Tregaskis-Jago v Jones

[2023] TASSC 45

[2023] TASSC 45

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Tregaskis-Jago v Jones [2023] TASSC 45
PARTIES:	TREGASKIS-JAGO, George Maxwell
v
JONES, Jason
FILE NO:	467/2022
DELIVERED ON:	17 November 2023
DELIVERED AT:	Hobart
HEARING DATE:	14 November 2023
JUDGMENT OF:	Pearce J
CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Appeal against finding of guilt on using a listening device to listen to a private conversation – Finding of guilt reasonably open to the magistrate.

Listening Devices Act 1991
Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, applied.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:

Appellant:	F Cangelosi
Respondent:	E Bill

Solicitors:

Appellant:	The Cangelosi Firm
Respondent:	Director of Public Prosecutions

Judgment Number:	[2023] TASSC 45
Number of paragraphs:	26

Serial No 45/2023 File No 467/2022

GEORGE MAXWELL TREGASKIS-JAGO v SENIOR SERGEANT JASON JONES

REASONS FOR JUDGMENT PEARCE J
17 November 2023

1             On 7 February 2022 the applicant was found guilty by a magistrate, Mr S Brown, of one count of using a listening device to listen to a private conversation contrary to the Listening Devices Act 1991, s 5(1)(a). His Honour convicted the applicant and imposed a fine of $1,500. The respondent is the police officer who brought the complaint against the applicant. The applicant moves to review the conviction on two grounds:

(a)	it was not reasonably open in all the circumstances of the case for the learned magistrate to find the complaint proved against the applicant;
(b)	it was not reasonably open in all the circumstances of the case for the learned magistrate to find that the applicant had listened to a private conversation.

2   For the following reasons neither ground is made out and the motion must be dismissed.

3             The Act, by its Long Title, is an "Act to regulate the use of certain devices capable of being used for listening to private conversations." Section 5 is entitled "Prohibition on use of listening devices" and provides, by subs (1):

"5 (1)

A person shall not use, or cause or permit to be used, a listening device –

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

4             The complaint against the applicant alleged that on 24 August 2020, in Launceston, he used a listening device to listen to a private conversation to which he was not a party. It was not alleged that the applicant recorded any conversation. The hearing of the complaint was conducted before the learned magistrate on 24 January 2022. The prosecution evidence consisted of a number of agreed facts, oral testimony of one police officer, and an audio visual recording of a police interview with the applicant conducted on 2 September 2020. The applicant gave evidence in his defence.

5             The relevant conversation took place at the Launceston police station as a result of the following circumstances. Until early August 2020 the applicant was in a relationship with Caitlyn Johnson. She was the registered owner of a blue Holden Astra. On 24 August 2020, two weeks after her relationship with the applicant ended, she found that a GPS tracking device had been installed on her car. Until she found the device she had no knowledge of it. She removed the device and took it to the Launceston police station.

6             The police officer who saw Ms Johnson on 24 August 2020 was Senior Constable Shaun Cackett. Senior Constable Cackett worked in the family violence unit. He gave evidence that he met with Ms Johnson just after 2 pm in the enquiries office. She gave him the device and he took a statement from her. They were together for about an hour. A man named Michael Reid, who came in with Ms Johnson, was also present. When Senior Constable Cackett was given the device he had little knowledge or understanding of its capabilities. After the interview he took it back with him to his office within the police station and put it on his desk. His office contained about six separate work stations. As he prepared his report he did some internet research about the device. While he was

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working there were a number of other police officers present. Over the course of about an hour he had conversations with those police officers, not only about Ms Johnson's complaint but also about the investigation of other matters and family violence reports unrelated to Ms Johnson or the applicant.

7             In the course of his research Senior Constable Cackett found information which led him to suspect that the device which had been sitting on his desk had a listening device capability. He inspected it further, found an on/off switch and switched it off. By then he believed that the device had been placed on the car Ms Johnson had been driving by the applicant. During the following days he interviewed Ms Johnson again. On 2 September 2020 he executed a search warrant at the applicant's home. Senior Constable Cackett's evidence was that during the search the applicant said to him that he had "been waiting for the police to speak to him, that he knew that the device was with the police because he'd been notified of its removal from the vehicle via an alarm and that … he'd already spoken to a solicitor in relation to it."

8             A subscriber check on the SIM card in the device disclosed that it was registered to the applicant although the card had no data on it. Records originating from the tracking device were recovered from the applicant's mobile phone, indicating that the two devices were linked.

