EVIDENCE – Evidence Act 1995 (Cth) – discretion to admit evidence illegally obtained – relevance of State law concerning admissibility of evidence – wide public interest in exclusion of evidence illegally obtained
EVIDENCE – Listening Devices Act 1984 (NSW) – meaning of “necessary for the protection of the lawful interests” of a party – when a conversation “comes to the knowledge” of a person otherwise than as a result of the use of a listening device – relevance when court exercising federal jurisdiction
MARIO VIOLI, KEVIN VIOLI & DENNIS VIOLI trading as “VIOLI BROS.” v BERRIVALE ORCHARDS LIMITED
NG 317 of 1997
BRANSON J SYDNEY
14 JUNE 2000
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 317 of 1997
BETWEEN:
MARIO VIOLI, KEVIN VIOLI & DENNIS VIOLI trading as “VIOLI BROS.” Applicants
AND:
BERRIVALE ORCHARDS LIMITED Respondent
JUDGE:
BRANSON J
DATE:
6 JUNE 2000
PLACE:
SYDNEY
REASONS FOR DECISION
INTRODUCTION
On Tuesday 6 June 2000 I gave orally an outline of my reasons for ruling that certain evidence was admissible in this proceeding. The evidence in issue includes recordings of conversations made without the consent of one of the parties to the conversations. I announced at that time that I would publish written reasons for the ruling in due course. These are my written reasons.
In the proceeding the applicants claim relief against the respondent for breach of contract and, or in the alternative, on the basis that the applicants have suffered loss or damage by unconscionable or misleading or deceptive conduct engaged in by the respondent (ss 51AA, 52, 82 and 87 of the Trade Practices Act 1974 (Cth)). The case of the applicants relies to a significant degree on conversations said to have occurred between the first applicant, Alec Mario Violi (“Mr Violi”) and an employee of the respondent, Geoffrey Graeme Pumpa (“Mr Pumpa”). Some of the conversations relied upon by the applicants are admitted by the respondent to have occurred and some of the conversations are denied. As to most of the admitted conversations, there is a dispute as to the content of the conversations.
Two of the conversations relied upon by the applicants were recorded by Mr Violi. Mr Violi used a tape recorder in September 1995 to record a telephone conversation between himself and Mr Pumpa. Mr Violi also…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Violi v Berrivale Orchards Limited [2000] FCA 797
Case
[2000] FCA 797
Decision Date
CaseChat Overview and Summary
In the case of Violi v Berrivale Orchards Limited, the plaintiff sought to admit evidence that was obtained through the use of listening devices, which were installed without legal authorisation. The court was tasked with determining the admissibility of this evidence under the Listening Devices Act 1984 (NSW) and the Evidence Act 1995 (Cth). The legal issues that arose included the interpretation of the phrase "necessary for the protection of the lawful interests" of a party within the Listening Devices Act, and whether the admissibility of evidence obtained through the use of listening devices should be influenced by state law. Additionally, the court had to consider the relevance of state law concerning the admissibility of evidence when exercising federal jurisdiction.
The court found that the provision in the Listening Devices Act which rendered evidence obtained through the use of listening devices inadmissible, did not apply in this case. This was because the plaintiff had already participated in the conversations and had knowledge of them, which meant that the evidence was not obtained solely as a result of the use of the listening devices. The court also held that the purpose of the Listening Devices Act would be undermined if it was not construed as reaching to recordings of conversations and transcripts prepared from such recordings. The court concluded that the provision in the Act was to be construed as reaching to recordings of conversations and to transcripts prepared from such recordings.
The court found that the evidence obtained through the use of listening devices was admissible in the case, as the provision in the Listening Devices Act did not render it inadmissible. The court held that the phrase "necessary for the protection of the lawful interests" of a party within the Listening Devices Act should be interpreted broadly, and that the admissibility of evidence obtained through the use of listening devices should not be influenced by state law. The court also found that the relevance of state law concerning the admissibility of evidence should be considered when exercising federal jurisdiction, but that the ultimate decision on admissibility should be based on federal law.
The court made an order that the evidence obtained through the use of listening devices was admissible in the case. The court also made an order that the phrase "necessary for the protection of the lawful interests" of a party within the Listening Devices Act should be interpreted broadly, and that the admissibility of evidence obtained through the use of listening devices should not be influenced by state law.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
However, I am of the view that s 13(2)(b) has the effect of reversing that prima facie inadmissibility. Although Mr Violi is, for the purpose of s 13(1) of the Act, a person to whom knowledge of the conversations has come as a result of the use of a listening device, knowledge of the conversation has also come to him otherwise than in the manner referred to in that subsection. Knowledge of the conversations came to Mr Violi when he participated in the conversations. Consequently s 13(2) has the effect that s 13(1) “does not render any evidence inadmissible”. That is, s 13(1) does not render any evidence of the conversations that may be given by Mr Violi inadmissible; nor does it render inadmissible from Mr Violi any evidence obtained as a direct consequence of the conversations coming to his knowledge as a result of the use of the listening device. The intent of the legislature would appear to be that where a person would ordinarily be able to give evidence of a conversation otherwise than because of the use of a listening device (eg. from his or her recollection as a party to the conversation) the fact that he or she has obtained knowledge of the conversation as a result of the use of a listening device should not render his or her evidence inadmissible. Moreover, it would appear from the opening words of s 13(2) to be the intent of the legislature that in such a circumstance the best evidence of the conversation, and not merely the witnesses (presumably imperfect) recollection of it, should be available to the court. The evidence sought to be adduced from Mr Violi includes, in addition to evidence of his recollection of the conversations, evidence which establishes the provenance of the tapes on which the conversations are recorded and evidence intended to establish the accuracy of transcripts prepared from the recordings. The wording of s 13(1) is not entirely apt to reach to actual recordings of conversations and transcripts prepared from such recordings. As Mason CJ, Brennan and Deane JJ pointed out in Butera v Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180 at 184:“… a conversation can be proved by the oral testimony of anyone who heard it but that is not the only means by which a conversation may be proved. The courts have now accepted tape recordings as evidence of the conversations or other sounds recorded on the tape ….A tape recording may be used to produce a form of evidence which is different from both oral testimony and documentary evidence.” (citations omitted) I note incidentally that the concerns expressed by their Honours at 186 and 188 as to the admissibility of a transcript of a recording, and as to the use that may properly be made of a transcript, would now seem to be overtaken, at least in this Court, by s 48(1) of the Evidence Act 1995 (Cth) (“the Evidence Act”) (see, however, Eastman v The Queen (1997) 76 FCR 9 at 112-113). It is plain that the purpose of s 13(1) would be significantly undermined if the subsection were not construed as reaching to actual recordings and transcripts prepared from such recordings. I conclude that s 13(1) is to be construed as reaching to recordings of conversations and to transcripts prepared from such recordings. It may perhaps best be regarded as doing so by the indirect means of rendering inadmissible evidence of the circumstances in which the recordings were made – on the basis that such evidence was itself obtained “as a direct consequence of the conversations so coming to the knowledge [of the witness]” within the meaning of s 13(1)(b) of the Listening Devices Act.