Victor v Noonan - [2023] WASC 138

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   VICTOR -v- NOONAN [2023] WASC 138
CORAM:   DERRICK J
HEARD:   27 MARCH 2023
DELIVERED          :   4 MAY 2023
FILE NO/S:   SJA 1077 of 2022
BETWEEN:   GAIL SANDRA VICTOR
Appellant
AND
MICHAEL WILLIAM NOONAN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G MacLEAN
File Number            :   PH 174 of 2022

Catchwords:

Appeals - Application for leave to appeal against conviction - Application for extension of time - Application for leave to adduce additional evidence - Appellant convicted of using listening device to record private conversation contrary to s 5(1)(b) of the Surveillance Devices Act 1998 (WA) - Whether magistrate erred in finding that conversation was a 'private conversation' as defined in s 3(1) of Act - Whether appellant bore onus of proving that there were reasonable grounds for believing that use of listening device to record conversation was in the public interest within the meaning of s 26(1) of Act - Whether magistrate erred in finding that appellant had failed to prove that there were no reasonable grounds for believing that use of listening device to record conversation was in the public interest within the meaning of s 26(1) of Act - Whether magistrate erred in failing to consider whether appellant had proved that use of listening device to record conversation was reasonably necessary for protection of appellant's lawful interests within the meaning of s 5(3)(d) of Act - Whether appellant proved that use of listening device to record conversation was reasonably necessary for the protection of appellant's lawful interests within the meaning of s 5(3)(d) of Act

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Surveillance Devices Act 1998 (WA)

Result:

Application for an extension of time to appeal allowed
Application to adduce additional evidence allowed in part
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	M J Ajduk
Respondent	:	J D Berson

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	State Solicitor's Office (WA)

Case(s) referred to in decision(s):

Amalgamated Television Services Pty Ltd v Marsden [2000] NSWCA 167
AW v Rayney [2010] WASCA 161
Browne v Dunn (1893) 6 R 67
Calandra v Civil Aviation Safety Authority [2015] WASCA 31
DSS v The State of Western Australia [2022] WASCA 128
Duckworth v The State of Western Australia [2018] WASCA 2
Eastough v The State of Western Australia [2010] WASCA 88
Elmi v Rozario [2013] WASC 38
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 (S)
Harper v Page [2004] WASCA 267
KUC v The State of Western Australia [2021] WASCA 101
Lancaster v The Queen [1989] WAR 83
Ledgerton v Ambrosini [2023] WASCA 16
Marchesano v The State of Western Australia [2017] WASCA 177; (2017) 52 WAR 176
Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181
Pihema v The State of Western Australia [2017] WASC 282
Poland v Hedley [2019] WASC 403
Re Surveillance Devices Act 1998; Ex parte TCN Channel Nine Pty Ltd [1999] WASC 246
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sepulveda v The Queen [2006] NSWCCA 379; (2006) 167 A Crim R 108
Strahan v Brennan [2014] WASC 190
Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307
Violi v Berrivale Orchards Ltd [2000] FCA 797; (2000) 99 FCR 580
Willenberg v Downey [2015] WASC 282

DERRICK J:

Introduction

On 12 January 2022 the appellant was charged with one offence of using a listening device to record a private conversation to which she was a party contrary to s 5(1)(b) of the Surveillance Devices Act 1998 (WA) (Act).
The appellant pleaded not guilty to the charge.
The appellant's trial took place before Magistrate MacLean on 15 - 16 June 2022. The appellant was represented by counsel at her trial.
On the afternoon of 16 June 2022, immediately following closing addresses, the magistrate delivered his oral reasons for decision. His Honour found the appellant guilty of the charged offence. His Honour fined the appellant $200 for the offence and made a spent conviction order.
The appellant applies for an extension of time within which to appeal and for leave to appeal against the decision of the magistrate convicting her of the offence on three grounds which I refer to further below.[1]
[1] The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA). The decision of the magistrate to convict the appellant of the offence is a decision that may be appealed by the appellant: CAA s 6(c) and s 7(1).
On 12 December 2022 a registrar of this court made an order that the applications for an extension of time within which to appeal and for leave to appeal be heard together with the appeal.
The applications for an extension of time within which to appeal and for leave to appeal were heard by me on 27 March 2023.

Application for extension of time

The last day for the appellant to apply for leave to appeal against her conviction was 14 July 2022.[2] The appellant filed her appeal notice on 25 October 2022, that is, a little under three and a half months out of time.
[2] CAA, s 10(3).
The appellant has filed in support of her application for an extension of time within which to appeal an affidavit sworn by her counsel, Ms Miranda Ajduk, dated 24 October 2022.
The question in determining the application for an extension of time is whether it is in the interests of justice to grant the required extension.[3] In considering whether it is in the interests of justice to grant an extension of time the factors which may generally be considered are the nature and extent of the delay, the reasons for the delay, the proposed grounds of appeal and their merits, the prejudice to the appellant if an extension of time is not granted and the prejudice (if any) to the respondent if an extension of time is granted.[4]
[3] Eastough v The State of Western Australia[No 2] [2010] WASCA 88 [12] ‑ [14].
[4] Duckworth v The State of Western Australia [2018] WASCA 2 [24] ‑ [25].
Where there has been a lengthy delay a court should only grant an extension of time within which to appeal if exceptional circumstances are shown or if a failure to grant the extension would result in a substantial miscarriage of justice.[5]
[5] Lancaster v The Queen [1989] WAR 83, 85; Elmi v Rozario [2013] WASC 38 [15].
The respondent's position in relation to the application for an extension of time is, in substance, that the determination of the application will turn on the question whether any of the grounds of appeal have merit.
The delay in filing the appeal notice is reasonably lengthy. In these circumstances I will defer making a final decision on the application for an extension of time until I have dealt with the merits of the application for leave to appeal.

Leave to appeal - Principles

The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[6] A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[7] If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[8]
[6] CAA, s 9(2).
[7] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[8] CAA, s 9(3).

The trial and the cases of the parties - summary

The prosecution case at trial was that on 29 October 2021 the appellant used her mobile phone to record a private conversation between herself and Mr Peter Carter who was at the time the Mayor of the Town of Port Hedland.
The prosecution called two witnesses at trial, Mr Carter and Detective Senior Constable Michael Noonan. In addition the prosecution read into evidence with the appellant's consent the witness statement of Detective Senior Constable Cherie Carter.
Mr Carter gave evidence that on the day of the alleged offence he was working at his shop, Pilbara Photographics. He said that the appellant came to see him at the shop. He said that the appellant walked through the shop to the door of his workshop where he was working. He gave evidence about the conversation the subject of the charge.
Detective Noonan gave evidence of his involvement in the investigation into the alleged offence. He said that on 13 December 2021 he attended the appellant's address to conduct some inquires in relation to the alleged offence, that he had a brief conversation with the appellant on her doorstep and that he then left. He said that he subsequently obtained a search warrant permitting the appellant's residence to be searched for her mobile phone. He said that on 24 December 2021 Detective Carter executed the search warrant and took possession of the appellant's mobile phone. He said that Detective Carter obtained an electronic recording of an audio file that was found on the appellant's mobile phone.
In her statement Detective Carter stated that on 24 December 2021 she executed the search warrant at the appellant's residence and seized the appellant's mobile phone. She stated, in substance, that she subsequently made an electronic recording of an audio file on the phone that was dated 29 October 2021 and was 16 minutes long.
The audio file found on the appellant's phone, the electronic recording of which was made by Detective Carter, contained a recording of the conversation between Mr Carter and the appellant which formed the basis of the charge. The recording created by Detective Carter was played and tendered at trial.[9]
[9] Exhibit 5; ts 29 - 30, 15 June 2022; ts 7, 16 June 2022.
The prosecution also played and tendered at trial police body worn camera footage of Detective Noonan's attendance at the appellant's address on 13 December 2021 and police body worn camera footage of Detective Carter's execution of the search warrant on 24 December 2021.[10] Although both pieces of footage were played and tendered as part of the prosecution case, the prosecution did not place any specific reliance on either piece of footage. In particular, the prosecution did not place any specific reliance on the statements made by the appellant during the brief interview conducted with her by Detective Noonan on her doorstep on 13 December 2021 (described by Detective Noonan in his evidence as a conversation).
[10] Exhibit 5; ts 5 and 6, 16 June 2022. The two pieces of body worn camera footage formed part of exhibit 5 together with the recording of the conversation the subject of the charge.
The appellant elected to give evidence in her defence. She did not call any other witnesses.
The appellant accepted that she had used her mobile phone to record her conversation with Mr Carter that was the subject of the charge.[11] She accepted that she had made the recording without Mr Carter's consent.[12] She did not dispute that the electronic recording created by Detective Carter was a complete and accurate recording of the recording of the conversation that she had made using her mobile phone.
[11] ts 9, 16 June 2022.
[12] ts 23, 16 June 2022.
At trial the appellant contended that her conversation with Mr Carter was not a private conversation within the meaning of s 5(1)(b) of the Act. In the alternative, the appellant contended that by virtue of s 5(2)(d) of the Act, s 5(1)(b) did not apply to her conduct because there were reasonable grounds for believing that the recording of the conversation was in the public interest within the meaning of s 26 of the Act.
During the appellant's counsel's opening address the magistrate, in effect, asked counsel if the appellant would be asserting that s 5(1)(b) did not apply to her conduct because the appellant's recording of the conversation was reasonably necessary for the protection of her lawful interests within the meaning of s 5(3)(d) of the Act.[13] In response to the magistrate's questioning counsel, after initially stating that she would 'take that question on notice', asserted that the magistrate could also find the appellant not guilty on the basis of s 5(3)(d).[14] Despite making this assertion counsel did not make any further reference to s 5(3)(d) during the trial including in her closing submissions to the magistrate.[15]
[13] ts 5 - 6, 15 June 2022.
[14] ts 6, 15 June 2022.
[15] ts 6, 15 June 2022.

