].
Whether a recording of a private conversation has been made for the protection of a person’s lawful interests will turn on the particular facts of the matter. It seems that where the recording relates to a crime or an allegation of a crime the Court “is more likely to find that” it was made for the protection of a person’s lawful interests. In this matter, Ms Singh has pleaded truth and contextual truth anchored to her allegation of sexual assault. Her allegations against Mr Patel as identified by the Magistrate concern an offence of indecent assault contrary to s 56 the Criminal Law Consolidation Act 1935 (SA).
The LDA did not prescribe a procedure for determining the lawfulness of a recording. However, noting s 6 of the LDA provided that applications for warrants be made to a judge of the Supreme Court, it is appropriate that the lawfulness of a recording be determined by a judge of the Supreme Court. Such a determination could be sought at the same time as seeking an order under s 11 of the SDA, which is discussed below at [91].
If the recording was lawful pursuant to LDA, the permissibility of its use as Doyle J stated appears to be governed by the SDA.
The repeal and transitional provisions in Schedule 1 of Part 4 of the SDA provide that any evidence obtained directly or indirectly from the use of a listening or surveillance device in accordance with the LDA is not inadmissible in any proceedings merely because the evidence was obtained before the commencement of the SDA.
Justice Doyle noted that Division 1 of Part 2 of the SDA:[43]
… regulates the installation, use and maintenance of listening devices. The operative provision under the new Act remains s 4, although the equivalent of s 7 under the old Act is now contained within s 4 of the new Act.
[43] (2018) 132 SASR 63 at [62].
Section 4 of the SDA relevantly provides:
4—Listening devices
(1)Subject to this section and section 6, a person must not knowingly install, use or cause to be used, or maintain, a listening device—
(a) to overhear, record, monitor 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.
Maximum penalty:
(a) in the case of a body corporate—$75 000;
(b) in the case of a natural person—$15 000 or imprisonment for 3 years.
(2)Subsection (1) does not apply—
(a) to the use of a listening device by a party to a private conversation to record the conversation if—
(i)all principal parties to the conversation consent, expressly or impliedly, to the device being so used; or
(ii)the use of the device is reasonably necessary for the protection of the lawful interests of that person; or
(Emphasis added)
Section 6 of the SDA provides that s 4 of the SDA does not apply to the use of a listening device to record a private conversation if the use of the device is in the public interest.
The communication or publication of information or material derived from the use of a listening device is governed by Division 2 of Part 2 of the SDA. Section 9 of the SDA provides that communication or publication of information or material obtained from the use of a listening device, even where the device was used to protect a person’s lawful interests, is a contravention of the SDA unless one of the following exceptions apply:
9—Communication or publication of information or material—lawful interest
(1)A person must not knowingly use, communicate or publish information or material derived from the use of a listening device or an optical surveillance device in circumstances where the device was used to protect the lawful interests of that person except—
(a) to a person who was a party to the conversation or activity to which the information or material relates; or
(b) with the consent of each party to the conversation or activity to which the information or material relates; or
(c) to an officer of an investigating agency for the purposes of a relevant investigation or relevant action or proceeding; or
(d) in the course, or for the purposes, of a relevant action or proceedings; or
(e) in relation to a situation where—
(i) a person is being subjected to violence; or
(ii) there is an imminent threat of violence to a person; or
(f) to a media organisation; or
(g) in accordance with an order of a judge under this Division; or
(h) otherwise in the course of duty or as required or authorised by law.
Maximum penalty:
(a) in the case of a body corporate—$50 000;
(b) in the case of a natural person—$10 000.
(Emphasis added)
A “relevant action or proceedings” referred to in s 9(1)(d) is defined in s 3 and does not include civil proceedings such as these proceedings.
Section 10 of the SDA provides that a person must not knowingly use, communicate or publish information or material derived from the use of a listening device in the public interest, except in accordance with an order of a judge.
If a recording is found to have been made for the protection of lawful interests, the relevant exception is use, communication or publication “in accordance with an order of a judge under [Division 2]” pursuant to s 9(1)(g) of the SDA. If it is determined the recording was also in the public interest pursuant to s 10, communication or publication of it is prohibited except in accordance with an order of a judge.
Applications for orders of a judge to use a recording in accordance with s 9 or s 10 are to be made pursuant to s 11 of the SDA, which provides:
11—Orders authorising use, communication or publication of certain information or material
(1)For the purposes of sections 9 and 10, a person may, in accordance with the rules of court, apply to a judge for an order authorising the use, communication or publication of information or material derived from the use of a listening device or an optical surveillance device.
(2)An order under this section may—
(a) specify the information or material the subject of the order; and
(b) specify the manner in which, and to whom, the specified information or material may be used, communicated or published; and
(c) contain—
(i)conditions and limitations; and
(ii)any other matter as the judge thinks fit.
Section 3 of the SDA provides that “judge” means a judge of the Supreme Court of South Australia. A determination that a recording was lawful under the LDA could be sought as an antecedent order in the same application seeking an order authorising its use pursuant to s 11 of the SDA.
