WILKINSON and ASHER

[2018] FCWA 151

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: WILKINSON and ASHER [2018] FCWA 151

CORAM: O'BRIEN J

HEARD: 26 JULY 2018

DELIVERED : Ex tempore

FILE NO/S: PTW 4950 of 2016

BETWEEN: MR WILKINSON

Applicant

AND

MS ASHER

Respondent

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Dispute during trial in relation to tendering into evidence of recordings of telephone conversations between the parties – Recordings made without the mother’s knowledge or consent – Consideration of s 5 of the Surveillance Devices Act 1998 (WA) – Whether the recordings were reasonably necessary for the protection of the father’s lawful interest – Discretion to admit evidence even if illegally obtained – Where the potential probative value of the evidence outweighs proper concerns as to manner of collection - Mother’s objection dismissed

Legislation:

Surveillance Devices Act 1998 (WA) s 5, s 109, s 112, s 114

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Bannerman
Respondent	:	Ms Farmer

Solicitors:

Applicant	:	Bannerman Solicitors
Respondent	:	Scammell & Co.

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

AW v Rayney [2010] WASCA 161

Bunning v Cross (1978) 141 CLR 54

Kuruma v R [1955] AC 197

Miller v Miller (1978) 141 CLR 269

R v Ireland (1970) 126 CLR 321

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The issue I am required to determine is the objection on the part of the mother to the proposed tendering into evidence of recordings made by the father of their telephone conversations. It is common ground that those recordings were made without the mother’s knowledge or consent. It is, accordingly, common ground that prima facie they were made in breach of s 5 of the Surveillance Devices Act1998 (WA) (“the Act”).

2Section 5 of the Act is in the following terms:

Regulation of use, installation and maintenance of listening devices

(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)to record, monitor, or listen to a private conversation to which that person is not a party; or

(b)to record a private conversation to which that person is a party.

Penalty:

(a)for an individual: $5 000 or imprisonment for 12 months, or both;

(b)for a body corporate: $50 000.

(2)Subsection (1) does not apply to —

(a)the installation, use, or maintenance of a listening device in accordance with a listening device warrant issued under Part 4;

(b)the installation, use, or maintenance of a listening device in accordance with an emergency authorisation issued under Part 4;

(c)the installation, use, or maintenance of a listening device in accordance with a law of the Commonwealth;

(d)the use of a listening device in accordance with Part 5; or

(e)the use of a listening device resulting in the unintentional hearing of a private conversation.

(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 —

(a)that installation, use or maintenance is carried out in the course of that person’s duty as a law enforcement officer;

(b)that installation, use or maintenance is carried out by that person as instructed or authorised by a law enforcement officer in the course of an investigation into a suspected criminal offence;

(c)each principal party to the private conversation consents expressly or impliedly to that installation, use, or maintenance; or

(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 interests of that principal party.

3The first issue between the parties is the question of whether, notwithstanding the prima facie position, the relevant recordings fall within the exception which appears at s 5(3)(d) of the Act.

4For obvious reasons, there is no dispute that the father is a principal party for the purposes of that subsection and that having made the recordings he consented to them. The issue raised is whether the exception has been made out by the father establishing that the recordings were reasonably necessary for the protection of his lawful interests. Counsel for the mother referred in her submissions in that regard to the decision of the Court of Appeal in the matter AW v Rayney [2010] WASCA 161.

5In that judgment McLure P at [59] said the following about the exception referred to:

“Whether the use of a listening device is reasonably necessary is to be judged on the circumstances that existed at the time of its use. It is contended on behalf of Mr Rayney that the content of what is recorded is not relevant to an assessment of what is reasonably necessary because the content is not disclosed until after the decision to use the listening device and the implementation of that decision. The contention is too broadly stated. Previous dealings and contact are likely to inform an assessment as to likely topics. Moreover, any intended ‘positioning’ by the party using the listening device can come as no surprise.”

6Buss JA in his observations as to the test at [257] expressed in more detail the relevant test. In my respectful view, his Honour’s expression of the test was not inconsistent with that of McLure P. In particular his Honour said that:

“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”.

7Against that background, the father points to allegations made by the mother against him in these proceedings, prior to the making of the recordings which are now sought to be placed into evidence. In particular he refers to allegations made by the mother on 6 February 2017 in the case assessment conference where she alleged that he had suffered from severe depression for half of the relationship but refused help. More critically, she alleged that he had threatened to kill himself on several occasions and, after the parties separated, threatened to kill himself and the child saying, “if I ever get [the child] back I’ll kill him too.”

8Counsel for the father referred also to allegations made by the mother in her earlier filed documents referencing the father, on her case, losing control of his emotions, alleging that he had suffered from severe depression and alleging that he had engaged in verbal abuse.

