DPP v Kamal Nakhla

Crimes (Local Courts Appeal and Review) Act 2001 LEGISLATION CITED : Listening Devices Act 1984 Suitors Fund Act 1951

R v Le (2004) 60 NSWLR 108 ; [2004] NSWCCA 82 R v Eade (2000) 118 A Crim R 449; [2000] NSWCCA 369 CASES CITED : Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 465 Amalgamated Television Services Pty Ltd v Marsden [2000] NSWCA 167 Violi v Berridale Orchards Ltd [2000] FCA 797

PARTIES : Director of Public Prosecutions - Plaintiff Kamal Nakhla - Defendant

COUNSEL : Ian Bourke - Plaintiff Clive Steirn SC / Ben Clarke - Defendant

S Kavanagh - Plaintiff SOLICITORS : P Knudsen - Hargreaves Practice - Defendant

LOWER COURT JUDICIAL OFFICER : Magistrate M Taylor

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION COMMON LAW LIST

15696/05 DIRECTOR OF PUBLIC PROSECUTIONS v KAMAL NAKHLA

JUDGMENT 1 The plaintiff, the Director of Public Prosecutions, appeals pursuant to s 56(1)(c) of the Crimes (Local Courts Appeal and Review) Act 2001 against the order of a magistrate dismissing summary proceedings relating to an alleged offence of malicious damage to property. 2 The asserted error of law arises out of the magistrate's construction of the Listening Devices Act 1984 (the LD Act). 3 The plaintiff seeks an order setting aside the magistrate's decision and an order remitting the proceedings to the Local Court to be determined according to law.

The Background to the Proceedings. 4 The charge came before the magistrate on 9 September 2005. The defendant's solicitor foreshadowed an objection to the admissibility of a video, being the foundation of the prosecution case, on the basis that the video recording was caught by the prohibition contained within the LD Act. The matter proceeded by way of the tender of a statement by Laurence Hibbert, the complainant, on the Voir Dire (Ex 1), together with an admission of fact agreed between the prosecutor and the defendant's legal representative. 5 The statement established that the defendant was the ex-husband of the complainant's wife, that the latter and the defendant had been separated since 2000 and divorced since 2004 and that the defendant had access to the child of the marriage, D, every second weekend during the school term and for part of the school holidays. The complainant was living with his wife at an address in Wahroonga with the child D and the complainant's child, T. 6 The defendant had made accusations of harassment against the complainant and had also falsely accused the complainant of sexually abusing the child D. Because of these accusations, the complainant was cautious in his dealings with the defendant and had adopted the practice of placing a video camera, either in an upstairs landing window, or down stairs, so that each of the occasions upon which the defendant came to collect the child D from the home was recorded. 7 On Saturday 2 April 2005 shortly prior to 10 a.m., the defendant arrived at the complainant's home to collect the child for the weekend. Some short time after the defendant left the premises, the complainant reviewed the videotape (as was his normal practice) and noticed an image of the defendant walking down the driveway past the complainant's car, a Ford Falcon station wagon. At the time the defendant was wearing a red T-shirt, light blue jeans and sunglasses. 8 The image on the video depicted the defendant scratching something along the entire rear passenger side of the complainant's car, using his right hand. The defendant then returned his right hand to his rear jeans pocket. The complainant checked his car for damage and saw that there were scratches on the rear near-side bumper, the rear door panel and handle, and the front near-side door. This damage was the subject of the charge laid against the defendant. 9 The agreed fact was that the video recording device had captured a conversation between the complainant's wife and the child D. Unfortunately, there was no evidence before the magistrate as to the content of that conversation, albeit the submissions proceeded on the basis that the conversation was of a routine domestic nature. Similarly, there was no evidence before the magistrate capable of establishing that the complainant's wife was aware that the video recording device was capturing her conversation with her child, although the defendant's solicitor's submissions before the magistrate suggested otherwise.

The Relevant Provisions of the Listening Devices Act 10 Section 5 of the LD Act relevantly provides that :- (1) A person shall not use, or cause to be used, a listening device - (a) to record or listen to a private conversation to which the person is not a party: or (b) to record a private conversation to which the person is a party. (2) subsection (1) does not apply to -- (a)………………………………………………………………… (b)………………………………………………………….. (c)……………………………………………………………… (d) the unintentional hearing of a private conversation by means of a listening device: (3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if: (a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or (b) a principal party to the conversation consents to the listening device being so used and:

(i) the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party, or

(ii) the recording of the conversation is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation 11 The Act (s 3) defines "party" in relation to a private conversation as a person by or to whom words are spoken in the course of the conversation or a person who, with the consent, express or implied, of any of the persons by or to whom words are spoken in the course of the conversation, records or listens to those words. 12 A "principal party" to the conversation is a person by or to whom words are spoken in the course of the conversation. A "private conversation" means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only by themselves, or by themselves and by some other person who has the consent, express or implied, of all of those persons to do so. 13 Section 13 of the LD Act relevantly provides that :- (1) Where a private conversation has come to the knowledge of the person as a result, direct or indirect, of the use of a listening device in contravention of section 5 -- (a) evidence of the conversation: and (b) evidence obtained as a direct consequence of the conversation so coming to the knowledge of that person, may not be given by that person in any civil or criminal proceedings . (2) Subsection (1) does not render any evidence inadmissible -- (a) if all of the principal parties to the private conversation concerned consent to the evidence being given: (b) if the private conversation concerned comes to the knowledge of the person called to give the evidence otherwise than in the manner referred to in that subsection, notwithstanding that the person also obtained knowledge of the conversation in such a manner.