Missing exhibits

During the appellant's trial five exhibits were tendered, one of which, as I have already mentioned, was the electronic recording of the recording that the appellant had made of her conversation with Mr Carter using her mobile phone.
By letter dated 26 October 2022 the court requested the Magistrates Court at Port Hedland to provide it with the exhibits tendered at the appellant's trial. The request was made pursuant to s 10(7) of the Criminal Appeals Act 2004 (WA) (CAA).
By email dated 6 December 2022 the Magistrates Court at Port Hedland advised the court that the exhibits had been returned to the police on 16 September 2022. Although the Magistrates Court did not in its email specify why the exhibits had been returned to the police, it can be inferred that this occurred because by 16 September 2022 the period within which the appellant was required to commence any appeal against her conviction had expired.
By email dated 12 December 2022 the court advised the East Pilbara Police Prosecuting Branch (police prosecutions) of the information that had been provided by the Magistrates Court at Port Hedland and asked for the exhibits to be provided to the court.
By 30 January 2023 the court had not received from police prosecutions a response to its email dated 12 December 2022. Accordingly, on that date the court sent an email to Detective Noonan as the investigating officer asking him to obtain the exhibits.
Later on 30 January 2023 Detective Noonan sent an email to the court advising that the exhibits could not be located 'and were most likely disposed of'.
In light of the inability of the Magistrates Court and the police to provide to the court the exhibits tendered at the appellant's trial the parties, prior to the hearing of the appeal, recovered from their own files and provided to the court complete and accurate copies of the documents and the recordings that were tendered as exhibits 2 - 5 at the trial. Further, at the hearing of the appeal both parties agreed that in light of s 39(1) - s 39(3) and s 40(1)(e) of the CAA it was appropriate for the provided copies of the documents and recordings to be admitted into evidence on the appeal as exhibits 2 - 5 and for them to stand as exhibits 2 - 5 tendered at trial.
Section 39(1) of the CAA provides that an appeal court must decide the appeal on the evidence and material that were before the lower court. Section 39(2) of the CAA provides that an appeal court may ascertain what evidence and material was before the lower court in any way it considers sufficient. Section 39(3) of the CAA provides that s 39(1) does not affect the power of the court in s 40 to admit evidence. Finally, s 40(1)(e) of the CAA provides that for the purposes of dealing with an appeal an appeal court may 'admit any other evidence'.
In light of the above referred to sections of the CAA the course agreed to by the parties was clearly sensible and appropriate. Accordingly, at the hearing of the appeal, and pursuant to s 40(1)(e) of the CAA, I admitted the copies of the documents and the recordings that were tendered as exhibits 2 - 5 at trial as exhibits 2 - 5 respectively on the appeal on the basis that they would stand as trial exhibits 2 - 5. Thus any further references herein to exhibits 2 - 5 can be taken as references to exhibits 2 - 5 tendered at the appellant's trial.

Applications to adduce additional evidence on the appeal

Diagram of shop

Prior to the hearing of the appeal the parties were unable to recover from their files a copy of the document that was tendered as exhibit 1 at the appellant's trial. Exhibit 1 was a diagram drawn by Mr Carter of the layout of his Pilbara Photographics shop.[16]
[16] ts 13, 15 June 2022.
At the commencement of the hearing of the appeal the appellant, with the agreement of the respondent, sought leave to put before the court as an 'aid' but not 'necessarily' as an exhibit, a diagram of the layout of the Pilbara Photographics shop that she and the respondent had, through their legal representatives, arranged for Mr Carter to draw on 14 March 2023.[17] The appellant's counsel submitted, in substance, that I should receive the recently drawn diagram so that I could properly understand the evidence given by Mr Carter at the trial by reference to the diagram that had been tendered as exhibit 1. The appellant's counsel informed me that she had shown the recently drawn diagram to the appellant's trial counsel and that although trial counsel did not have an independent recollection of the diagram that had been tendered at the trial nothing in the recently drawn diagram 'stood out' to her 'as being something that was different to' the diagram that was tendered as exhibit 1 at the trial.[18] The appellant's counsel stated that she could not take the matter 'any further than that'.[19]
[17] Appeal ts 3, 27 March 2023.
[18] Appeal ts 5, 27 March 2023.
[19] Appeal ts 5, 27 March 2023.
In response to the appellant's counsel's submissions I expressed the view that if the recently drawn diagram was to be put before the court, it was not appropriate that it be received only as an 'aid' as opposed to an exhibit. I expressed this view because I did not consider that it was appropriate for the recently drawn diagram to be provided only as an aid as opposed to evidence on the appeal in circumstances in which it was being submitted that I should use the diagram to understand the evidence given by Mr Carter by reference to the diagram that was tendered at the trial; that is, in effect, as a substitute for the diagram tendered at the trial. The appellant's counsel did not, unsurprisingly, attempt to dissuade me from the view I expressed.
The respondent's counsel did not suggest that the recently drawn diagram contained any material inaccuracies in relation to the general layout of the Pilbara Photographics shop. Counsel confirmed that the respondent did not object to the recently drawn diagram being tendered as an exhibit on the appeal. Counsel did, however, make the point that the diagram tendered at the trial was tendered on the basis that the proportions shown in the diagram 'were not necessarily accurate or reflective of the actual distances'.[20]
[20] Appeal ts 6, 27 March 2023.
Based on what I had been told by the appellant's counsel I was satisfied that Mr Carter's recently drawn diagram substantively reflected the diagram that had been tendered as exhibit 1 at the appellant's trial. I was also satisfied that the recently drawn diagram would assist me to understand the evidence that was given by Mr Carter at the trial by reference to the diagram that was tendered as exhibit 1 at the trial.[21] In these circumstances and given that both parties agreed that it was appropriate for me to receive Mr Carter's recently drawn diagram as an exhibit on the appeal, I decided, pursuant to s 40(1)(e) of the CAA, to admit the diagram as evidence on the appeal. I did so on the basis that the diagram was not drawn to scale (that is, was a rough hand drawn diagram that was not intended to accurately represent actual distances). I admitted the diagram as exhibit 1 on the appeal.

Photographs

[21] ts 9 - 13, 15 June 2022.

In addition to seeking to put before the court Mr Carter's recently drawn diagram of the Pilbara Photographics shop, the appellant also sought, without giving the court prior notice of her intention to do so, to put before the court five photographs of the interior of the shop. The appellant's counsel informed me that the photographs had recently been taken by Detective Noonan and that this had occurred with the co-operation of the respondent's counsel. The appellant's counsel submitted that I should receive the photographs because they may aid in my understanding of the evidence given at the appellant's trial. Again, the appellant's counsel's suggestion was that I should receive the photographs as aids but not necessarily as exhibits on the appeal.

The view I expressed in relation to the inappropriateness of Mr Carter's recently drawn diagram being received as an aid as opposed to evidence on the appeal was also expressed in response to the appellant's counsel's submissions made in relation to the photographs. I expressed this view in relation to the photographs because it seemed to me that the reality of the situation was not that I was being asked to receive the photographs merely as an aid to my understanding of the evidence adduced at trial, the evidence having been given and being readily understandable without recourse to photographs, but rather as independent evidence of the layout of the shop that I should take into account in determining whether the magistrate had made the alleged error of fact the subject of ground 1 of the appeal. My perception in this respect was confirmed when, after I expressed my view as to the basis on which the photographs would need to be received, if at all, the appellant's counsel argued that the photographs should be admitted as 'new' as opposed to 'fresh' evidence on the appeal because they did 'potentially have some probative value in the sense that they may tend to raise a doubt as to the appellant's guilt in that they do tend to show the location of the desk at which the other employee in the shop…was seated and the distance'.[22] Counsel submitted that the photographs could be adduced 'if they were to show that there had been a miscarriage in that…evidence wasn't disputed at the original trial or raise a doubt as to the appellant's guilt'.[23]
[22] Appeal ts 6, 27 March 2023.
[23] Appeal ts 7, 27 March 2023.
The respondent's counsel's initial response to the application to admit the photographs as evidence on the appeal (which was also his initial response to the application to admit Mr Carter's recently drawn diagram of the shop) was that the respondent had 'no difficulty with [the photographs] being received as exhibits insofar as they are received as exhibits to aid the court to understand the evidence of Mr Carter, as opposed to independent evidence'.[24] In response to counsel's statement I pointed out to him that if the photographs were received as exhibits, that is, as evidence on the appeal, they would be 'independent evidence' (that is, independent evidence of the interior layout of the shop). After I made this point counsel, without expressly opposing the application to admit the photographs, submitted that the appellant's fundamental difficulty, in addition to the photographs being new evidence as opposed to fresh evidence, was that the photographs did not, given their lack of perspective and absence of defining measurements, permit the measuring of distances or for distances to be commented on.
[24] Appeal ts 4, 27 March 2023.
Ultimately, I permitted the photographs to be provided to me so that counsel could during the hearing of the appeal advance whatever arguments they wished to by reference to the photographs. However, I reserved my decision as to whether I would admit the photographs as evidence on the appeal under s 40(1)(e).
I have now had the opportunity to carefully consider the submissions made by the parties in relation to the admission of the photographs as evidence on the appeal in light of the submissions that were made in relation to the alleged error of fact by the magistrate the subject of ground 1 of the appeal (this being the ground to which the photographs would, if admitted, be relevant). Having done so, I have decided that the application to admit the photographs as evidence on the appeal should be refused. I have arrived at this decision for the following reasons.
First, and as is conceded by the appellant, the photographs are not fresh evidence but rather new evidence.[25] As is demonstrated by what occurred prior to the hearing of the appeal, evidence in the form of photographs of the interior of the shop could, with reasonable diligence, have been obtained by the appellant prior to the trial and for use at the trial. The appellant could, through her legal representatives, have requested the police to take photographs of the interior of the shop for use by her at the trial. It can reasonably be inferred that such a request would in the interests of justice have been complied with by the police. Alternatively, the appellant's legal representatives could have made arrangements with the police to have access to the shop so that they could take their own photographs for use at the trial.
[25] 'Fresh' evidence is evidence which either did not exist at the time of the trial or which could not then, with reasonable diligence, have been discovered. 'New' evidence is evidence which was available at the time of the trial or which could, with reasonable diligence, then have been discovered: DSS v The State of Western Australia [2022] WASCA 128 [141].
Second, the appellant has not adduced any affidavit evidence purporting to explain why she did not take steps to obtain photographs of the interior of the shop prior to the trial.
Third, it is not necessary to refer to the photographs to understand the evidence given at the trial by either Mr Carter or the appellant in relation to the layout of the shop.
Fourth, it is not possible to discern from the photographs precise distances between various locations within the shop.
Fifth, if the appellant had obtained photographs of the interior of the shop for use at the trial, it is inevitable, bearing in mind the obligations imposed on the appellant by the rule in Browne v Dunn,[26] that even if the photographs were not adduced as part of the prosecution case, they would have been adduced as part of the appellant's case through cross-examination of Mr Carter. Mr Carter would then have been afforded the opportunity to give his account of events in relation to his relevant conversation with the appellant by reference to what was shown in the photographs and also to respond to any suggestion made on behalf of the appellant that what was depicted in the photographs did not support his evidence, referred to below, in relation to the privacy of the area of his shop in which the conversation occurred. Further, the prosecutor would have been able to test, by reference to the photographs, the appellant's evidence, also referred to below, to the effect that her conversation with Mr Carter did not occur in a location or in circumstances that could be described as private. Thus to admit the photographs as evidence on the appeal and to rely on them in determining whether the magistrate made the alleged error of fact that is the subject of ground 1 of the appeal would result in significant unfairness to the respondent.
[26] Browne v Dunn (1893) 6 R 67, 70 - 71; KUC v The State of Western Australia [2021] WASCA 101 [119] - [120].
Sixth, the photographs are not, in my view, of such significance that, either by themselves or taken in conjunction with the evidence that was adduced at trial, they establish that the appellant should not have been convicted of the offence.[27]
[27] DSS v The State of Western Australia [141] - [143].