The lawfulness and permissibility of use of the recording had to be determined as a pretrial issue. If a judge of the Supreme Court had determined the recording was lawfully obtained pursuant to the LDA, in accordance with Doyle J’s reasoning in Nanosecond, Ms Singh required an order made by a Supreme Court judge under s 11 of the SDA permitting its use in the defence of Mr Patel’s claim. No application for such an order was made, nor was it averted to at all during the proceedings. Although, I note Parker J in D-P v Minister for Child Protection (“D-P”) appeared to disagree with Doyle J’s conclusion that the permissible use of recordings made when the LDA was in force must now be determined in accordance with the SDA.[44] Justice Parker’s disagreement appears to be confined to concluding that there is nothing in s 16 of the Acts Interpretation Act 1915 (SA) (as it then was) which preserves the prohibition upon use of material that was unlawfully recorded contrary to the LDA after its repeal.
[44] [2018] SASC 149 at [76], [83], [90].
Following Parker J’s decision in D-P, s 12(1a) was inserted into the SDA “to ensure that it is an offence to knowingly communicate or publish information or material derived from the use of a listening device in contravention of s 4 of the [LDA]”.[45] If the recording was obtained in contravention of s 4 of the LDA and therefore unlawful, s 12(1a) of the SDA provides:
(1a)A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device in contravention of section 4 of the Listening and Surveillance Devices Act 1972 (as in force immediately prior to the commencement of this Act).
Maximum penalty: $10 000 or imprisonment for 2 years.
[45] Explanatory Memorandum, Statutes Amendment (Attorney-General’s Portfolio) (No 2) Bill 2019 (SA) at p 3.
Mr Patel pleaded the recording was illegal in his reply and his counsel made several references to the recording being illegal. First, during the opening:[46]
[46] T15.
MR QUINN: … The recording of a private conversation under the Listening Devices Act which applied then is an offence, serious criminal offence, and then the use of that material, that is to say, its communication or publication to any person, is itself an offence, and without getting too technical the communication that follows the enactment of the Surveillance Devices Act in December 2017 picks up that offence and this is set out in the reply.
HIS HONOUR: Yes.
MR QUINN: There’s an objection to that material. The court has a discretion to receive illegally obtained evidence, a discretion to rescind it is akin to the Bunning v Cross discretion. I don’t wish to get into the evidence argument because I will have detailed written submissions, just to flag these objections and what they are.
HIS HONOUR: Yes.
MR QUINN: We’ll deal with them in final submissions with references to authorities and so on, but to have that evidence received, the respondents, or both of them, either or both of them, if they wish to rely upon it, have to overcome the fact that it was illegally obtained and demonstrate some pressing public interest in having that evidence admitted and relied upon, notwithstanding the fact that it was illegally obtained.
and then during Ms Singh’s cross-examination of Mr Patel:[47]
Now whether or not we hear from Sanjay Singh and of course he would need a warning about giving evidence constituting the admission of a series of criminal offences, which this is by the way.
[47] T105.15-18.
Without the preliminary determination of whether the recording was in fact unlawful under the LDA, this statement by counsel is wrong. Further, counsel’s references to Mr Singh having committed “a series of criminal offences” may have warned Ms Singh off calling her husband to give evidence about the recording, despite the Magistrate’s warning about not calling him to give evidence about it.
The justification ground is made out.
Scope of publication
The Magistrate also accepted Mr Patel’s submissions and found that Ms Singh deliberately deleted her WhatsApp details to avoid Mr Patel establishing that she published the video, the extent of the publication, and the identity of the persons who received the video.
The Magistrate found that Ms Singh sent the video “using WhatsApp to all the mobile numbers in her contacts list”[48] and that this was a substantial publication. His Honour further accepted Mr Patel’s submission that he should only have regard to the publication which occurred in Australia. The evidence of Mr Patel’s information technology expert, Mr du Plessis, does not support this finding. Mr du Plessis stated in his report dated 28 September 2021 there were 751 Australian mobile numbers and nine groups associated with Ms Singh’s WhatsApp account.[49] Mr du Plessis said it is not possible to say whether a message was sent to all the contacts, and made the following observations:
[48] [2022] SAMC 103 at [329].
[49] Exhibit A4, Tab 10 at [2.4.2].
1.WhatsApp limits the number of simultaneous recipients of a message to 256;
2.To send a message to 256 recipients, the sender would need to first create a ‘group’ of those recipients by clicking and adding each of them individually; and
3.To have sent the video to all of Ms Singh’s Australian contacts, the video would have had to have been sent on at least three separate occasions, to three groups each containing hundreds of recipients. Mr du Plessis said:[50]
[50] T262.8-38.
Q. Is it a difficult process to repeat the sending from the first 256 to the next 256 of your contacts list.
A. I wouldn’t describe it as difficult, it’s probably very easy to do. It might just be timings.
Q. Timing.
A. You’ve got to select the 256.
Q. Is there a ‘select all’ function or select an age or something.
A. Not to my knowledge, no, unless you’ve created groups beforehand, so you’ve got groups of 256 that you’ve created beforehand and then you don’t have to send it to 256 individuals, you can pick one group and that group might contain 256 contacts.
Q. I think your observation in relation to Ms Chopra’s phone – sorry, in relation to WhatsApp in Ms Singh’s WhatsApp account information is that there were nine separate groups.
A. That’s correct.
Q. I think that was noted at – sorry your Honour, I’ve just lost –
HIS HONOUR: 2.4.3.
