YARDBOROUGH & CHESTERMAN
[2014] FCCA 446
•24 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YARDBOROUGH & CHESTERMAN | [2014] FCCA 446 |
| Catchwords: FAMILY LAW – Admission into evidence of emails on another person’s computer – whether obtained improperly or illegally or in contravention of an Australian law – whether desirability of admission outweighs undesirability. |
| Legislation: Crimes Act 1958 (Vic), s.247G Family Law Act 1975 |
| Iphostrou & Iphostrou & Ors (No.4) [2010] (unreported) FamCA 1183 |
| Applicant: | MR YARDBOROUGH |
| Respondent: | MS CHESTERMAN |
| File Number: | MLC 10176 of 2012 |
| Judgment of: | Judge F. Turner |
| Hearing date: | 13 February 2014 |
| Date of Last Submission: | 13 February 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 24 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Nikou, Senior Counsel |
| Solicitors for the Applicant: | Gpz Legal Pty |
| Counsel for the Respondent: | Mr Stoikovska |
| Solicitors for the Respondent: | Leanne Cain & Associates |
ORDERS
The wife’s objections to the admission into evidence of emails are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Yardborough & Chesterman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10176 of 2012
| MR YARDBOROUGH |
Applicant
And
| MS CHESTERMAN |
Respondent
REASONS FOR JUDGMENT
This decision concerns property law proceedings under the Family Law Act 1975. The husband challenges the wife’s credibility and seeks to tender copies of emails allegedly sent between the wife and her friend Mr J.
The Court refers to ss.55 and 56 of the Evidence Act 1995 (the “Act”) which are as follows:
55 Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not take to be irrelevant only because it relates only to:
(a)the credibility of a witness; or
(b)the admissibility of other evidence; or
(c)a failure to adduce evidence.
56 Relevant evidence to be admissible
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2)Evidence that is not relevant in the proceeding is not admissible.
A relevant fact very much in issue in this case is the wife’s contributions to the renovations of the former matrimonial home.
Ms Nikou, Senior Counsel appeared for the husband and Ms Stoikovska of Counsel appeared for the wife.
The evidence from the husband is that he copied the emails from his wife’s email accounts. He states that the wife gave him her password to access her accounts so as to assist her to respond to various documents. The husband states that he and the wife had a mutual understanding that they both had free access to each other’s computers and email accounts. He says that the wife never told him that his access was restricted in any way.
The Court finds that the husband did not access the wife’s emails illegally or improperly (post). The Court accepts the husband’s evidence:
·That the wife gave him her password;
·That it was their practice and understanding that they had full access to each other’s emails; and
·That the wife never told him that his access was restricted.
The husband seeks to tender copies of the emails to show that the wife has given untruthful evidence about them and thereby to damage her credibility.
The wife’s credibility is a major issue in the case, as a finding on it will assist the Court in determining the extent of the wife’s contribution to the former matrimonial home.
Ms Stoikovska raises a number objections to the emails being tendered.
The First Objection
The first objection is that as the Court has found that the parties separated on 1 July 2013, if the emails are evidence of an affair, it post-dates separation and is therefore not an ‘affair’. That is not the reason that tender is sought.
The Court finds that the reason for seeking to tender the emails is to attack the wife’s credibility. The question is ‘whether the emails were drawn and sent by the wife?’ or ‘whether they were altered and/or sent by someone else?’
This objection is rejected.
The Second Objection
The second objection is that the emails will not assist in determining a fact in issue.
The Court finds that the emails are likely to assist it in determining whether to accept the wife’s evidence as to her input into the cost and renovations of the former matrimonial home. That is very much a fact in issue.
This objection is rejected.
It is objected further that the material may be “unfairly prejudicial” and/or “misleading or confusing” as set out in s.135 of the Act, which is as follows:
General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a)be unfairly prejudicial to a party; or
(b)be misleading or confusing; or
(c)cause or result in undue waste of time.
For reasons that are explained (post) the Court finds that the evidence will not be unfairly prejudicial. Evidence of the content of the emails cannot be misleading or confusing. The relevant question is whether the emails were sent by the wife with the content alleged?
The Third Objection
The third objection is a repeat under s.135(a), that the emails may be ‘unfairly prejudicial’ to the wife. The Court finds that the emails will not be unfairly prejudicial to the wife. Of course, they may be prejudicial if they undermine her credibility – but that will not be ‘unfair’. Her credibility is a major issue in the proceedings. The Court cannot determine the outcome without making an assessment of the wife’s credibility. Therefore the emails will not be ‘unfairly prejudicial’ to her.
That objection is rejected.
Ms Stoikovska objects that the totality of the email chains are not sought to be put before the Court. That reason for an objection to receipt of evidence was rejected by Cronin J, in Iphostrou & Iphostrou [2010] FamCA 1183 at [10], and the evidence there was admitted despite the objection [35].
This objection is rejected.
Ms Stoikovska relies on the definition of the word ‘prejudice’ in s.135 of the Act. As set out on p.825 of Odgers Evidence in Law Tenth Edition (“Odgers”), ‘prejudice’ is defined as follows:
“There is some uncertainty over the meaning of ‘prejudice’. But, clearly, it does not mean simply damage to the accused’s case. It means damage to the accused’s case in some unacceptable way, by provoking some irrational, emotional response, or giving evidence more weight than it should have. It is proposed to retain this judicial discretion in its conventional form.”
Findings as to a party’s credibility cannot damage their case in an ‘unacceptable’ way.