Ground 1 - alleged error in finding that the conversation was a private conversation

Ground 1 of the appellant's grounds of appeal is as follows:[28]
The learned Magistrate erred in fact and/or law in finding that the parties' conversation was a private conversation.

Relevant statutory provisions and applicable legal principles

[28] Section 8(1)(a)(i) of the CAA provides that an appeal may be made on the ground that the court of summary jurisdiction made an error of law or fact.

The Act regulates, among other things, the use of listening devices in respect of private conversations.[29] The Act establishes an integrated scheme for the protection of privacy.[30]
[29] AW v Rayney [2010] WASCA 161 [245].
[30] AW v Rayney [245].
Section 5(1)(b) of the Act provides as follows:
(1)Subject to subsections (2) and (3), a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device -
(a)…; or
(b)to record a private conversation to which that person is a party.
Thus s 5(1)(b) of the Act prohibits a person from using a listening device to record a private conversation to which that person is a party. A person who contravenes s 5(1)(b) commits an offence.
Section 3(1) of the Act relevantly defines 'listening device' to mean:
…any instrument, apparatus, equipment, or any other device capable of being used to record, monitor or listen to a private conversation or words spoken to or by any person in a private conversation…
The appellant's mobile phone was clearly a 'listening device' as defined in s 3(1).
Section 3(1) of the Act relevantly defines 'party' to mean:
(a)in relation to a private conversation -
(i)a person by or to whom words are spoken in the course of the conversation; or
(ii)...
The appellant and Mr Carter were obviously each a 'party' to the conversation the subject of the charge as defined in s 3(1).
Section 3(1) of the Act defines 'private conversation' to mean:
… any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard.
In Re Surveillance Devices Act 1998; Ex parte TCN Channel Nine Pty Ltd[31] Owen J made the following statements in relation to the definition of 'private conversation' contained in the Act:
… Something is not a private conversation…if the parties to it ought reasonably to expect that the conversation … may be overheard... It is to be noted that the test here is largely objective. The problem arises because of the word 'parties' (plural) in the exclusionary provision. The first part of the definition refers to 'any of the parties'. The test under the first part is primarily subjective, that is, the person must actually hold that desire, although the circumstances must also be such as to make the indication of desire 'reasonable'. Thus, if the circumstances reasonably indicate that any one or more, but not necessarily all, of the parties desired that the incident to be…heard only by the principal parties, that is enough to satisfy the first part of the definition. But I do not think that the use of the word 'parties' (plural) in the exclusionary provision means that the definition cannot be satisfied unless all of the parties ought reasonably to have intended the incident to be restricted to themselves. It may well be the case that one of the parties (being the one that is wearing the device) knows full well that the incident is being…listened to by third parties. I think the term 'parties' in the exclusionary provision refers primarily to the person who comes within the phrase 'any party' in the earlier part of the definition but may extend to other parties as well. The words of the exclusionary provision reinforce the need for objective, as well as subjective, considerations in drawing the appropriate inferences.
[31] Re Surveillance Devices Act 1998; Ex parte TCN Channel Nine Pty Ltd [1999] WASC 246 [19]. Referred to with approval in Poland v Hedley [2019] WASC 403 [32].
Accordingly, the question whether a conversation is a 'private conversation' within the meaning of s 5(1)(b) involves both subjective and objective considerations. More specifically, for a conversation to be a 'private conversation' within the meaning of s 5(1)(b) two requirements must be met. First, at least one of the parties to the conversation must subjectively desire for the conversation to be private (that is, listened to only by the parties) in circumstances that may reasonably be taken to indicate that desire. Second, the conversation must not have been carried on in circumstances in which the parties to the conversation ought reasonably (objectively) to have expected that the conversation may be overheard. Further, and as Owen J made clear, the term 'parties' in the second limb or exclusionary provision of the definition of 'private conversation' refers primarily to the person or persons who fall within the phrase 'any of the parties' in the first limb of the definition, which in the circumstances of the present case was, on the prosecution case, Mr Carter.[32]

Appellant's contention - alleged error of law

[32] Poland v Hedley [32].

The appellant contends that the magistrate made an error of law by failing to determine if the prosecution had proved beyond reasonable doubt that the exclusionary provision of the definition of 'private conversation' did not apply; that is, that the conversation was not carried on in circumstances in which any party to the conversation ought reasonably (objectively) to have expected that the conversation may be overheard.

Appellant's contention - alleged error of fact

The appellant does not seek to argue in support of her ground of appeal that the magistrate made an error in finding that the first limb of the definition of 'private conversation' had been proved. That is, the appellant does not seek to argue that the magistrate made an error in finding that at least one of the parties to the conversation, namely Mr Carter, subjectively desired for the conversation to be private in circumstances that reasonably indicated that desire. Rather, the appellant's argument in support of her ground of appeal, which is advanced in the alternative to the argument that the magistrate made the above referred to error of law, is that his Honour made an error of fact in finding that the prosecution had proved that the exclusionary provision of the definition of 'private conversation' did not apply. That is, the appellant argues that the magistrate made an error of fact in finding that the conversation was not carried out in circumstances in which 'any party', specifically Mr Carter, ought reasonably to have expected that the conversation may be overheard.

Evidence relevant to the question whether the recorded conversation was a 'private conversation'

It is convenient to at this point refer to the evidence adduced at trial that is relevant to the alleged error of fact the subject of the ground of appeal. The relevant evidence is comprised of some of the evidence given by Mr Carter and the appellant, and the recording of the conversation itself.

Mr Carter's evidence

In relation to where the conversation between himself and the appellant took place and the likelihood of anyone being able to overhear the conversation, Mr Carter's evidence was as follows:
1.He was working as a picture framer in his workshop at the back of his shop, Pilbara Photographics, when the appellant came to see him. The appellant walked straight through his shop to the door of his workshop. The workshop is a private area;[33]
[33] ts 9 and 12, 15 June 2022.
2.There is a workbench in the workshop. There is a door leading into the workshop. From the workshop he can clearly see who is coming in and out of his shop;[34]
[34] ts 10 and 26 - 27; 15 June 2022.
3.Customers do not come into his workshop and do not have to come into his workshop to buy anything. They can buy things at the front of his shop and in the gallery. The workshop is his work area. He rarely has people come into his work area. A person would come into his workshop to speak to him maybe twice a week. It is very unusual for people who he does not know to come into his workshop;[35]
[35] ts 10, 11 and 27, 15 June 2022.
4.The appellant always sees him in his workshop because from the front of the shop 'you can see straight through';[36]
[36] ts 10, 15 June 2022.
5.The appellant walked into his shop straight through to the door of his workshop. That is where they spoke, 'out the back in that private area'. He was standing at the corner of his workbench. Although he rarely had people in his work area his relationship with the appellant was very open and they were 'having a chat in [the] back area';[37]
6.The workshop is all enclosed. It has gyprock padded walls 'all the way around' with only a little door to walk through. The walls of the workshop are padded because there is an air compressor in the workshop; [38]
7.The shop is 200 square metres;[39]
8.At the time of the conversation the only person in the shop was his employee who works at the travel agency located in the corner of the shop. His employee was sitting at her desk. It is about 6 metres from the workshop to his employee's workplace in the travel agency. The areas are separated by the padded gyprock wall. No one other than his employee was in the shop;[40]
9.At the time of the conversation the door to the workshop was 'half ajar' because it could not be opened 'all the way';[41]
10.His conversation with the appellant was a soft conversation. They were only a metre away from each other when they were talking so it was not a loud conversation. It was a conversation 'between her and me';[42]
11.The conversation was a quick conversation. It probably lasted for around 5 - 10 minutes;[43]
12.It would have been impossible for anyone outside the workshop to have heard his conversation with the appellant;[44]
13.The counter in his shop ends at the door to his workshop. If someone is standing at his shop counter they can see into his workshop through the workshop doorway;[45] and
14.If the workshop door is open there is no physical barrier to people walking into the workshop area.[46]
[37] ts 9, 10 - 11 and 12, 15 June 2022.
[38] ts 11 - 13, 15 June 2022.
[39] ts 11, 15 June 2022
[40] ts 12 - 13 and 25, 15 June 2022.
[41] ts 12, 15 June 2022.
[42] ts 14 - 15, 15 June 2022.
[43] ts 16, 15 June 2022.
[44] ts 25, 15 June 2022.
[45] ts 27, 15 June 2022.
[46] ts 27 - 28, 15 June 2022.
Mr Carter gave his above referred to evidence relating to the layout of his shop by reference to a drawing he had made.[47] As I have already indicated, the drawing was tendered.[48]
[47] ts 9 - 13, 15 June 2022.
[48] ts 13, 15 June 2022; exhibit 1.
In cross-examination the recording of Mr Carter's conversation with the appellant was played to Mr Carter.[49] Before the recording was played Mr Carter testified that he had not previously heard the recording.[50] After being played the recording Mr Carter agreed that background noise from the shopping centre in which his shop is situated could be heard in the recording.[51] He also agreed that a ringing phone could be heard in the recording.[52] He did not accept that a child's voice could be heard in the recording.[53]
[49] ts 30, 15 June 2022; exhibit 5.
[50] ts 29, 15 June 2022; exhibit 5.
[51] ts 31, 15 June 2022.
[52] ts 30, 15 June 2022.
[53] ts 31, 15 June 2022.
In cross-examination Mr Carter rejected the proposition that if someone had walked into his shop at the time that he was talking to the appellant in the workshop area they would have been able to hear the conversation.[54] He rejected the proposition that his employee in the travel agency would have been able to hear his conversation with the appellant.[55]

Appellant's evidence

[54] ts 31, 15 June 2022.

[55] ts 31, 15 June 2022.

The appellant's evidence that bore upon the question of the likelihood of anyone being able to overhear her conversation with Mr Carter was as follows:
1.At the time of her conversation with Mr Carter she was standing in front of Mr Carter's workbench, about one step inside the doorway with the doorway just behind her shoulders. Mr Carter was standing on the other side of his workbench;[56]
2.She did not consider her conversation with Mr Carter to be a private conversation. She did not consider the location of the conversation or the subject matter of the conversation to be private;[57] and
3.Mr Carter is always in his shop and that is where people go and see him.[58]

The recording of the conversation

[56] ts 10 - 11, 16 June 2022.