XN
Q. That sounds right. Those nine groups which appear at 2.4.3 you’ve identified them from what looks like a screenshot from the contact information, you’re not able to say, are you, how many members of those groups each group contained.
A. No, I can’t, no.
Q. But on what you’ve just described, if there is a group it could have up to 256 in it.
A. Correct.
Ms Singh points out that Mr du Plessis’ report dated 28 September 2021 was prepared based on WhatsApp account information provided by her in July 2020, almost two years after the video was alleged to have been published by her. It is submitted there was no basis to assume that Ms Singh had 751 contacts in 2018.
Mr Patel’s instructions to Mr du Plessis in a letter of instruction dated 3 September 2021 were to “assume that Ms Singh intended to send a message to all of her contacts”. Ms Singh denied sending it to all her contacts:[51]
MR QUINN: Listen. You wanted everyone to hear it. You sent it to all of your contacts in your WhatsApp contact list, didn’t you.
MS SINGHWhatever is in this video is absolutely correct, but I did not publish it and I was never going to publish it because I was not in my senses. I was not in right state of mind.
MR QUINN: I have no further questions. I can’t get any answers and I’m wasting my time.
[51] T672.23-31
Ms Singh contends that to the extent the Magistrate may have been relying on his earlier finding regarding deletion of data from her phone, that finding is equally consistent with a desire by her to avoid establishing publication to one person or a small group of people as it is with publication to all her contacts. It is further contended that:
In any event, Ms Singh relies on the submissions made in relation to the Procedural Fairness Ground regarding the hesitance the Magistrate should have adopted in drawing any adverse inferences based upon Ms Singh’s acts or omissions in the course of defending the proceedings in circumstances where she was being asked to deliver up her personal telephone records to legal representatives acting for a man she alleged has sexually assaulted her.
I agree with the submission that, at its highest, the evidence before the Magistrate, including the fact that none of Mr Patel’s witnesses could depose to having received the video from Ms Singh directly, was equally consistent with a single third party having obtained the video from Ms Singh and disseminated it, as it was with Ms Singh having sent the video to her WhatsApp contacts.
The Magistrate’s finding of publication by Ms Singh to 751 contacts in Australia is not supported by the evidence.
The Magistrate also recorded that Mr Du Plessis noted after reviewing Mr Patel’s:[52]
… mobile phone, which contained some 69,128 messages ranging between April 2017 to 15 December 2021, there was a gap in communications, with no messages recorded between 25 September 2018 and 1 January 2019. There was no explanation given by the Applicant as to why there was a gap.[53]
(Footnote in original)
[52] [2022] SAMC 103 at [101].
[53] T126, lines 4-6.
I note no adverse finding was made about Mr Patel’s gap in communications which covered the period of the attendance, the attendance video, and the video.
Mr du Plessis acknowledged that in examining Mr Patel’s mobile phone, he could not locate the video and accepted that he had no evidence or proof that the video was in fact sent or by whom.[54]
[54] Exhibit A1, Tab 10; T277.21-23.
The scope of publication ground is made out.
Conclusion
Having conducted a review of the transcript and the reasons for judgment, and having had regard to the submissions on appeal, I am left with a real concern Ms Singh’s health issues compromised her participation in the trial and the conduct of her defence. Further, she was denied the opportunity to cross-examine Mr Patel on the transcription and translation of the recording she provided to the Court dated 29 December 2021.
The recording was found to be illegal without proper consideration of the application of the LDA and SDA. It was found to have little probative value although it appears to have been received into evidence on grounds it was evidence that something happened on 19 May 2014 between Mr Patel and Ms Singh. What the Magistrate considered “happened” is not expanded upon. This is significant given the finding that Mr Patel’s evidence was not entirely reliable or credible. Mr Patel was found to evade answering questions put by his own counsel. The Magistrate did not consider him to be an entirely truthful witness regarding the events of the incident and the discussions between himself and his wife after the publication of the video. His Honour also found Mr Patel gave inconsistent evidence regarding the events prior to the incident:[55]
For example, in his evidence-in-chief, the Applicant acknowledged he attended a function on 19 May 2014 with Mr Singh,[56] however, in cross-examination he did not recall attending any event.[57]
(Footnotes in original)
[55] [2022] SAMC 103 at [99].
[56] T48, lines 11-12.
[57] T97, lines 23-31 and T98, lines 1-8.
Further, I note Mr Patel denied recollection of the conversation with Mr Singh and, notwithstanding that his reply conceded that it was a conversation between himself and Mr Singh recorded “sometime in late May 2014”,[58] said in evidence:[59]
A.And I don’t know which date was that recording, when actually he recorded that, there’s no date mentioned.
Q.No.
A.And the recording, there's no from where we started and where it ended. It’s a part of – taken from the middle of the whole conversation.
[58] AMCCI-19-4624, FDN 68 at [7.2].
[59] T82.12-17.
The Magistrate found that Mr Patel, his wife, Ms Singh, and Ms Chopra “all gave evidence in a self-interested way and were evasive in their responses”.
The Magistrate found Ms Singh:[60]
… clearly gave evidence in circumstances where she did not fully appreciate the elements of her pleaded case. She was argumentative, discursive and at times, simply failed to answer questions put to her.