9             The applicant was interviewed by Senior Constable Cackett and another officer following the search on 2 September 2020. An audio visual recording of the interview was played at the hearing. The interview covered a number of matters apart from the listening device. The applicant agreed that he had placed the tracking device in the Astra. He claimed that it was his car and that he had installed it on the chassis rail a few months earlier "in case of theft", although he did not tell Ms Johnson about it. He explained that the device was connected to his mobile phone by means of a digital application (an app) which had been downloaded on the phone. The device conveyed information about its geographical position to that phone. The applicant found out that the tracker had been removed from the vehicle by means of an alarm which was sent to his phone from the device within about 10 minutes of its removal. He told the interviewing officers that, once he had been notified that the device had been removed from the car he wondered what was going on and was able to use the app to obtain further information. He signed in through his phone and learned that the device was at the police station. He also told the police that "you can also dial in to the device and listen into the mic." He said "you send it a command… to listen." The following formed part of the exchange during the interview with Senior Constable Cackett:

"Q	And so what conversations did you listen to?
A	Just general conversation. I didn't – I just had a listen and went 'Oh yeah,
cool'".
Q	When it was here at the station?
A	Yeah, when it was turned off the next day…
Q	…So what conversations did you hear?
A	It was just general people talking. I didn't, like, take too much attention to it. I just listened and heard general conversations around it and that was it.
Q	Did you hear Kayla speak?
A	No.
Q	Did you hear me speak?
A	Well it might have been you. I don't know…
Q	…So, how long did you listen to it for?

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A I don't know. A couple of minutes maybe. And then that was it. Then I monitored the calls for 24 hours. I've sort of gone 'Oh shit, what if it's at the police station.'"

10           The applicant gave evidence. Despite his admission that he listened to conversations through the device when it was at the police station, he gave a different account to the magistrate. He was a qualified electrician and was, the magistrate later found, "obviously well familiar with these types of devices." He accepted that he had purchased and installed the device and that it had "listening capabilities". He said "It does have a microphone in it, but it does not record and…, if you want to listen you have to call the device and send it a command." A little later he added, "You have to send it a command, an administrative command via text, and then, once it's approved, you can ring the device." And further, that after sending an administrative command by text message, "you can call it just like a phone call…and then you can listen."

11          In a passage of evidence later referred to by the magistrate, the applicant was asked the following question and gave the following answer:

"Q	And if you communicated with it, how would you go about doing that? Would you use the app or would you use a text message, or how would you go about it?
A	You send it the text message command or a command via the app, and then you ring it." (emphasis added)

12          The applicant was then asked by his counsel whether he recalled being asked by the police whether he had listened through the device. He answered:

"Yeah, I've just watched that back. I don't particularly remember that video interview. I was obviously emotional and stressed and in panic, but, yeah, obviously I've said that I listened to it but I don't believe I did."

13           The applicant's evidence was that he did not call the device on 24 August 2020 to activate the listening function, did not listen through the device on that day and that he had "no idea" why he told the police during the interview that he heard voices for about two minutes. He claimed that the listening function on the device could only be activated by text message. The applicant's counsel had tendered, through Senior Constable Cackett, what was referred to as a "text message history" from the applicant's phone which was said to establish that the last text message from that phone to the device was on 20 August 2020 and that there were no text messages on 24 August 2020. When cross- examined, the applicant maintained that the document was a complete list of the administrative commands from his phone to the device. He denied that it was possible to activate the listening function on the device in any way other than by text message from his phone, by means of the app or through a website. When asked by the prosecutor to explain why he told the police during the interview that he had listened through the device when it was not true, the applicant answered: "I have no idea. I have a panic attack disorder, I was stressed and anxious. I don't particularly remember the interview, so I don't know why the friggin' hell I would have said that." He denied activating the device to listen to it when he realised that it was at the police station but conceded that he had checked a number of times that the device was located at police headquarters at Cimitiere Street.

14           On a motion to review a decision of a magistrate on these grounds the applicant is not entitled to a rehearing. It is not for me to weigh the evidence and reach my own conclusions. The question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. The principles to be applied were reviewed and summarised by Crawford CJ in Phillips v Arnold [2009] TASSC 43; 19 Tas R 21 at [46], and have been applied in countless cases since then including Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454; Nilsson v McDonald [2009] TASSC 66 at [59], Cuthbert v Coates [2018] TASSC 7 and JJMH v Bonde [2020] TASSC 24.