[57] ts 19 and 22, 16 June 2022.

[58] ts 23, 16 June 2022.

I have listened to the recording of the conversation. The recording is of the entirety of the conversation between the appellant and Mr Carter.
Throughout much of the recording background noise from the shopping centre can be heard. On occasions the background noise consists of what sounds like barely discernible voices.
On at least two occasions it is possible to hear a child's raised voice in the background. Although the child's voice is a little easier to hear than the other barely discernible voices that can be heard as part of the general background noise, it is still impossible to decipher what the child is saying.[59] Indeed, it is not even possible to tell if a different child is talking on each of the two occasions.
[59] The child's voice can be heard at 9 minutes 16 seconds in the recording and at 10 minutes into the recording.
On a number of occasions it is possible to hear a person cough.[60] On the first of these occasions it sounds to me as though it is Mr Carter who coughs. I am unable to tell if it is Mr Carter who coughs on the subsequent occasions. The coughing is in any event not altogether easy to hear.
[60] The coughing can be heard at the following times in the recording: 1 minute 41 seconds, 11 minutes 58 seconds and 13 minutes 48 seconds. In the course of her oral submissions the appellant's counsel submitted that a person can be heard coughing at 3 minutes 15 seconds into the recording. Although nothing turns on the issue I am unable to hear a person cough at this point in the recording.
On one occasion it is possible to hear a phone ringing.[61] The ringing tone sounds to me as though it is emanating from a landline phone. Although it is difficult to be certain, given the volume of the ringing it sounds as though the phone is in the shop. The ringing of the phone can only be heard for a relatively short time. It is not possible to hear anyone answer the phone.
[61] The ringing can be heard at 9 minutes 43 seconds into the recording.
At various times throughout the recording fairly loud background noise, other than background noise from the shopping centre, can be heard. This additional background noise sounds to me to be noise created by Mr Carter performing his picture framing work in the workshop while he is talking to the appellant.
On occasions it is not easy to hear on the recording everything that Mr Carter said.
The recording does not, in my view, support Mr Carter's evidence that the conversation was a 'soft conversation'. To my ear, during the conversation Mr Carter and the appellant spoke at a 'normal' volume bearing in mind their proximity to each other. For some short periods of time the 'normal' volume increases slightly. These increases tend to coincide with Mr Carter making additional noise by undertaking his picture framing work. However, my view overall is that neither Mr Carter nor the appellant spoke unusually softly or unusually loudly.

The magistrate's reasons for finding that the conversation was a 'private conversation'

The magistrate identified two 'substantive issues' for his determination. First, whether the appellant had 'made out' a public interest defence. Second, whether the recorded conversation between Mr Carter and the appellant was a 'private conversation' within the meaning of s 3(1) of the Act.[62]
[62] ts 52 - 53, 16 June 2022.
After reciting the definition of 'private conversation' contained in s 3(1) of the Act the magistrate said the following:[63]
In determining whether this particular conversation was private, I need to consider the subjective intention of the parties and also undertake an objective assessment looking to the circumstances as a whole including the location and environment in which the recording took place. In some instances a conversation even occurring in a public place but in circumstances which suggests [sic] that the parties could not have anticipated that anyone else in the immediate vicinity would overhear that conversation, that conversation will still be a private conversation despite the fact that it occurred in, say, a park or a hallway or the side of a road in which … the potential exists for it to be overheard by someone perhaps unseen.
The characterisation of whether it's a private conversation depends significantly upon the circumstances of the particular conversation and whether those circumstances suggest that it may reasonably be taken to indicate that one - at least one of the parties desired the conversation to be heard only by themselves. Some of the circumstances that are relevant, in my view, to that characterisation concern the location of the conversation. The conversation occurred within a room within a store. That room was described as a workplace.
The evidence from Mr Peter Carter was that there was a wall separating that particular room from the store more generally. He described it as a private area. It isn't the case that the two have retreated into what appears to be a private area to conduct this conversation, but, rather, Mr Carter was present within that smaller room within the store before he was approached by [the appellant]. I need to also consider the nature of the topics and the general nature of the discourse between the two in terms of characterising whether this was a private conversation in the sense that the circumstances may suggest - really suggest that one or both parties intended these matters to be private.
The various topics included homelessness. Unfortunately, the topics also included issues such as suicide. Mr Carter certainly in his evidence characterised this as a private conversation. In my view, in all of those circumstances given, the conversation occurred in the workshop or the office in circumstances where there didn't appear to be anyone in the immediate vicinity, albeit there may have been or there was a separate employee or someone working at what was described, I think, as a travel agency within the store more generally.
So despite those circumstances, that person being six metres away in the evidence, particularly having regard to the nature of what was discussed between the parties, in my view, it is clear that the conversation was a private conversation and there are at a minimum reasonable grounds for believing that at least one party to that conversation intended the subject matter of the discussion to be private between the two of them…
[63] ts 53 - 54, 16 June 2022.
Having made the above statements the magistrate turned to deal with other matters including the public interest defence. Then, at the end of his reasons, after dealing with the public interest defence, and immediately before proceeding to find the appellant guilty of the offence and entering a judgment of conviction against her, the magistrate stated that it followed from his reasons that the 'elements of [the] offence are made out beyond reasonable doubt'.[64] His Honour stated that it had been established that the recording occurred, and that it had been 'established beyond…reasonable doubt that the conversation itself was a private conversation'.[65]

Submissions of the parties

Appellant's submissions - alleged error of law

[64] ts 57, 16 June 2022.

[65] ts 57, 16 June 2022.

The appellant submits, in essence, that the magistrate failed to expressly address in his reasons the exclusionary provision of the definition of 'private conversation', that it cannot be inferred from what his Honour did say that despite failing to expressly address the exclusionary provision he nonetheless did so, and that therefore the only conclusion that can reasonably be drawn is that his Honour failed to determine if the prosecution had proved beyond reasonable doubt that the exclusionary provision did not apply. The appellant submits that the magistrate's failure to determine if the prosecution had proved beyond reasonable doubt that the exclusionary provision did not apply was a material error of law that gave rise to a substantial miscarriage of justice.

Appellant's submissions - alleged error of fact

The appellant submits that undisputed evidence adduced at trial established the following facts:[66]
1.The appellant was standing at the doorway to the private workshop area of the shop;
2.The shop was open to the public at the time of the conversation;
3.The conversation took place during the shop's business hours;
4.There was another employee in the shop while the conversation was taking place;
5.The employee was approximately 6 metres away from Mr Carter and the appellant;
6.Mr Carter and the appellant were not whispering or speaking in hushed tones as evidenced by the recording of the conversations;
7.The layout of the shop; and
8.The location of the shop in a shopping centre in which there were other people.
[66] Appellant's Submissions dated 17 January 2023 (Appellant's Submissions), par 38.
In relation to the presence of the employee in the shop, the appellant further submits that the evidence established that Mr Carter was aware of the employee's presence in the shop, that there was no evidence adduced to suggest that the employee was not free to leave her desk and move around the shop and that the diagram of the shop recently drawn by Mr Carter shows that the employee could have moved around certain parts of the shop (including to a position slightly closer to the door of the workshop) without Mr Carter having been in a position to see her from his position in the workshop.
In relation to the recording of the conversation, the appellant submits that given that the background noise and other sounds that I have referred to above clearly travelled to where Mr Carter and the appellant were talking, then 'the same would have applied in reverse'.[67]
[67] Appeal ts 16, 27 March 2023.
The appellant submits that having regard to the established facts specified in par 82 above and the matters specified in par 83 - 84 above, it was not reasonably open to the magistrate to find that the conversation was not carried on in circumstances in which Mr Carter ought reasonably to have expected that the conversation may be overheard.[68] Accordingly, the appellant further submits that it was not reasonably open to the magistrate to find that the prosecution had proved that the conversation was a 'private conversation'.[69]

Respondent's submissions - alleged error of law

[68] Appellant's Submissions, par 38.

[69] Appellant's Submissions, par 39.

The respondent submits, in essence, that on reading the magistrate's reasons as a whole it is clear that his Honour did address the exclusionary provision of the definition of 'private conversation' and that he did find that the State had proved beyond reasonable doubt that the exclusionary provision did not apply. The respondent further submits that even if contrary to his primary position the magistrate did make the alleged error of law, the error did not give rise to a substantial miscarriage of justice because the evidence adduced at trial proved beyond reasonable doubt that the exclusionary provision did not apply.

Respondent's submissions - alleged error of fact

The respondent does not dispute that the facts identified by the appellant were established by the evidence.
The respondent submits that the recording of the conversation does not demonstrate that it was not reasonably open for the magistrate to find that the conversation between the appellant and Mr Carter was not a conversation which Mr Carter ought reasonably to have expected may be overheard.[70] The respondent submits that the conversation occurred in a private area which, save for the doorway, was enclosed by a padded wall. The respondent submits that the presence of another employee in the shop does not establish that it was not reasonably open for the magistrate to find that the conversation between the appellant and Mr Carter was not a conversation that Mr Carter ought reasonably to have expected may be overheard.[71] The respondent submits that simply because a person might have overheard the conversation could not of itself be sufficient to give rise to a reasonable doubt as to whether the exclusionary provision applied.[72] The respondent submits that the entirety of the circumstances of the conversation proved beyond reasonable doubt that the conversation was not one that was carried on in circumstances in which Mr Carter ought reasonably to have expected that the conversation may be overheard.[73]

Analysis and decision - alleged error of law

[70] Respondent's Outline of Submissions dated 17 March 2023 (Respondent's Submissions), par 39.

[71] Respondent's Submissions, par 40.

[72] Respondent's Submissions, par 42.

[73] Respondent's Submissions, par 42.