Further, large parts of the First Respondent’s evidence was simply unsatisfactory and irrelevant.
For example, the First Respondent gave evidence that the contents of her phone the day before being examined by the Applicant’s expert had been wiped was likely due to her children.
At times, the First Respondent sought to verbally attack the Applicant’s counsel rather than answering the questions.[61]
(Footnotes in original)
[60] [2022] SAMC 103 at [111]-[114].
[61] T611, lines 12-14 and exchange between counsel and [Ms Singh] concerning the police charge against [Mr Patel] being dismissed (see T612, lines 4-33).
The Magistrate concluded Ms Singh gave inconsistent evidence on the topic of the incident. It is not clear from the judgment in what way her evidence regarding this topic was inconsistent. I infer the Magistrate accepted the submission made by Mr Patel that she had given various accounts of what occurred on 19 May 2014. Mr Patel contended that in her further amended defence Ms Singh alleged he had come into her home and forcefully hugged and kissed her, while the charges by police included a charge of rape.
Annexure B – AVL failures
Transcript reference Stage of trial Transcript extract T2.5-7 Applicant opening MR QUINN: … having had some familiarity with AVL matters, there’s always a glitch. We will do our best. I’m ready to proceed, my client’s ready to proceed. T52.35-53.21 Mr Patel XN HIS HONOUR: Just a second, Mr Quinn. I think Ms Singh is having trouble hearing.
MR QUINN: All right.
HIS HONOUR: Two seconds.
MR QUINN: I’m not sure about our audio, but I’ll try and speak up –
HIS HONOUR: No, no, we’ll just – it might be our end. We’ll just check, sorry.
MR QUINN: We have lost the – there might be a mute on somewhere.
HIS HONOUR: Sorry, Mr Quinn.
MR QUINN: Yes.
HIS HONOUR: Take a seat, Mr Quinn.
MR QUINN: We have done well up until now.
AUDIOVISUAL LINK RE-ACTIVATED
HIS HONOUR: What question did Mr Quinn get to that you could not hear? What was the last question you heard?
MS SINGH: He received a video from his friend, that’s it.
HIS HONOUR: Thank you. Thank you, Mr Quinn.
MS SINGH: But he didn’t receive from me. Thank you.
HIS HONOUR: Thank you.
XN
Q. All right, I’ll come back to the question I was asking. I think we are all online now.
T72.38-73.1 Mr Patel XXN (Ms Singh) HIS HONOUR: Sorry, you cut out there. I could see you talking, but not hear. T91.26-8 Mr Patel XXN (Ms Singh) MS SINGH: His evidence, okay. He is saying that after that also fact –
HIS HONOUR: We missed that. You dropped out.
T93.3-13 Mr Patel XXN (Ms Singh) MR QUINN: She’s dropped out.
HIS HONOUR: I didn’t see what happened. I’m thinking we adjourn off today. Ms Chopra needs to move her car again.
MS CHOPRA: Thank you.
HIS HONOUR: Ms Singh, can you hear me? Not, apparently. Can you hear us, Ms Singh? I just wanted to say a few words to get her to focus overnight, that was all. Sorry for the delay, Mr Patel. We’ll adjourn off in a moment. You’re still under evidence.
T97.10-23 Mr Patel XXN (Ms Singh) XXN
Q. Okay, so you’re saying you don’t recall, okay. So you’re saying you don’t recall. You recall ... business ... you don’t recall ... years then you elected for election, okay, you don’t recall anything. So you have a very selective memory ... is it.
HIS HONOUR: What was the – could you just slow the question. Sorry just because of the AVL, not because of you, if you could just slow your question down because it comes through a bit less clear than would be otherwise prudent or –
MS SINGH: Yes, sorry your Honour.
XXN
Q. So what was the ... party on 19 May 2014.
T117.3-10 Mr Patel XXN (Ms Singh) MS SINGH: All right, thank you. So he is saying that he can’t recall anything. He does have very short memory. So in the audio he is ...
HIS HONOUR: Ms Singh, you cut out again. There we are, we can hear you again.
MS SINGH: Okay. Your Honour, in the audio he is recollecting my husband, he ... what my husband say, that ‘Did Priya message you?’.
T121.17-9 Mr Patel XXN (Ms Singh) Q. So, Mr Ravi Patel, what ...
HIS HONOUR: Sorry, you just cut out. When you moved your head you cut out.
T127.36-7 Mr Patel XXN (Ms Singh) HIS HONOUR: Thank you. You’ve just cut out again. T197.4-9 – MS SINGH: Sorry, your Honour, I need to request for interpreter, because it took –
HIS HONOUR: Sorry, you cut out there, Ms Singh.
MS SINGH: – later translation ...
HIS HONOUR: You need to go back one step, because you’ve cut out.
T207.5-13 Ms Singh XN OBJECTION: MS SINGH OBJECTS
MS SINGH: Can you please ask few more questions about –
HIS HONOUR: Ms Singh, you’ve cut out.
MS SINGH: ...
HIS HONOUR: I didn’t hear a word she said.
MR QUINN: I think I’ll withdraw the question and I’ll rephrase it.
QUESTION WITHDRAWN
T247.7-248.12 Ms N Patel XXN (Ms Singh) Q. Okay, okay. ... Ravi Patel is not attending the festivals – that’s your business.