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This is a case in which the credibility of the applicant was an important matter. In Wood v Smith

[1991] TASSC 12, Crawford J (as his Honour then was) stated at [26]–[27]:

"26

The question for this court on an application to review a magistrate's decision on the facts is whether, as a reasonable man, he might have come to the conclusion to which he did: Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346 at 351; Bedelph v Weedon [1963] TASStRp 9; [1963] Tas SR 69 at 81; Benson v Rogers [1966] TASStRp 13; [1966] Tas SR 97 at 99; Richardson v Shipp [1970] TASStRp 6; [1970] Tas SR 105 at 117. To adopt the words of Burbury CJ in Richardson v Shipp at p119 it was for the magistrate 'and not for this appellate court to determine what evidence should be accepted and what weight should be given to it'. The learned magistrate had all the advantages of observing the witnesses and of coming to a decision whether or not he found them convincing. I am at a considerable disadvantage in that regard. In these circumstances I do not feel able to conclude that the decision of the learned magistrate was not one to which, as a reasonable man, he should have come. Accordingly, the application will be dismissed.

27

There was evidence, which if accepted by the learned magistrate, justified the decision to which he came. When a decision depends very much on the credit of witnesses a reviewing court will rarely overturn it."

15           On 7 February the magistrate found the charge proved and announced his reasons. In short summary the magistrate rejected the evidence of the applicant that he did not listen to a conversation through the device. His Honour rejected the applicant's explanation that his admissions to the police of having listened through the device while it was at the police station were made through panic or anxiety. His Honour expressed his view that the applicant, when cross-examined by the prosecutor about whether the listening capacity on the device may have been activated via the app rather than by text message, "artfully engaged" in the exchange by answering only that there was "no record of that". His Honour referred to the passage of the applicant's evidence in which he seemingly acknowledged that the listening function of the device may be activated not only by text message but by means of the app as well. His Honour further found that:

"The issue of the listening to people on the 24th of August 2020 was volunteered by the defendant. He was clearly able to say that he had heard the conversations at the police station and that those did not involve Ms Johnson."

16   The magistrate continued:

"The defendant's explanation for making up his admission regarding the use of the device for listening carries no weight at all. I completely dismiss that evidence and can find no reason whatsoever not to accept the truthfulness of his admissions concerning the device..."

17           As it is drawn, the applicant's first ground of appeal puts in issue every element of the offence the magistrate found proved. However it is not contended that the device was not a listening device. The Act, s 3, defines listening device to mean "any instrument, apparatus, equipment or device capable of being used to record or listen to a private conversation simultaneously with its taking place". The evidence established, and the applicant admitted, that the device found by Ms Johnson was a listening device. No submission to the contrary was made to the magistrate or on the hearing of this motion.

18           The substance of the contention advanced by the first ground is that it was not open to the magistrate, as a reasonable person, to find that the applicant listened to a conversation through the device at all. The applicant submits that his evidence, when considered in context, was that it was not possible to activate the listening function on the device other than by sending a command to it by text message. It was contended that his evidence that communications with the device could be made

5   No 467/2022

through the app and the website as well as by text message was general evidence, but that the specific command to activate the listening device function could only be by text message. There was evidence which tended to prove that no text message was sent to the device on the day it was at the police station. In those circumstances, the applicant submitted, in the absence of evidence that it was possible to activate the listening function on the device in some other way, it was not open for the magistrate to find that the applicant could have listened to anything on that day.

19           I reject the submission. The admissions made by the applicant to the police during his interview, if true, established his guilt. The case depended on whether the evidence of the applicant raised a reasonable doubt about the truth of the admissions. The magistrate had the advantage of observing the applicant's evidence and rejected it, having formed an adverse impression of his credibility. His Honour found that the absence of a record of a text message to activate the listening function on the device on 24 August 2020 was explained by the evidence that commands may be conveyed "via the app". I accept that there was no express admission made by the applicant in his evidence that the specific command to activate the listening function could be conveyed other than by text message. The applicant denied that was so. But in other respects his evidence left open the distinct possibility of general commands being given in a range of ways. The learned magistrate, as his Honour was entitled to do, fixed upon a particular aspect of that evidence. The applicant also told the police, after explaining how to find the location of the device, stated that "You can also dial into the device and listen to the mic."