In dealing with the appellant's allegation that the magistrate made an error of law by failing to find that the exclusionary provision did not apply, it is at the outset worth remembering that having regard to the context in which magistrates conduct their judicial business it is not appropriate to scrutinise reasons for decision given by magistrates with a fine tooth-comb or with an eye keenly attuned to the identification of error.[74] Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated.[75] A magistrate's reasons for decision must be read as a whole and in context.
[74] Harper v Page [2004] WASCA 267 [24]; Strahan v Brennan [2014] WASC 190 [90]; Willenberg v Downey [2015] WASC 282 [61].
[75] Strahan v Brennan [90]; Willenberg v Downey [61].
In my opinion the magistrate did not make the error alleged. The magistrate recited the entirety of the definition of 'private conversation' contained in s 3(1). Immediately after doing so the magistrate stated that in determining whether the conversation between Mr Carter and the appellant was private he needed to consider the subjective intention of the parties 'and also undertake an objective assessment looking at the circumstances as a whole including the location and environment in which the recording took place' (emphasis added). The magistrate then proceeded to make the point that even where a conversation occurs in a public place, the circumstances can suggest that the parties to the conversation 'could not have anticipated that anyone else in the immediate vicinity would overhear that conversation' (emphasis added). Further, some of the circumstances that were expressly referred to by the magistrate as being relevant to his determination of whether the conversation was a 'private conversation', specifically the location of the conversation and the absence of any person in the immediate vicinity of the conversation, were clearly pertinent to the question whether the prosecution had proved beyond reasonable doubt that the exclusionary provision did not apply.
In my opinion it is tolerably clear from the magistrate's express recital of the definition of 'private conversation' contained in s 3(1), and the statements made by the magistrate referred to in the preceding paragraph read together with his Honour's identification of the circumstances relevant to his determination of whether the conversation between Mr Carter and the appellant was a 'private conversation', that his Honour was conscious of the need to, and did, decide that the prosecution had proved beyond reasonable doubt that the exclusionary provision did not apply. In my view, the magistrate's reference to the need to undertake an 'objective assessment' was an obvious reference to the objective exclusionary provision of the definition of 'private conversation'. In my opinion the magistrate's reference to circumstances suggesting that parties to a conversation 'could not have anticipated' that anyone else in the immediate vicinity would overhear the conversation was an obvious reference to the 'ought reasonably to expect' component of the exclusionary provision of the definition of 'private conversation'.
In summary, in my opinion it is tolerably clear from the magistrate's reasons for decision read as a whole that his Honour found that given the conversation occurred in the workshop area of Mr Carter's shop (which was separated from the rest of the shop by a wall and was described by Mr Carter as a private area), given that there was nobody in the immediate vicinity of where the conversation occurred and given the subject matter of the conversation, the prosecution had proved that the conversation was a 'private conversation' in that:
1.the conversation had been carried on in circumstances that may reasonably be taken to indicate that Mr Carter desired it to be listened to only by himself and the appellant; and
2.the conversation was not carried on in circumstances in which Mr Carter and the appellant, or at least Mr Carter alone, ought reasonably to have expected that the conversation may be overheard.
I acknowledge, as the appellant points out, that the magistrate did not expressly refer to the burden and standard of proof in the context of determining if the conversation the subject of the charge was a 'private conversation'.[76] However, it is obvious from the statements made by the magistrate at the end of his reasons referred to in par 80 above that the magistrate was aware that the prosecution bore the burden of proving beyond reasonable doubt that the conversation was a 'private conversation' and that his Honour was, for the reasons he had given, satisfied beyond reasonable doubt that the conversation was a 'private conversation'.
[76] Appellant's Submissions, par 30.
For the reasons I have stated the alleged error of law is not established.

Analysis and decision - alleged error of fact

In dealing with the parties' competing submissions in relation to the alleged error of fact it is, at the outset, worth making the well-established point that an appellate court must not set aside a finding of fact based on the credibility of a witness because it thinks that the probabilities of the cases are against that finding of fact. If the finding of a magistrate depends to a substantial degree on the magistrate's assessment of the credibility of a witness, the findings must stand unless it can be shown that the magistrate 'has failed to use or has culpably misused [their] advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'.[77]
[77] Ledgerton v Ambrosini [2023] WASCA 16 [60].
The conversation took place in Mr Carter's private workshop. The workshop is a room that is at the rear of the shop and is clearly separated from the area of the shop to which customers have general access. The workshop is enclosed by gyprock padded walls. The only way to enter the workshop is through a small door which is situated near the end of the counter at the rear of the public area of the shop. The appellant was in the workshop, or at least standing just inside the doorway of the workshop, when she was speaking to the respondent.
Throughout the conversation Mr Carter and the appellant spoke at a normal volume level and in normal tones of voice. They did not speak loudly. At various points during the conversation Mr Carter, as is revealed by the recording, was making a considerable amount of noise undertaking his picture framing work.
The only person in the shop for the entirety of the conversation between Mr Carter and the appellant was Mr Carter's employee who was at the travel agency desk situated in the shop which is about 6 m away from where Mr Carter and the appellant were talking in the workshop. As is revealed by Mr Carter's recently drawn diagram of the interior of the shop,[78] which is Annexure A to these reasons, the doorway to the workshop does not face towards where the employee was sitting. Rather, the doorway of the workshop faces the front of the shop and the employee was sitting to the left of the doorway. One of the walls of the workshop was between Mr Carter and the appellant on the one hand and the employee on the other.
[78] Exhibit 1 on the appeal.

True it is that there was no evidence adduced to suggest that Mr Carter's employee was not free to leave her desk and move around the shop. However, nor was there any evidence adduced to suggest that as an employee working in a travel agency, as opposed to a sales assistant in the shop, there would have any reason for the employee to leave her desk and wander around the shop. It was never suggested to Mr Carter that his employee could have left, or did leave, her desk while he was talking to the appellant. Ultimately, the undisputed evidence given by Mr Carter was that his employee was at her desk at the time of his conversation with the appellant. In any event, even if it is assumed in the appellant's favour that the employee might have got up from her desk for a short period of time while Mr Carter was speaking to the appellant and in doing so moved slightly closer to the doorway of the workshop, this does not provide a basis for concluding that the prosecution failed to prove that the conversation was not carried on in circumstances in which Mr Carter ought reasonably to have expected that the conversation may be overheard. People speaking to each other in a room which is largely enclosed and in which no other person is present do not ordinarily expect their conversation to be overheard or eavesdropped on notwithstanding that it might be possible for other persons with sufficiently acute hearing who are outside the room but relatively close by to hear the conversation or at least small portions of it.[79]
[79] Poland v Hedley [36].
It is the position that background shopping centre noise, including indecipherable voices of persons in the shopping centre, can be heard in the recording of the conversation. It can therefore be inferred that this background noise would have been audible to Mr Carter and the appellant. However, the fact that the general 'hum' created by multiple people in a shopping centre, and the fact that on occasions the indecipherable voice of an individual may have briefly carried through to the workshop, does not demonstrate that Mr Carter's conversation with the appellant would have been overheard by anyone in the shopping centre who happened to be passing the front of the shop. It is simply not correct to assert that because general background noise from the shopping centre, including indecipherable voices, would have been audible to Mr Carter and the appellant, that their conversation would have been audible to people in the shopping centre. This is particularly so given the noise that Mr Carter made during the conversation on a number of occasions and for periods of time as a result of carrying out his picture framing work.
Mr Carter's evidence was that it would not have been possible for anyone outside of the workshop to have heard his conversation with the appellant.
The magistrate found that Mr Carter gave evidence in 'a clear and frank way'.[80] The magistrate found that it seemed to him that Mr Carter gave 'frank evidence without regard to how the evidence assisted his position in terms of these proceedings'.[81]
[80] ts 54, 16 June 2022.
[81] ts 54, 16 June 2022.
In my opinion, taking into account the matters to which I have referred in the preceding nine paragraphs, it was reasonably open for the magistrate to find that the prosecution had proved beyond reasonable doubt that the conversation was not one that was carried on in circumstances in which Mr Carter ought reasonably to have expected that the conversation may be overheard.[82] Accordingly, I am not persuaded that the magistrate erred as alleged.

Summary

[82] Respondent's Submissions, par 42.

The ground of appeal has not been made out. Although, subject to the issue of the requested extension of time, I would grant leave to appeal on the ground I would dismiss the ground.

Ground 2 - alleged error in finding that there were no reasonable grounds for believing that the use of the listening device was in the public interest

Ground 2 of the appellant's grounds of appeal is in the following terms:
The learned trial Magistrate erred in fact in finding that there were no reasonable grounds for believing that the use of the listening device was in the public interest.

Relevant statutory provisions and applicable legal principles

Section 5(2)(d) of the Act provides that s 5(1) 'does not apply to the use of a listening device in accordance with Part 5'.
Part 5 of the Act deals with the use of listening devices in the public interest. Section 26(1) of the Act, which appears in pt 5, provides as follows:
A person who is a party to a private conversation may use a listening device to record or monitor the private conversation if a principal party to the private conversation consents expressly or impliedly to that use and there are reasonable grounds for believing that the use of the listening device is in the public interest.
Section 3(1) of the Act defines 'principal party' to mean 'in relation to a private conversation, a person by or to whom words are spoken in the course of the conversation'.
Section 24 of the Act provides the following non‑exhaustive definition of 'public interest':
public interest includes the interests of national security, public safety, the economic well‑being of Australia, the protection of public health and morals and the protection of the rights and freedoms of citizens.
Accordingly, if a person uses a listening device to record a private conversation to which they are a party in the circumstances specified in s 26(1) of the Act, the use of the listening device to record the private conversation will be lawful and not constitute the commission of an offence against s 5(1)(b) of the Act.
In Pihema v The State of Western Australia,[83] Jenkins J said the following in relation to s 26(1) of the Act:
[83] Pihema v The State of Western Australia [2017] WASC 282 [29].
There is no binding authority on the construction of the [Act] s 26(1). However, relying on the High Court's decision in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 and the Court of Appeal's construction of the similar provision in the [Act] s 5(3)(d) I was, and am, of the opinion that:
(a)the word 'reasonably' imports an objective test. That is, there must be objectively reasonable grounds for believing that the use of the listening device is in the public interest;
(b)for s 26(1) to apply there must be facts which are sufficient to induce in a reasonable person a belief that the use of the listening device is in the public interest. See George v Rockett [8];
(c)it must appear to the judge determining legality, not merely to the person using the listening device, that reasonable grounds for believing that the use of the listening device is in the public interest exist. See George v Rockett [8];
(d)it is not necessary that the judge holds that belief. See George v Rockett [7];
(e)the objective circumstances do not need to establish on the balance of probabilities that the use of the listening device is in the public interest. 'Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture'. See George v Rockett [14];
(f)the determination of whether there are 'reasonable grounds for believing that the use of a listening device is in the public interest' is to be undertaken by reference to the facts and circumstances existing at the time of the use of the listening device; and
(g)what constitutes the 'public interest' must be ascertained by the application of the statutory definition of that phrase to the facts and circumstances of the particular case.[84]
[84] In referring to the Court of Appeal's construction of the similar provision contained in s 5(3)(d) of the Act, Jenkins J was referring to the decision in AW v Rayney which her Honour had referred to at [21] - [22] of her reasons.
I respectfully adopt Jenkins J's above cited statements as an accurate statement of the law relating to s 26(1).

Evidence relevant to whether there were reasonable grounds for believing that the use of the listening device was in the public interest

It is convenient to at this point refer to the evidence adduced at trial that is relevant to the allegation the subject of the ground of appeal. As is the case in relation to ground 1, the relevant evidence is comprised of some of the evidence given by Mr Carter and the appellant.