HIS HONOUR: Ms Singh? Ms Singh?
XXN
Q. You are saying that.
HIS HONOUR: Ms Singh, sorry, you just cut out again, so we didn’t hear half the question. I know it’s frustrating, but we didn’t hear half the question. Just start again, sorry.
XXN
Q. Do you know, like you know more about Ravi Patel.
A. Yes.
Q. Yes, okay. So, you don’t know that he is not in contact with his sister and her family.
A. I couldn’t hear you properly. You’re not –
Q. Even she lives very –
A. You’re not audible.
HIS HONOUR: Sorry, you keep breaking up, Ms Singh, you are. It’s not your fault, it’s just the computer system.
MS SINGH: Thank you so much, your Honour.
HIS HONOUR: So, just take it slowly and we’ll hopefully get it through the audio.
MS SINGH: Okay.
XXN
Q. Ms Patel, can you hear me now.
HIS HONOUR: Yes, it tends to be when you sit up more we can hear, but I understand that might be difficult.
XXN
Q. Ms Patel –
HIS HONOUR: No, you’ve cut out again.
XXN
Q. – you received the video.
HIS HONOUR: Sorry, Ms Singh, you cut out again. Yes, I understand your frustration.
MS SINGH: Your Honour, can Sunita ask the question first?
HIS HONOUR: Yes. Well –
MR QUINN: I don’t mind.
HIS HONOUR: You’re sure, in this situation? Ms Chopra, do you want to start, and then hopefully the feed will –
MS CHOPRA: Sure, your Honour.
T314.21 Mr [Bakshi] XXN (Ms Singh) HIS HONOUR: You’re cutting out again, Ms Singh. T333.2, T333.33-334.6 Ms S Patel XXN (Ms Singh) HIS HONOUR: Sorry, you just cut out again, Ms Singh, and you are probably moving into that irrelevant stuff.
…
Q. Your sister-in-law, yes, yes. You remind me, thank you so much. So why your sister-in-law, two months and ... they don’t ...
HIS HONOUR: No, sorry, Ms Singh, and it’s again not your fault. You totally cut out. That’s the audio, that’s not Ms Singh, that’s the audio. Could you repeat the question, please?
MS SINGH: Yes, your Honour.
HIS HONOUR: Thank you. We have frozen now, I think.
MS SINGH: Yes, I’m just putting it on charge.
HIS HONOUR: Thank you.
MS SINGH: Yes, your Honour.
T335.31-336.15 Ms S Patel XXN (Ms Singh) Q. You don’t know. Do you know Mr ... Patel objected or Mr Patel’s – without consent of the ladies and he was filming them at a public event.
HIS HONOUR: Maybe just repeat that one again, sorry, Ms Singh, there was a couple of words – you’ve dropped out.
XXN
Q. Do you know Mr – Mr Patel – Patel, your husband has misconduct of recording.
HIS HONOUR: Ms Singh, sorry to interrupt again, you dropped out when you’re sort of looking down. It’s more when you stay steady and keep the computer directed to you - I know you’ve got to look at your notes, but that tends to be less of a dropout. I don’t know if that has anything to do with it or it’s just luck, so try again thank you.
XXN
Q. Do you know Mr ... Patel objected, your husband, has misconduct of the recording without consent in that public event.
A. I don’t know.
HIS HONOUR: The answer was ‘I don’t know’.
MS SINGH: Thank you.
T364.20-24 Ms S Patel XXN (Ms Singh) Q. Okay so do you know Siman Patel.
A. Yes. Yes, she’s my relative, yes, I know her.
Q. ... you.
HIS HONOUR: Sorry, it was yes, sometimes the audio cuts out.
T403.9-21 – MS SINGH: I think he is at work. Can he come on video link?
HIS HONOUR: We prefer him to be here. It’s a lot easier. If we have to make a time and do it tomorrow morning instead, then I much prefer him to be present in court.
MS SINGH: All right.
HIS HONOUR: You’ve seen the trouble we’ve had with you dropping in and out. It just makes it extremely difficult.
MS SINGH: Yes.
HIS HONOUR: It makes it more difficult for Mr Quinn and Ms Chopra to cross-examine if they are not here.
T424.5-7 Ms Chopra XN HIS HONOUR: Sorry, Ms Singh appears to have dropped out. Can you hear us, Ms Singh?
MS SINGH: Thank you so much.
T490.4-11 – MS SINGH: Sorry, I reconsidered it today.
HIS HONOUR: Sorry, I missed that.
MS SINGH: So there is interpreter coming in today.
HIS HONOUR: No, I didn’t quite –
MS CHOPRA: Interpreter?
MS SINGH: Coming in today.
HIS HONOUR: Sorry, you’ve cut out a couple of times and no-one quite understands you, I do apologise.
T549.24-28 Ms Chopra XXN (Ms Singh) Q. Thank you so much, Ms Chopra. Okay, so the question is have you gone through the same situation like this because of any victim ... mind change.
HIS HONOUR: Sorry, you cut out, Ms Singh. The audio cut out.
T550.11-16 Ms Chopra XXN (Ms Singh) Q. Thank you. So my ... is ... is it a crime ... to look for ... or any person who can help in the situation ... crime.