20           Moreover, there was other evidence which was probative of the truth of the admissions made by the applicant. With respect to the learned magistrate, the logic of his reasoning that the objective evidence tended to prove the truth of the admissions made by the applicant in his interview, was compelling. The admissions were not vague or equivocal. As the learned magistrate pointed out, the information was volunteered by the applicant. The statements made by the applicant to the police included that the conversations he listened to were "just general conversations" and that he "had a listen and went 'Oh, yeah, cool'". He was able to state that it was "just general people talking", that he did not pay much attention to it, that he "just listened and heard general conversations around it and that was it", that he did not hear Ms Johnson speak, he was not able to recognise whether it was Senior Constable Cackett's voice that he heard because "you know what a phone call's like", and that he listened for a "couple of minutes maybe …and then that was it." It was inherently unlikely that the applicant would have made statements of that nature to the interviewing officers unless they were true. In my view, the learned magistrate was entitled to conclude, as he obviously did, that the applicant's evidence about activating the listening function on the device did not require him to have a reasonable doubt about the truth of the admissions. The first ground of the motion fails.

21           The second ground raises the issue of whether the learned magistrate was entitled to conclude that that the conversation he found the applicant had listened to was a "private conversation." The definition section of the Act, s 3, provides:

" A private conversation means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only –

(a) by themselves; or

(b) by themselves and by some other person who has the consent, express or implied, of all those persons to do so."

22           As counsel for the applicant points out the magistrate made no express finding that the conversation he found was listened to was a "private conversation". That is explained by the manner in which the hearing was conducted. The applicant was represented by very experienced counsel. At the commencement of the hearing the magistrate was informed that "the issue on the defence case is

6   No 467/2022

that the defendant denies listening in to the two way conversation". At the conclusion of the evidence, counsel for the applicant did not seek leave to make submissions but submitted that "it's a simple case and a simple issue." The applicant's case was that he did not listen at all, and that is how the hearing was conducted. The point of whether the conversation was a "private conversation" was not raised. There was no cross examination of the single prosecution witness directed to the issue. As I explained in Arnold v Hickman [2016] TASSC 55, ordinarily a person is bound by the conduct of his or her case. However, I will assume for the purpose of determining this argument, that the onus remained on the prosecution to establish every element of the offence. There had been no formal admission or agreed fact to the contrary.

23           The applicant contends that the conversation heard by the applicant was not necessarily private, and could have been about matters involving no need for privacy at all. In my respectful view, that submission misses the point. The question posed by the legislative definition is not whether the conversation was in fact a private one but, rather, whether the words were spoken in circumstances, judged objectively, that may reasonably be taken to indicate that any of the parties to the conversation desired the words to be listened to only by them. In the course of argument my attention was drawn to the decision of the Court of Criminal Appeal in Dimech v Tasmania [2016] TASCCA 3; 257 A Crim R 495. That was an appeal against a conviction for dishonesty, but the question of what might be a "private conversation" within the meaning of the Act became relevant to determination of an evidentiary issue. In the course of his reasons Estcourt J, with whom Porter J (as his Honour then was) and I agreed, determined at [33] that by "the use of the words 'in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only ... by themselves', the test posed by the definition in the Act of the words 'private conversation' is patently rendered an objective test."

24           As counsel for the applicant correctly pointed out, Estcourt J rejected the submission made in that appeal that "during a telephone conversation, unless the contrary is stated, it is inferred that the conversation is a 'private conversation' between two people, and that this is especially the case where information such as private identification details/credit card details, and verification information is sought by one or other of the people to the conversation." His Honour's approach is to be understood in context. Dimech did not concern a circumstance in which a third party listened to a conversation. It concerned a conversation to which Mr Dimech himself was a party, and the circumstances in which that conversation occurred were altogether different. Mr Dimech called a large betting agency to place a bet, spoke to a person he did not know and, in the course of the conversation, provided financial details. The Court determined that such a conversation was not a private conversation because of the public nature of it.

25           I am satisfied that, in the circumstances of this case, it was open to the magistrate to determine, as he must have, that the conversation was a private one. In my respectful view, that was the only conclusion reasonably open. The applicant was not a party to the conversation. The device was, to his knowledge, within the police station. A police station is a place in which conversations involving the utmost need for privacy frequently occur. The participants were conversing in a private office. Without more, those circumstances were enough to justify a finding that it might reasonably be taken that the parties to the conversation the applicant listened to, whoever they were, wanted the conversation to be private. The applicant admitted only hearing "general conversation" and did not identify any content. However, the criterion posed by the legislation is objective and what the applicant heard or did not hear is not to the point. There was no evidence from which it could be inferred that the participants to the conversation contemplated that it might be listened to by someone else. The only available inference is that they did not know they were being listened to. The circumstances of this case reasonably indicate that the participants to the conversation wanted their conversation to be heard only by them. Ground 2 of the motion fails.

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26          For the foregoing reasons the magistrate was, as a reasonable person, entitled to come to the conclusions he did. The motion to review is dismissed.