Mr Carter's evidence

Mr Carter gave the following evidence that on the appellant's case at trial was relevant to the question whether there were reasonable grounds for believing that the use by the appellant of her mobile phone to record the conversation was in the public interest:
1.He was the Mayor of Port Hedland at the time of the conversation;[85]
[85] ts 14, 15 June 2022.
2.As the mayor he could speak on behalf of the Town of Port Hedland;[86]
[86] ts 32, 15 June 2022.
3.He and the appellant had previously spoken about a whole range of things including affordable housing in the town;[87]
[87] ts 8, 15 June 2022.
4.Housing was a concern for the appellant and for the whole town;[88]
[88] ts 17, 15 June 2022.
5.The appellant was about to be evicted and she had come to see him for help with her housing issue because of the position that he held;[89]
[89] ts 16, 15 June 2022.
6.Housing is not an issue for local government. It is an issue for the State government. However, part of his job as mayor is to advocate to the State government for more housing and to try and help people in the community to obtain affordable housing. Council was working as hard as it could to get more housing for the town. Local government's role is to advocate to the State government for housing;[90]
[90] ts 16, 35 - 39, 15 June 2022.
7.The Stevens Street Retirement Home (Home) that was situated on Stevens Street in Port Hedland was on land that was owned by the State Government. The Town of Port Hedland had a management order over the land on which the Home was situated. The Town of Port Hedland gave the management order back to the State Government from which time the town had no control over what could happen on the land apart from planning policies. He does not recall when this occurred. It may have occurred after he resigned as a councillor and during the 12-month period that the Town of Port Hedland was run by a Commissioner (which was prior to him becoming mayor - he became mayor at the end of the Commissioner's 12-month period). However, he cannot be 100% certain of this.[91]
8.The Home was a controversial issue at the time. The Home was demolished because it had fallen into disrepair and was unsafe;[92]
9.The minutes of a Council meeting on 28 April 2021 (shown to him in cross-examination) record that on that date a motion was passed by Council deferring 'any further consideration to commence construction of an aged persons' accommodation facility at the Stevens Street site until such time as the Department of Water and Environmental Regulation's review of the short-term objectives of its Port Hedland Dust Program are completed';[93]
10.The minutes of a Council meeting on 29 September 2021 (shown to him in cross-examination) record that a response given by the Town of Port Hedland's Director of Regulatory Services to a question about whether there was going to be a facility in the town to house elderly people, was that '[a]s per the decision [on 28 April 2021] no further action had been taken to progress design or construction of an aged persons accommodation facility at the Stevens Street site', that 'the provision of social housing including aged accommodation is not a function generally undertaken by Local Government', and that 'the Department of Communities and other private agencies…take on this role';[94]
11.It is well known to Council that issues to do with Stevens Street and issues to do with housing are of public interest;[95]
12.The Town of Port Hedland had previously been involved in the running of the Home;[96]
13.In 2020 the Commissioner had expressed the opinion that the Town would rebuild an aged persons' accommodation facility on the Stevens Street site;[97]
14.Retirement village housing is not within the scope of local government power. A retirement village is 'one of those things' for which local government advocates and tries to get State government involved in;[98]
15.It is correct to say that 'there has been so many different answers' given in relation to what was going to occur on the Stevens Street site. However, the Town of Port Hedland cannot do anything on the site until the completion of the review of the short-term objectives of the Port Hedland dust program in 2024;[99] and
16.The appellant had previously talked to him about her housing situation and he had made previous comments to her about going and sleeping under a tree.[100]
[91] ts 40 - 41 and 48, 15 June 2022; exhibit 4.
[92] ts 41 and 48, 15 June 2022.
[93] ts 42 - 43, 15 June 2022.
[94] ts 44, 15 June 2022; exhibit 4.
[95] ts 47, 15 June 2022.
[96] ts 48, 15 June 2022.
[97] ts 48, 15 June 2022.
[98] ts 49, 15 June 2022.
[99] ts 42 and 48, 15 June 2022.
[100] ts 50, 15 June 2022.
The Council minutes that were shown to Mr Carter in the course of cross-examination were tendered by the appellant.[101]
[101] ts 2, 16 June 2022; exhibit 4.
During cross-examination Mr Carter confirmed that on 16 November 2021, following Channel 7 reporting on his conversation with the appellant, he issued a statement in which he said, with reference to the report, that the appellant had come to his place of business to raise matters 'well outside of [his] control and…mandate as mayor', that he was not speaking on behalf of the Town of Port Hedland or the Council during the conversation, that he accepted that comments he made during the conversation 'in the heat of the interaction were wrong and inappropriate', that the matters he had discussed with the appellant were 'complex and private', that he apologised for any offence he caused to the appellant and that the appellant's wellbeing was a matter of concern to him.[102] Mr Carter testified that his statement was accurate and not false.[103]

Appellant's evidence

[102] ts 32 - 36, 15 June 2022; exhibit 3.

[103] ts 34 and 35, 15 June 2022; exhibit 3.

The appellant's evidence that was on her case relevant to the question whether there were reasonable grounds for believing that the use by her of her mobile phone to record the conversation was in the public interest was as follows:
1.On the Friday before she was due to be evicted she went to see Mr Carter as mayor 'as one last hope'. She was going to be evicted, had nowhere to go and was desperate;[104]
[104] ts 9, 16 June 2022.
2.For a period of six to seven months she had been speaking to Mr Carter about affordable accommodation for seniors. She had been visiting him in his shop quite regularly and every time she went there she was getting a different story;[105]
[105] ts 9, 16 June 2022.
3.When she walked into his shop on the day in question she 'had a gut feeling' and pressed the record button on her phone so that she 'could have a clear picture or recollection of [their] conversation regarding on what he was going to be doing or not going to be doing';[106]
[106] ts 9 - 10 and 23, 16 June 2022.
4.All she wanted was for the local government to advocate on behalf of seniors in the town;[107]
[107] ts 10, 16 June 2022.
5.The Town of Port Hedland had previously been involved in the running of the Home;[108]
[108] ts 12, 16 June 2022.
6.When the Commissioner had been in charge of the Town of Port Hedland he put out a statement in which he said that an aged care facility would be re-built on the Stevens Street site;[109]
[109] ts 15, 16 June 2022.
7.The Town of Port Hedland's position changed in around 2021 in that the rebuilding of the aged care facility was 'suddenly' no longer a Town of Port Hedland issue. This was at the time that Mr Carter was the mayor;[110]
[110] ts 17, 16 June 2022.
8.She was having discussions with Mr Carter as mayor about the issue of Stevens Street. He said that it was nothing to do with him and was an issue for the State and Federal governments. On another day he would say that he was going to be doing everything to try and find affordable housing. Then, when she would go back to see him in the following week, he would say, 'I forgot to meet with this guy';[111]
[111] ts 17, 16 June 2022.
9.She went to Council and raised her issues at Council 'once [she] was homeless'. She made 'a couple of statements there' and was called a liar;[112]
[112] ts 17, 16 June 2022.
10.As part of advocating for herself and others in relation to housing issues, she also had an interview with a newspaper but they did not want to report the story 'because they had to have evidence'. She was telling the newspaper, 'what Mayor Carter had said and etcetera';[113]
[113] ts 18, 16 June 2022.
11.Before speaking to the newspaper, she had met with the 'Opposition Minister of Housing' who was in town at the time and he listened to her story. She was trying to be a voice for herself and other seniors in the town who were in the same situation. The opposition minister took the matter to Parliament and it was addressed there;[114]
[114] ts 18, 16 June 2022.
12.GWN 'got onto the story via the Parliament' and they asked her if she would do an interview;[115]
[115] ts 17, 16 June 2022.
13.Prior to the date of the relevant conversation, Mr Carter, in telling her what she could do when she became homeless, said to her that there were plenty of trees around town, that she could go and live 'there' and that she could 'just park at the shire building'. When she told other people that Mr Carter had been saying these things to her, they did not believe that a person in the position of mayor would be saying things like that. It was his word against hers. It was on 'those grounds, possibly, and of being then of public interest, which accommodation is' that she 'had a gut feeling to press that record button on [her] phone, because…people weren't believing [her] that the mayor was telling [her] to live under a tree and use the public toilets…';[116]
14.She did not think that she was doing anything wrong when she did the recording because housing is of public interest;[117]
15.She did not ask for Mr Carter's permission to record the conversation because 'she thought it was of public interest';[118]
16.The media requested that she give them the recording of her conversation with Mr Carter and said that without the recording they would not publish. At the time that she recorded the conversation she had no intention of passing the recording onto the media. She made the recording so that she had a 'clear picture' for herself;[119]
17.She only provided the recording to the media because they wanted to run a story and 'their editor told them they couldn't do it if they didn't have proof' of what the mayor had said about affordable housing;[120]
18.She had been told different stories every time she discussed with Mr Carter the issue of housing in the town. She did not make the recording with malicious intent. She made the recording 'to have a clear picture in [her] mind of what the intentions of the town and the mayor were regarding public housing for the residents and senior people of [the] town';[121]
19.She recorded the conversation for herself 'to make it clear, because there [were] different stories every time [she] spoke to the mayor about housing';[122] and
20.When she walked into Mr Carter's shop and pressed the record button on her phone, she did not think that he was going to make any comments about suicide. Her intention was to record a conversation about housing.[123]