A. I don’t quite get that.
HIS HONOUR: Just repeat the question again. The audio is terrible today.
T551.1-7 Ms Chopra XXN (Ms Singh) XXN
Q. Is it a crime to get justice, yes or no. What do you think now.
A. In what context?
Q. Helping in getting justice.
A. I didn’t hear that.
HIS HONOUR: We didn’t hear that again, Ms Singh.
T552.29-33 Ms Chopra XXN (Ms Singh) MS SINGH: Yes, your Honour. Just one more thing ... really apologise ... for the first time in this confession.
HIS HONOUR: You need to start again because you have cut out unfortunately.
T559.37-560.9 XN Ms Singh Q. Just a second –
A. ... my Internet –
Q. Ms Singh –
A. ... I just –
Q. Ms Singh, just a sec. Sorry, go back a bit because you cut out. The whole thing. In fact, it’s 1 o’clock now. I know this is difficult for you but it’s 1 o’clock so we’ll adjourn for lunch and then we’ll continue your evidence which is an important part. So thank you for that.
A. Thank you so much, thank you so much.
T562.4-11 XN Ms Singh Q. Sorry, just go back, you cut out.
A. And so I thought that – your Honour, can you please connect me on the phone and just video on the Webex, AVL?
HIS HONOUR: Would that be better to hear?
MR QUINN: I think we should persist with this, it’s not that bad.
HIS HONOUR: No, no, it’s not that – I agree.
T562.23-25 XN Ms Singh A. So I went outside on the ... Mr ...
Q. You cut out when you said – sorry to talk over you but you cut out where you said ‘I went outside’.
T563.8-9 XN Ms Singh Q. Sorry, you cut out again there. Just – I got that your husband called him the next day. T563.34-564.6 XN Ms Singh Q. Sorry, you cut out again.
A. – husband and myself.
Q. Sorry, you cut out again and I had the words, ‘however deep inside’ and then you cut out.
A. However, deep ... this was even affecting our relationship –
Q. Sorry, you cut out for a second time and I didn’t hear after the words ‘However, deep inside’ and then you –
A. Yeah, that’s okay, your Honour. Thank you so much.
Q. Take your time and it’s the audio cutting out, not anything –
T565.8-10 XN Ms Singh Q. You cut out after you were told to leave the premises.
A. I’m sorry, your Honour.
Q. It’s not your fault, no need to apologise.
T566.1-24 XN Ms Singh Q. Ms Singh, you cut out again after ‘[Kohli Uppal]’ – was the last two words I got.
A. I was so worried for the safety of ...
Q. And cut out again.
ASSOCIATE: Shall we try a phone link?
HIS HONOUR: I think we’d better, it just keeps cutting out. We’ll still have her up on the screen, but –
MR QUINN: Yes.
HIS HONOUR
Q. Ms Singh, we’re just going to try to contact you by phone - to do the phone –
A. ...
Q. Ms Singh, you cut out – we’re just going to call you.
MS SINGH NOW PRESENT VIA TELEPHONE
HIS HONOUR
Q. We got to – the last one was, you were concerned about comments on Facebook, and in particular [Mr Uppal].
A. Yes, okay. So Mr [Kohli Uppal], he asked my address ... and ...
Q. Have you got your phone to your –
A. ... sorry ... sorry?
Q. Put your phone to your –
DISCUSSION RE PHONE LINK
T567.29-568.8 XN Ms Singh HIS HONOUR: I can’t hear that.
HIS HONOUR
Q. Just a second, Ms Singh.
DISCUSSION RE PHONE LINK
HIS HONOUR
Q. Ms Singh, can you speak directly into phone, like holding it –
MR QUINN: Is it one of those moments – sorry to interrupt – where both end users perhaps need to shut down, reboot, and reconnect? I’ve had that with WebEx before. To try to establish a new, and perhaps more stable, connection.
HIS HONOUR: Yes, we can try that, because it’s just not –
MR QUINN: We might need to adjourn the court, perhaps.
HIS HONOUR: Yes.
ADJOURNED 2.46 P.M.
T590.35-591.32 XXN Ms Singh (Mr Quinn) Q. At the bottom of the text box you can see the words ‘Priya Sanjay Singh’, do you see that. Can you still hear us.
A. Hello.
Q. You dropped out, sorry. I was asking you about the words at the bottom of the text box with ‘Priya Sanjay Singh’ and the comment ‘Really cool’. Can you see that.
A. Yes.
Q. You can see it, yes.
A. ...
Q. Are you still with us.
HIS HONOUR
Q. Is anyone else using your internet at the moment because you keep cutting out and dropping out.
A. Hello, hello.
Q. Is anyone else using the internet in your house at the moment.
A. ... hello.
Q. Are you with us.
A. Yes.
Q. We’ll try and call you again. We’ll disconnect and then call you again.
A. Okay.
COURT CLERK: I’ll just expel you from the room but then you’ll have to join again, okay.
A. All right.
COURT CLERK: Is there anyone else in your house that’s using the internet because that can affect the connection?
A. I have three children and one husband. I can’t go out. I have health conditions so I can’t stop, I can’t stop my children to not use internet please.
HIS HONOUR: Yes, all right. Let’s just reboot.