9Counsel for the mother in response pointed out accurately that while the specific recordings now sought to be tendered into evidence were made after the allegations were made by the mother, it is common ground that the father had commenced a pattern of recording calls well before those allegations were made. Counsel pointed out also the father’s evidence that he recorded the calls because he was advised to do so and his concession that he did not record all calls.

10On those bases, I am not, on the materials before me, presently satisfied that the exception raised in s 5 (3)(d) of the Act has been made out.

11For the benefit of the parties, however, and given the reference by counsel for the mother to the possibility of the matter being dealt with elsewhere (whether in terms of the professional conduct of the solicitors involved, who I hasten to add are not the father’s present solicitors, or otherwise), I make it clear that I have reached no concluded view as to whether, with more fulsome evidence, the exception in s 5 (3)(d) might yet be made out. My lack of satisfaction that it is presently made out should not be regarded as being binding in any way on any other person or tribunal.

12The reason I make that observation, apart from the obvious, is this: even if it is established by the absence of the exception that the recordings were made illegally, that does not, of itself, render them inadmissible in the proceedings.

13The provisions of the Evidence Act1906 (WA) contain, as counsel for the mother properly conceded, no express provision making illegally obtained evidence inadmissible simply by virtue of it having been obtained illegally.

14Indeed, s 112 of the Evidence Act provides that s 109 to s 114 do not affect the power of a court in a criminal proceeding to exclude evidence that has been obtained illegally or would, if admitted, operate unfairly against the accused. Implicit in that is the proposition that the evidence is not, in those circumstances, inadmissible merely because it was illegally obtained.

15The starting point at common law is the Privy Council decision in Kuruma v R [1955] AC 197 in which Lord Goddard rejected the submission that evidence obtained illegally was, for that reason, inadmissible saying:

“The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.”

16His Lordship went on to say:

“There can be no difference in principle for this purpose between a civil and a criminal case. No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused…. If, for instance, some admission of some piece of evidence, e.g., a document, had been obtained from a defendant by a trick, no doubt the judge might properly rule it out”.

17The English cases have since moved away from the discretion referred to in the second paragraph I have just quoted in favour of admitting all relevant evidence, but in Australia the situation is slightly different. In R v Ireland (1970) 126 CLR 321, Barwick CJ said:

“Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. That is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence”.

18That statement of the law was confirmed in Bunning v Cross (1978) 141 CLR 54.

19Bunning v Cross was a criminal case but consistently with it in Miller v Miller (1978) 141 CLR 269, the High Court considered an appeal from the Full Court of the Family Court which upheld the rejection of evidence tendered of conversations between a child and his mother by means of the phone connected to the husband’s house in which the child was residing. The father on one occasion and the stepmother on another listened to the child’s conversation on an extension telephone line.

20The Listening Devices Act 1969 (NSW) in force at the time rendered inadmissible evidence gathered by use of a listening device. The High Court allowed the appeal on grounds related to the use of the extension line, as distinct from a listening device. However, not unimportantly, albeit his comments were obiter, Gibbs J, as he then was, said that:

“…If the sub-section does not render evidence of such a conversation inadmissible, the court would have a discretion to exclude it, since it was unlawfully obtained”.

21In summary, it is a matter of discretion as to whether evidence obtained illegally is to be nevertheless admitted. That involves a weighing up of the probative value of the evidence in determining the matters in issue in the proceedings against the negative aspect of the method by which it was obtained and the reluctance of the court to encourage or tacitly approve of the gathering of evidence by illegal means.

22Counsel for the father has referred also in his submissions to the fact that this is a parenting proceeding and that I must consider the best interests of the child. That is so although, of course, the ruling I am asked to make is not a parenting order per se. Accordingly, the child’s interests are not the paramount consideration. They are, nevertheless, relevant.

23Allegations have been made in the proceedings both in the materials referred to already and also the squarely put case of the mother in relation to her relationship with the father, her relationship with his family, her reasons for moving to [State A], her reasons for wanting to stay in State A and, not unimportantly, the circumstances in which she returned to Western Australia during the course of the proceedings before again leaving Western Australia with the child. On balance and notwithstanding the Court’s reluctance to be seen in any way to encourage or even tacitly approve the illegal gathering of evidence, I consider that the potential probative value of the materials in question outweighs the concerns about the manner in which they were gathered.

24The mother’s objection to the recordings being put into evidence is, therefore, dismissed.

These reasons are the reasons for decision I delivered on 26 July 2018, edited in places but only to ensure accuracy of citations and to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

LH
ASSOCIATE

13 AUGUST 2018