The fact that the appellant wanted to be able to have for her own purposes an accurate record of what Mr Carter had said was not, in my opinion, a fact that was sufficient to induce in a reasonable person the belief that her use of her phone to record the conversation was in the public interest. To put the matter another way, the fact that the appellant recorded the conversation because she wanted to have for her own purposes an accurate record of the conversation was not sufficient to establish that there were objectively reasonable grounds for believing that the appellant's use of her phone to record the conversation was in the public interest.
However, and as I have already indicated, the appellant also testified as follows:
1.Prior to the date of the recorded conversation Mr Carter, in telling her what she could do when she became homeless, said to her that there were plenty of trees around town, that she could live 'there', that is, under the trees and that she could park at the shire building;
2.When she told other people that Mr Carter had been saying these things to her they did not believe that a person in the position of mayor would say such things. It was Mr Carter's word against hers; and
3.'[O]n those grounds possibly, and of then being public interest, which accommodation is, I had a gut feeling to press that record button on my phone, because…people weren't believing me that the mayor was telling me to live under a tree and use the public toilets'.
The appellant's evidence as set out in the preceding paragraph was not challenged by the prosecution. It was not suggested to the appellant that Mr Carter had never said to her words to the effect that if she became homeless she could live under trees in the town and park in the car park at the shire building. This is unsurprising given that Mr Carter in his evidence confirmed that he had previously made comments to the appellant 'about going and sleeping under a tree'.
It is the position, as the respondent points out, that the appellant did not go on to expressly state in her evidence that she recorded her conversation with Mr Carter so that if Mr Carter again said to her that if she became homeless she could live under a tree, or something similar, she would be able to produce an accurate record of the statements if any subsequent account by her of this portion of the conversation was challenged or disbelieved. However, this was, in my opinion, the clear effect or import of this aspect of the appellant's evidence. In short, I am satisfied that the appellant's undisputed evidence was that one of the reasons that she decided to record the conversation was so that if Mr Carter repeated his statements to the effect that if she became homeless she could live under a tree, she would be able to produce an accurate record of these statements if any subsequent account by her of this portion of the conversation was challenged or disbelieved.
Accepting that one of the appellant's reasons for using her phone to record the conversation was as I have stated in the previous paragraph, the question that remains is whether the fact that the appellant wanted the recording for this purpose is sufficient to establish on the balance of probabilities that there were objectively reasonable grounds for believing that the appellant's use of her phone to record the conversation was in the public interest. In my opinion this question must be answered in the affirmative.
Prior to the recorded conversation the appellant had been acting as an advocate for elderly people in relation to housing in Port Hedland. She had, in performing this advocacy role, previously spoken to Mr Carter as the Mayor of the Town of Port Hedland in relation to housing in Port Hedland and more specifically about her impending eviction from her home. In one or more of these prior conversations Mr Carter had made statements to the appellant to the effect that if she became homeless she could live under trees in the town and use public toilets. When the appellant had informed others that Mr Carter had made these statements to her she had been disbelieved. Further, on the day in question the appellant was intending to speak to Mr Carter about the issue of available housing in Port Hedland and more specifically about the fact that she was going to be evicted from her home in 2 - 3 days time. In my opinion these facts, considered together, would induce in the mind of a reasonable person grounds for believing that it was in the public interest for the appellant to use her phone to record the conversation so that if Mr Carter again made statements to the effect that if she was rendered homeless she could live under trees in the town and use public toilets, she would have an accurate and permanent record of the statements. In my opinion there was a public interest in having an accurate and permanent record of any statement made by the Mayor of Port Hedland to the effect that if the appellant, an older member of the Port Hedland community, was evicted from her home and rendered homeless an option available to her was to live under trees in the town and make use of public toilets.
For the reasons I have stated I am satisfied that the magistrate did make an error of fact in finding that the appellant had failed to prove on the balance of probabilities that there were reasonable grounds for believing that her use of her phone to record her conversation with Mr Carter was in the public interest. The ground of appeal has been made out.

Ground 3 - alleged error in failing to consider whether the use of the listening device was reasonably necessary for the protection of lawful interests

Ground 3 of the grounds of appeal is expressed in the following terms:
The learned Magistrate erred in law by not considering whether the use of the listening device was reasonably necessary for the protection of the lawful interests of the appellant.

Relevant statutory provisions and applicable legal principles

Section 5(3)(d) of the Act is in the following terms:
(3)Subsection (1)(b) does not apply to the installation, use, or maintenance of a listening device by or on behalf of a person who is a party to a private conversation if -
(d)A principal party to the private conversation consents expressly or impliedly to that installation, use, or maintenance and the installation, use, or maintenance is reasonably necessary for the protection of the lawful interest of that principal party.
Accordingly, if a person uses a listening device to record a private conversation to which they are a party in the circumstances specified in s 5(3)(d) of the Act, the use of the listening device to record the private conversation will be lawful and not constitute the commission of an offence against s 5(1)(b) of the Act.
In AW v Rayney[143] Buss JA (McClure P agreeing) said the following in relation to s 5(3)(d):
In my opinion:
(a)The word 'necessary' connotes, in the context of s 5, 'appropriate or adapted' rather than 'essential or indispensible'. See, generally, Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 [39] (Gleeson CJ). See also [Sepulveda v The Queen [2006] NSWCCA 379; (2006) 167 A Crim R 108] [116] - [117].
(b)The word 'reasonably' imports an objective test. That is, the installation, use, or maintenance of the listening device must, objectively, be reasonably appropriate or adapted. See Amalgamated Television Services Pty Ltd v Marsden [2000] NSWCA 167 [20] - [22]; Sepulveda [118].
(c)The determination of whether something is 'reasonably necessary' involves the exercise of judgmental evaluation. See, generally, Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 [20] - [27] (Gleeson CJ).
(d)The determination of whether the use of a listening device is 'reasonably necessary' is to be undertaken by reference to the facts and circumstances, and upon the bases or grounds, existing at the time of the recording. See Marsden[20] - [22]; Violi v Berrivale Orchards Ltd [2000] FCA 797; (2000) 99 FCR 580 [23]; Sepulveda [118].
(e)The word 'protection', in the context of s 5, connotes defending, preserving or safeguarding the lawful interests of the principal party in question. See Sepulveda [120].
(f)What constitutes a person's 'lawful' interests must be ascertained from the facts and circumstances of the particular case. It may be said, generally, however that the word 'lawful' connotes, in the context of s 5, a right or interest which is not contrary to statute or general law. See, generally, Violi [28] and also the discussion in Sepulveda [121] - [126].
[143] AW v Rayney [57], [257]. See also Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 (S) [16].
The offence created by s 5(1)(b) is a simple offence. Section 5(3)(d) provides for a situation in which s 5(1)(b) 'does not apply' to the installation, use, or maintenance of a listening device by or on behalf of a person who is a party to a private conversation. In other words, s 5(3)(d), as the appellant accepts, creates an exception in respect of the offence created by s 5(1)(b). Accordingly, by virtue of s 78(3) of the CPA the onus is on an accused charged with an offence against s 5(1)(b) to prove on the balance of probabilities that the offence does not apply by reason of s 5(3)(d).

Magistrate's reasons

As I have already pointed out, the appellant's counsel did, in her opening address, but only as a consequence of questioning by the magistrate, assert that the appellant could be found not guilty on the basis of s 5(3)(d).
In his brief closing address the prosecutor did not make any reference to s 5(3)(d). The appellant's counsel, despite what she had said to the magistrate in her opening address, also did not make any reference to s 5(3)(d). In these circumstances it is unsurprising that the magistrate did not address s 5(3)(d) in his reasons for decision.

Parties' submissions

As I have already stated in dealing with ground 2, it is common ground between the parties that the appellant was a 'principal party' to the conversation with Mr Carter and that the evidence adduced at trial proved on the balance of probabilities that the appellant, as a 'principal party', consented to the use of the listening device, specifically her mobile phone, within the meaning of s 5(3)(d).

Appellant's submissions

The appellant acknowledges that her counsel at trial did not in her closing address argue that the defence provided for by s 5(3)(d) had been made out. However, the appellant submits that counsel's statement in her opening address, in response to the magistrate's questions, that she (the appellant) could be found not guilty on the basis of s 5(3)(d) was sufficient to alert the magistrate to the fact that the defence was relied upon and therefore also sufficient to require the magistrate to decide if the defence had been established. The appellant submits that in these circumstances the magistrate made an error of law in failing to decide whether she had proved on the balance of probabilities that her use of her phone to record the conversation was reasonably necessary for the protection of her lawful interests.
The appellant accepts that even if I find that the magistrate did make the alleged error of law I will, in light of s 14(2) of the CAA, necessarily dismiss the ground on the basis that the error did not give rise to a substantial miscarriage of justice unless I find that on the evidence adduced at trial she did prove the defence on the balance of probabilities.[144] In this respect the appellant submits that evidence adduced at trial did prove on the balance of probabilities that her recording of the conversation was reasonably necessary to protect her lawful interests. The evidence pointed to by the appellant in this respect is as follows:
1.Her evidence that the appellant had previously attended council meetings to make statements about housing and had been called a liar; and
2.Her evidence that Mr Carter had previously told her that there were plenty of trees around town where she could live and that when she spoke to people about what Mr Carter had said, other people did not believe that a person in the position of mayor would say things like that.
[144] Section 14(2) of the CAA provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
The appellant submits that the first of the above two specified aspects of her evidence was sufficient to prove on the balance of probabilities that her use of her phone to record her conversation with Mr Carter was reasonably necessary for the protection of her lawful interest comprised of her right to rebut or defend defamatory claims that she was a liar. The appellant submits that the second of the above two specified aspects of her evidence was sufficient to prove on the balance of probabilities that the use of her phone to record her conversation with Mr Carter was reasonably necessary for the protection of her lawful interest comprised of her reputation. The proposition underlying this second submission is that it can be inferred that if people were not believing the appellant's assertions that Mr Carter had told her that there were plenty of trees around town where she could live, her lawful interest comprised of her general (and presumably good) reputation was being damaged.

Respondent's submissions

The respondent submits that the appellant did not raise or rely upon the defence under s 5(3)(d) at her trial and that she should therefore not be permitted to raise the point on the appeal. The respondent submits that the appellant's trial counsel's passing reference to s 5(3)(d) in her opening address and in response to the magistrate's questions was not sufficient to put the defence squarely before the magistrate. The respondent submits that if the appellant had raised and relied upon the defence under s 5(3)(d) at her trial it would have been open to the prosecutor to cross-examine the appellant as to any asserted lawful interests and as to other steps that the appellant may have been able to take to protect those interests. The respondent submits that in these circumstances leave to appeal on the ground should be refused. In support of this ultimate submission the respondent places reliance on statements made by Martin CJ in Calandra v Civil Aviation Safety Authority.[145]
[145] Calandra v Civil Aviation Safety Authority [2015] WASCA 31 [19].
Further and in the alternative, the respondent submits that if I find that the defence under s 5(3)(d) was raised by the appellant at her trial and that consequently the magistrate made an error of law in not deciding if the defence had been established on the balance of probabilities, the ground of appeal should nonetheless be dismissed because the error did not occasion a substantial miscarriage of justice. In this respect the respondent submits that the evidence pointed to by the appellant was not sufficient to prove on the balance of probabilities that her recording of the conversation was reasonably necessary to protect her lawful interests.