AUDIOVISUAL LINK DEACTIVATED
AUDIOVISUAL LINK ACTIVATED
T652.22-31 XXN Ms Singh (Mr Quinn) Q. Thank you, we can read, but I want you to answer a question. The question is simple, that you say that you prepared and recorded the video, and those words are correct – I can’t hear you.
A. Yes, I prepared, I recorded the video, yes, to view myself.
Q. Stop, stop, stop, I don’t need an argument –
A. I said no ... no, no, no, I was trying to hear myself – you were torturing me, correcting me, you were harassing me.
T654.8-9 XXN Ms Singh (Mr Quinn) Q. We can’t hear you Ms Singh – Ms Singh, are you there, can you hear us T658.2-3 XXN Ms Singh (Mr Quinn) Q. … Do you have a copy of it – sorry, we couldn’t hear you Ms Singh. T680.28-33 XXN Ms Singh (Ms Chopra) A. I just want – yes, yes, yes. So, yes, this is my – I was not in my senses so I really, really apologise again and again, Ms Chopra, because there are many victim of ... woman who are not taking ...
HIS HONOUR
Q. You have just dropped out, Ms Singh.
T681.22-3 XXN Ms Singh (Ms Chopra) HIS HONOUR
Q. Sorry, could you just repeat that. You just dropped out a bit.
T684.9-18 XXN Ms Singh (Ms Chopra) A. As per I know, and Mr ..., he told me that his only and only Ms Sunita Chopra is this poor vulnerable woman in Adelaide who takes the stand for the justice and who listens to my grievance and you were – yes, not my tears, all the vulnerable women –
Q. I didn’t hear that.
A. – who contacts you.
HIS HONOUR
Q. We missed that last little bit, Ms Singh, if you could repeat yourself please.
Annexure C – Ms Singh’s medical issues
Transcript reference Stage of trial Transcript extract T16.18-22 Applicant Opening MS SINGH: Your Honour, I need a break, four or five minutes.
HIS HONOUR: We’ll take a five-minute adjournment.
MS SINGH: Thank you.
ADJOURNED 10.55 A.M.
T17.2-4 Applicant Opening HIS HONOUR: Ms Singh, if, at any time, you need a break, please just let me know and we’ll adjourn for five. T67.2-6 Mr Patel XXN (Ms Singh) MS SINGH: I get tired easy. My heartbeat, it gets fast easy because I am just waiting for my first surgery, and I just want to ask first about his business in Mawson Lakes, Cafe Primo, what happened to his business. T68.4-8 Mr Patel XXN (Ms Singh) HIS HONOUR: No, you need to speak on your behalf. If you need to take five minutes because of your surgery, I understood you had surgery last week, if you need to take five, ten minutes just to compose yourself and think about your questions I’m happy to do that. T107.38-108.4 Mr Patel XXN (Ms Singh) MS SINGH: Sorry, I need a toilet break.
HIS HONOUR: All right.
HIS HONOUR
Q. We’ll take a five minute break, but if you continue to read that, hopefully by then you have done that.
T119.34-8 Mr Patel XXN (Ms Singh) MS SINGH: Thank you, your Honour. So, your Honour, I’m really unfit and I just need a break but not – I just want to be in the court and I just don’t want to stop the court proceeding. May I please request Ms Sunita Chopra if she can proceed? T129.16-9 Mr Patel XXN (Ms Singh) MS SINGH: Your Honour, can I have a break, please?
HIS HONOUR: Well, we just did. Five minutes, yes, okay. Adjourn for five, or adjourn till five past 12.
T231.37-8 Mr Du Plessis XN MS SINGH: Can I have a break please?
HIS HONOUR: We can do that.
T290.3-9 Mr Du Plessis XN MS SINGH: Your Honour, Your Honour, I need break –
MR QUINN: – and – and –
MS SINGH: Your Honour I need break.
MR QUINN: – but what I was –
HIS HONOUR: Ms Singh, we’ve only got – can you just wait five minutes? We’ve only got five minutes to go till lunch.
T313.12-21 Mr [Bakshi] XN MS SINGH: Your Honour can we have a toilet break please?
HIS HONOUR: How long before –
MR QUINN: I’m nearly done.
MS SINGH: Because the same story.
HIS HONOUR: Ms Singh, we have only got two more questions and then we can have a break.
MR QUINN: I’m nearly done and then we can have a break.
HIS HONOUR: That’s what I thought.
T338.10 Ms Patel XXN (Ms Singh) MS SINGH: I am really tired and I’m trying to – T339.8-23; T339.30-4; T341.37-8 – MS SINGH: Sorry, I am not able to continue, I have really bad pain.
HIS HONOUR: Yes.
MS SINGH: Can we continue this with a live video tomorrow?
HIS HONOUR: If we could wait just a couple of minutes I’ll hear you as I said. I just want to make sure we can find the video while you’re here, but I do understand.
MS SINGH: All right, thank you so much.
HIS HONOUR: Can we just check this is it with you?
MS SINGH: Yeah.
HIS HONOUR: My clerk is just about to put it just to make sure this is the right one.
MS SINGH: Your Honour, could I have ...?
HIS HONOUR: Sorry, I missed what you said.