This objection is rejected.
The Fourth Objection
The fourth objection is under s.135(b) that the emails may be “misleading”. The Court has rejected that contention (supra).
The Fifth Objection
This objection is made under s.135(c), being that the evidence may result in a “waste of time”. The Court finds that the evidence may assist it in resolving whether the wife has been truthful in her evidence, which will assist in deciding the proper division of the asset pool. That is not a “waste of time”.
This objection is rejected
Ms Stoikovska submits further that under s.135(c) (Refer Odgers para.1.3.14600) the admission of the evidence will require other evidence to be admitted in order to evaluate it. “In such a case a good cause for discretionary exclusion may exist”. Compare R v Esposito (1998) 105 A Crim R 27 at 71 per Adams J; R v Smith (2000) 116 A Crim R 1 at [69]-[70]; R v Taylor [2003] NSWCCA 194 at [128] per Bell J.
The Court finds that the admission of the emails into evidence will result in the calling of evidence by at least one expert. That will not be a waste of time. The issue of the wife’s credibility is critical to a proper resolution of this case.
All objections under s.135 are rejected.
The Court finds as a matter of discretion that the probative value of the evidence is not substantially outweighed by a danger as set out in s.135.
The Sixth Objection
The next objection is made pursuant to s.138 of the Act which is as follows:
Discretion to exclude improperly or illegally obtained evidence
(1)Evidence that was obtained:
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Note: The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Australian Human Rights Commission Act 1986 .
It is alleged that the emails were obtained improperly or in contravention of an Australian law. The law relied on is s.247G of the Crimes Act 1958 (Vic) which is as follows:
Unauthorised access to or modification of restricted data
(1)A person who—
(a)causes any unauthorised access to or modification of restricted data held in a computer; and
(b)knows that the access or modification is unauthorised; and
(c)intends to cause the access or modification—
is guilty of an offence and liable to level 7 imprisonment (2 years maximum).
(2)An offence against this section is a summary offence.
(3)In this section “restricted data” means data held in a computer to which access is restricted by an access control system associated with a function of the computer.
Based on the husband’s evidence, the Court finds that the husband neither knew that his access was unauthorised nor caused unauthorised access. The emails were therefore not obtained illegally nor in contravention of an Australian law [s.138(1)(a)]; or in consequence of an “impropriety” of an Australian Law. The husband believed that his wife was having an affair and sought to investigate the matter.
“Impropriety” means “improper” (Shorter Oxford Dictionary). The husband’s conduct was not ‘improper’ or a result of ‘impropriety’.
This objection is rejected.
Ms Stoikovska objects that the husband obtained a copy of the emails without the wife’s consent. The Court accepts the husband’s evidence that he was given access to the wife’s emails by her giving him her password and through a mutual understanding of free access.
This objection is rejection.
Ms Stoikovska submits that the Court should reject evidence that is obtained “improperly” [s.138(1)(a)]. Section 138(3) sets out the matters that may be taken into account under s.138(1). Taking those matters into account and particularly the difficulty of the husband in obtaining the evidence by any other means [s.138(3)(h)], the Court affirms its findings on s.138(1)(supra), that the emails were not obtained “improperly or illegally”.
This objection is rejected.
The Seventh Objection
The seventh objection is a repeat of an earlier objection under s.138 that the Court must not admit evidence obtained improperly. The Court has found that the evidence was not obtained improperly.
This objection is rejected.
The Eighth Objection
The eighth objection is made under s.138(3)(f) that the impropriety or contravention (of an Australian law) was “contrary to or inconsistent with, a right of a person recognised by the International Covenant on Civil and Political Rights”.
Para.1.3.15240 of Odgers (supra) contains the comments:
“The ALRC stated that “the trial judge should expressly consider the extent to which the individual accused’s rights has been infringed. While this factor may be seen as an aspect of the seriousness of the misconduct, it is more appropriate to deal with it separately, given the specific public interest in protecting individuals from infringement of their rights”: see ALRC 26, vole 1, para.964. As noted at the end of the provision, the International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 (CT). Rights of a person be recognised by the ICCPR are extracted in Appendix F.”
The Court has found that there was no “impropriety or contravention” (supra). Section 138(1) therefore is not applicable. Even if it is, the Court finds that the wife gave the husband access to her emails; she gave him her password; they had a mutual understanding as to free access to material. There is no evidence that the wife’s rights have been infringed. Even if they have, it is only to test if she is a truthful witness. Public interest is against denying a party the right to contest another party’s credibility.
The objections under s.138 are rejected.
The Court refers to ss.55 and 56 of the Act (supra) and finds that the evidence is relevant and admissible.
Even if evidence was obtained in breach of s.138, and it was not, the Court has a power to admit it if it finds that the desirability of admitting the evidence outweighs the undesirability: Iphostrou (supra at [35]). It is desirable that the evidence is admitted.
Given the husband’s evidence about his permission to access his wife’s material and given his belief that she was having an affair, the Court does not find that the evidence was obtained in an undesirable way.
Having considered the wife’s objections, the Court finds that it is desirable to admit the emails [s.138(1)] and that their probative value is not substantially outweighed by a danger set out in s.135 of the Act.
Having reached those conclusions it is not necessary to consider Ms Nikou’s submissions in support of admission. They were thorough and support the admission of the emails.
The wife’s objections to the admission into evidence of the emails are dismissed. The emails are admissible into evidence.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge F. Turner
Date: 24 March 2014
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