Analysis and decision

The appellant's trial counsel did in her opening address, albeit only in response to the magistrate raising the issue of the availability of the defence, positively assert that the appellant could be found not guilty under s 5(3)(d). In my opinion this was just sufficient to raise the defence for the magistrate's consideration and consequently to require the magistrate to decide if the defence was made out. Accordingly, and not without considerable reluctance, I am forced to the conclusion that the magistrate did make an error of law by not considering whether the appellant had proved on the balance of probabilities that her use of her phone to record her conversation with Mr Carter was reasonably necessary for the protection of her lawful interests within the meaning of s 5(3)(d). Needless to say, the appellant's trial counsel's failure in her closing address to make submissions in relation to the defence, or at the very least to draw the magistrate's attention to the need to deal with the defence, was unsatisfactory. Counsel in failing to do these things did not provide the magistrate with the assistance that his Honour ought to have received.
Although I am persuaded that the magistrate did err as alleged, in my opinion the evidence adduced at trial fell well short of establishing on the balance of probabilities that the use by the appellant of her phone to record her conversation with Mr Carter was reasonably necessary for the protection of her lawful interests.
It can be accepted that the lawful interests of the appellant included the right to rebut or defend defamatory claims that she was a liar. However, the appellant at no stage gave evidence that Mr Carter, during Council meetings or on any other occasion, had ever called her a liar or cast aspersions on her honesty or reputation. Her evidence was only that she had gone to Council and raised her issues at Council and had made 'a couple of statements there' and was called a liar. This being the case her evidence failed to establish on the balance of probabilities that the use of her phone to record her conversation with Mr Carter was reasonably necessary for the protection of her lawful interest comprised of her right to rebut or defend defamatory claims that she was a liar made by some unspecified person or persons when she raised her issues at Council.
Further, the appellant's evidence was that she had raised her issues at Council 'once I was homeless'. That is, the appellant's evidence was that she had only been called a liar at Council after she was homeless. At the time of her conversation with Mr Carter the appellant had not been evicted and was therefore not homeless even though her eviction was soon to occur. In other words, the occasion or occasions on which the appellant, on her account, had been called a liar when she had raised her issues at Council occurred, on the face of it, after she recorded her conversation with Mr Carter.
In an attempt to deal with the temporal issue referred to in the previous paragraph, the appellant's counsel submitted that the appellant's evidence that she had raised her issues at Council 'once [she] was homeless' should not be read as meaning that she had raised her issues at Council once she had been evicted, but rather at a time when she was homeless 'in the sense that she is going to be evicted'.[146] In support of this submission the appellant's counsel pointed out that during her recorded conversation with Mr Carter the appellant asked Mr Carter, 'Where am I going to be parking seeing that now I'm homeless?'[147] Counsel argued that the fact that the appellant during her conversation with Mr Carter referred to herself as homeless at a point in time just prior to her eviction provides a basis for reading her evidence at trial that she raised her issues at Council 'once [she] was homeless' in the same way, that is, in the sense that she was about to be evicted.
[146] Appeal ts 19, 27 March 2023.
[147] The appellant made this statement approximately 8 minutes into the recording.
I do not accept counsel's submission. The ordinary meaning of the word 'homeless' is lacking a home.[148] The fact that the appellant used the word 'homeless' in the sense in which she did during her recorded conversation with Mr Carter is not, in my opinion, of itself sufficient to justify a finding that when the appellant used the word in her evidence she was intending to convey something other than the word's ordinary meaning. If the appellant was intending to convey that she raised her issues with Council once she had been notified that she was going to be evicted but prior to her eviction she could have said so. Of course, it needs to be borne in mind in this context that given that the onus was on the appellant to establish that the defence was made out on the balance of probabilities, the onus was also on her to establish to the same standard that her evidence was that she raised her issues with Council after she had been notified that she was going to be evicted but prior to her eviction. She failed to do so.
[148] Australian Concise Oxford Dictionary, (6^th ed, 2017), 674.

The fact that on the appellant's own evidence she was called a liar after she was homeless, that is, after she had recorded the conversation with Mr Carter, provides a further reason for concluding that she failed to establish on the balance of probabilities that the use of her phone to record her conversation with Mr Carter was reasonably necessary for the protection of her lawful interest comprised of her right to rebut or defend defamatory claims that she was a liar.
In summary, for the reasons I have stated, in my opinion the appellant did not prove on the balance of probabilities that her use of her phone to record her conversation with Mr Carter was reasonably necessary to rebut or defend defamatory claims that she was a liar. I state to avoid any doubt on the point that even if contrary to the view I have expressed the appellant's evidence to the effect that she raised her issues with Council and was called a liar by Council 'once [she] was homeless' should be read in the way contended for on her behalf, the fact that there was no evidence before the magistrate capable of establishing that Mr Carter had ever called her a liar or cast aspersions on her reputation is, in my opinion, of itself sufficient to preclude the conclusion that she proved on the balance of probabilities that her use of the phone to record the conversation was reasonably necessary for the protection of the asserted lawful interest.
I turn to the appellant's evidence to the effect that when she told people that Mr Carter had made statements to her to that if she became homeless she could live under a tree, they did not believe that a person in the position of mayor would say things like that.
I think that it is fair to say that in their submissions neither party dealt in any detail with the question whether the general reputation of a person is a lawful interest within the meaning of s 5(3)(d). The parties' focus of attention was on whether the evidence adduced at trial was capable of establishing the existence of the asserted lawful interest and, if it was, whether the appellant's recording of the conversation was reasonably necessary to protect the asserted lawful interest.
In my opinion there is a real question as to whether the general reputation of a person is a lawful interest within the meaning of s 5(3)(d). The context in which s 5(3)(d) appears is as an exception to the general prohibition stated in s 5(1)(b). Accordingly, although the term 'lawful interests' is capable of a broad construction and has, as is apparent from a review of the relevant case law, been interpreted as encompassing more than legal interests (in the sense of a legal right, duty or liability),[149] the context in which the term appears suggests that the term's meaning is not open ended. Further, s 5(3)(d) should not be interpreted in such a way as to undermine or render otiose the primary purposes underpinning s 5(1)(b).[150] With these considerations in mind, it is in my view arguable that it is too great a stretch to interpret 'lawful interests' as encompassing the nebulous concept of a person's general reputation. I note in this respect that neither party referred me to any decision in which the term 'lawful interests' has been interpreted as encompassing the general reputation of a person. My own research has failed to uncover any such decision.
[149] Violi v Berrivale Orchards Ltd [2000] FCA 797; (2000) 99 FCR 580 [28]; Sepulveda v The Queen [2006] NSWCCA 379; (2006) 167 A Crim R 108 [121] - [126] and the cases cited therein; Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 (S)[16].
[150] Sepulveda v The Queen [140] - [142].
For reasons that are apparent from what I say below, the question whether the general reputation of the appellant is a lawful interest within the meaning of s 5(3)(d) is not one in relation to which I need to express a concluded view to deal with the appellant's argument. Accordingly, and given that I did not receive detailed submissions on the point, I am not inclined to express a concluded view as to whether the general reputation of the appellant is a lawful interest within the meaning of s 5(3)(d). Rather, I will proceed, without deciding the point, on the assumption that the appellant's general reputation is a lawful interest for the purposes of the section.
In my opinion, the relevant aspect of the appellant's evidence was not sufficient to prove on the balance of probabilities that her use of the phone to record the conversation was reasonably necessary for the protection of a lawful interest comprised of her general reputation. I am of this opinion for two reasons.
First, the evidence adduced at trial was not sufficient to prove on the balance of probabilities that the appellant's general reputation was damaged or adversely affected as a consequence of a limited number of people not believing her assertions that the mayor had suggested that she live under a tree if she became homeless. Certainly the appellant did not give evidence to this effect. Further, in my view it cannot be safely inferred from the mere fact of the expressions of disbelief in response to the appellant's specific assertion that Mr Carter had suggested she live under a tree that the appellant's overall reputation as an advocate in relation to public housing in Port Hedland, or generally, was damaged.
Second, the evidence adduced at trial did not prove on the balance of probabilities that it was 'reasonably necessary', that is, objectively reasonably appropriate, for the appellant to record her conversation with Mr Carter to protect the lawful interest comprised of her reputation. More specifically, the evidence adduced at trial did not prove on the balance of probabilities that the appellant could not reasonably have protected her general reputation by means other than covertly recording the conversation. For example, the evidence did not prove on the balance of probabilities that the appellant could not have protected her general reputation by asking someone to accompany her to Mr Carter's shop and to remain present during her conversation with Mr Carter so that she had a witness to anything Mr Carter said. The appellant did not give evidence that this was not something she could have arranged. To give another example, the evidence did not prove on the balance of probabilities that the appellant could not have protected her general reputation by recording the conversation with Mr Carter's consent. If Mr Carter had been asked in cross-examination if he would have agreed to this occurring and testified that he would not have done so, then the appellant could obviously assert that she had proved on the balance of probabilities that such a means of protecting her lawful interest comprised of her reputation was not reasonably open to her. However, no such evidence was adduced.
For the reasons I have given, I am not persuaded that the appellant's evidence to the effect that people did not believe that Mr Carter had told her that she could live under trees in the town was sufficient to prove on the balance of probabilities that her use of her phone to record her conversation with Mr Carter was reasonably necessary for the protection of her lawful interests.
I summarise my conclusions in relation to this ground as follows.
I am satisfied that the magistrate made the alleged error of law and that the ground of appeal as pleaded is made out. I would therefore, subject to the question of an extension of time, grant leave to appeal on the ground. However, I would under s 14(2) of the CAA dismiss the ground on the basis that the established error of law did not occasion a substantial miscarriage of justice.

Application for extension of time

I return now to the appellant's application for an extension of time within which to appeal.
Ms Ajduk's affidavit reveals the following:
1.The appellant did not lodge with Legal Aid (WA) an application form seeking an opinion as to the merit of her applying for leave to appeal against her conviction until 15 July 2022 (that is, one day after the time for filing an application for leave to appeal expired); and
2.After 15 July 2022 the delay in filing the appeal notice was largely attributable to Ms Ajduk's work and leave commitments, the time that Ms Ajduk was required to take to review the matter, the difficulties that Ms Ajduk had in obtaining and accessing copies of materials relating to the trial held by Legal Aid's office in South Hedland and within Legal Aid's Content Management System, and the time that it took Ms Ajduk (through no fault of her own) to ascertain that neither the South Hedland Magistrates Court nor the police were in possession of one of the exhibits that was tendered at the appellant's trial which she wanted to review before determining the appropriate grounds of appeal.
It is therefore apparent from Ms Ajduk's affidavit that the greater portion of the delay in filing the appeal notice is not attributable to the conduct of the appellant. In these circumstances and given the conclusion that I have arrived at in relation to ground 2 of the application for leave to appeal, I am satisfied that it is in the interests of justice to grant the requested extension of time.

Orders

I will hear the parties as to the precise terms of the orders I should make to give effect to my decision. However, I would propose to make orders in the following terms:
1.The application for an extension of time within which to appeal is granted;
2.The application to adduce additional evidence on the appeal is allowed in part;
3.The application for leave to appeal is allowed;
4.The appeal is allowed;
5.The decision of the Magistrates Court on 16 June 2022 convicting the appellant of the offence the subject of charge PH 174 of 2022, the sentence imposed for the offence by the magistrate and other orders made by the magistrate in relation to the offence are set aside; and
6.In substitution for the decision made by the Magistrate's Court referred to in order 5 above, a verdict of not guilty and a judgment of acquittal are entered in respect of charge PH 174 of 2022.

ANNEXURE A

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
4 MAY 2023