…
HIS HONOUR: Yes, okay, well we don’t need to go into that now. You indicated that you’re in pain, I am aware that you had surgery last week.
MS SINGH: Yeah, ... he is actually, your Honour. And I’m in category 1 in a ... list.
…
MS SINGH: He never finish, your Honour. I’m really tired, I can’t take it anymore.
T397.3-28 – MS SINGH: I need toilet break.
HIS HONOUR: Yes, we are just about to. Thank you, Ms Singh.
MS SINGH: I was waiting for Ms Patel. I was waiting until – I was waiting for Ms Patel to go. I can’t hold it any more.
HIS HONOUR: We’ll only be two minutes.
MS SINGH: I am sick, because Mr Quinn, he never stops.
MR QUINN: I’m stopping at least in terms of my –
HIS HONOUR: He is about to stop. He is about to close his case.
MR QUINN: I’m stopping in terms of closing my case. We are not calling any further witnesses.
HIS HONOUR: Yes.
MR QUINN: And we are not adducing any further evidence. I just point out the idea of the opening –
MS SINGH: ...
HIS HONOUR: Ms Singh, this is not appropriate. It’s not helping.
MS SINGH: ...
HIS HONOUR: Ms Singh, I’m terminating the call with you as of now.
MR QUINN: All right, I’ll leave it there. Adjourn the court, thank you.
HIS HONOUR: Adjourn the court until 10 to, thank you.
T398.1-13 – RESUMING 11.53 A.M.
HIS HONOUR: Ms Singh, just to remind you, outbursts like that just don’t help me. I understand it’s extremely stressful.
MS SINGH: I do apologise. I apologise to your Honour, I apologise to the court and to the honourable magistrate.
Actually, I’m on medication and I get anxious very easily. I was holding my toilet breaks for so long and that’s why. I can’t take –
HIS HONOUR: I understand your medical condition. If you do need a break, just let me know. It was just there were only a couple of minutes to go.
T409.2-12 Second Respondent Opening MS CHOPRA: Can we have a short break?
HIS HONOUR: Are you all right, Ms Singh? Would you like a short break? I’m not sure she’s even hearing us. Ms Singh, are you all right? Ms Singh, are you all right? Do you need a short break?
MS SINGH: ... I am having my surgery next week because they ... for me.
HIS HONOUR: Yes, okay. Are you all right to proceed or would you like five minutes?
MS SINGH: Yes, I need 10 minutes. I need 10 minutes. Thank you so much.
T462.23-4 Ms Chopra XXN (Mr Quinn) Your Honour, I need a break, I need a break please. Thank you. T525.21-6 Ms Chopra XXN (Mr Quinn) MS SINGH: Your Honour I need break.
HIS HONOUR: All right. Thank you, we’ll take a – just one second –
MR QUINN: I want to finish this topic.
HIS HONOUR: Okay. Just a couple of couple more questions.
T574.23 Ms Singh XXN (Mr Quinn) A. Mr Quinn, I am really sick. I am really sick. T576.24-577.2 Ms Singh XXN (Mr Quinn) HIS HONOUR: Yes. My only other concern, the only other spanner is Ms Singh is having surgery.
MR QUINN: And that’s the one that I don’t have any control over.
HIS HONOUR: No.
HIS HONOUR:
Q. So Ms Singh, I’m aware you are having surgery Monday.
A. Yes, this Monday.
Q. And you don’t need to tell me what you are having or any medical explanation, but what is the likely recovery period.
A. My first surgery is a minor surgery. Just two week recovery and then the major one, they will tell when they can do that and the major one will take up to six weeks for recovery.
Q. But the one on Monday is minor, you said.
A. Yes, yes. One week recovery.
T626.35-627.4 Ms Singh XXN (Mr Quinn) A. ... I can’t take this anymore, I’ve been so pressurised, that’s it, I’m done, your Honour I’m done. I’m going ... medical conditions.
Q. Would you like a 10 minute break.
A. I have a risk of kidney failure, your Honour, I can’t take that any more, I will kill myself, I will kill myself your Honour, I can’t take this any more, I can’t.
T628.13-15 Ms Singh XXN (Mr Quinn) A. Sorry, your Honour, sorry, yeah just a 10 minutes break, I’m just hurting, I’m just sweating because my blood pressure goes ... very quicky, I’m just hurting.
HIS HONOUR: We will have a break until 11.45.
T639.1-8 Ms Singh XXN (Mr Quinn) A. Mr Quinn, I have so many problems at the moment. I’m going through a lot. I’ve so many problems. I have major surgery in this coming three to four weeks, –
Q. Ms Singh –
A. – and I have a very, very major risk of kidney failure. If I take stress, if I do things, I have major risk of kidney failure. There are many foods ... with my body at the moment.
T661.28-35 Ms Singh XXN (Mr Quinn) A. I’m just getting tired and I just need, I just need rest I’m getting tired.
Q. No, you can have a break at 1 o’clock our time.
HIS HONOUR
Q. In 10 minutes.
XXN
Q. If you answer the questions we might even finish by lunchtime. You have the tender book.
T689.36-690.2 First Respondent Address Your Honour, sorry, your Honour I just want a month’s time because I have surgery coming up very soon and it’s really major surgery and I just need closing submission time, want time for closing, written closing submission.
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