The Submissions Before the Magistrate 14 There was no issue between the parties that the video recorder, containing a microphone, was a "listening device" for the purposes of the Act : R v Le (2004) 60 NSWLR 108 ; [2004] NSWCCA 82. 15 The submissions advanced below on the defendant's behalf asserted that the video recording device was intended to capture any conversations occurring during the defendant's visit to the home and that the complainant's wife was aware that her conversation with her child was being recorded (T/S of 9/9/05 at p 4). I have already noted that there was no evidence before the magistrate to the latter effect, although the prosecutor took no exception to the submission. Strictly speaking, there was no evidence before the magistrate establishing the former proposition. However, the complainant's statement referred to placing the video camera in order to "gather evidence". I do not regard it as unreasonable to infer that such evidence might include words spoken by the defendant, the complainant, the complainant's wife and her child.

16 The defendant submitted below that the prosecution could not in effect sever the visual images from the audio content of the recording device, so as to rely only upon the former and avoid the consequences of s 13(1). Reliance was placed upon this Court's decision in R v Eade (2000) 118 A Crim R 449; [2000] NSWCCA 369, in so far as Kirby J referred to the Second Reading speech of the Attorney General when introducing the Act. It was said that the visual images constituted evidence which was obtained as a direct consequence of the unlawful use of a listening device, thereby rendering the video tape entirely inadmissible. 17 The prosecution sought to distinguish Eade on the basis that it dealt with the inadmissibility of recorded conversations arising out of the use of an invalid warrant under the Act. The decision says nothing about the admissibility of images. The prosecution only sought to rely upon the visual images. It did not propose to rely upon any of the recorded conversations, which were in any event irrelevant to the proceedings brought against the defendant. The prosecution submitted that s 13 of the Act was irrelevant to the issue of the admissibility of the visual images captured by the recording device. The Magistrate's Decision 18 The magistrate referred extensively to the provisions set out above. In particular, the magistrate addressed the definitions of "party" and "private conversation" and went on to find that the conversation between the complainant's wife and child was "not intended for wider circulation". The magistrate did not consider whether the complainant had the implied consent of his wife to listen to or record her conversation with her child, despite the defendant's representative's submission in that regard. The magistrate expressly found that s 5(1)(b) was inapplicable and that s 5(3) was therefore of no assistance. 19 Accordingly, the magistrate found that the complainant had contravened s 5 and that s 13 of the Act was applicable. The magistrate determined that "evidence obtained as a direct consequence of the conversation" coming to the knowledge of the complainant by the unlawful use of the listening device (s 13(1)(b)) included the visual images recorded by the device and that there were no exceptions within s 13 that applied in the circumstances of this case. Somewhat curiously, the magistrate had regard to s 13(2)(a) and determined that the consent of the principal parties to a private conversation of which that subsection speaks is a reference to consent obtained at some time prior to the giving of the evidence. 20 Following the magistrate's exclusion of the videotape, the prosecution conceded that it could offer no evidence and the charge against the defendant was dismissed. Errors in the Magistrate's Construction of the Listening Devices Act 21 In my view, the plaintiff's submissions in this Court have been made good. It seems to me inescapable that if one accepts that the complainant set up the video camera to "gather evidence" in the sense contended for by the defendant, and that the complainant's wife was aware of that general purpose, then her conversations with her child were recorded by the complainant with her implied consent. The complainant thus becomes a party to that conversation within the meaning of s 3 of the Act. Therefore, the complainant's use of the listening device was prima facie unlawful under s 5(1)(b). However, if the criteria under s 5(3) are met, the use of the listening device is lawful (that is, not in contravention of s 5) and issues concerning the admissibility of the product of the listening device under s 13 do not arise. 22 The magistrate erred in failing to have proper regard to the definition of "party" in the circumstances of this matter. No issue was taken with the proposition advanced by the defendant that the listening device was used for the purpose of recording conversations during his visits to the home and that the complainant's wife consented to this course of action. 23 A finding that the conversation between mother and child was "not intended for wider circulation" does not come to grips with the notion that a "private conversation" may nonetheless remain so for the purposes of the Act where the principal parties agree to another person hearing it. The definition of "private conversation" invites attention to the circumstances surrounding the conversation itself and whether those circumstances may reasonably be taken to indicate that any of the principal parties to the conversation accede to the conversation being heard by some other person, who has the express or implied consent of the principal parties. There was sufficient evidence before the magistrate to establish that the acrimony between the complainant and the defendant, and formerly between the complainant's wife and the defendant, was a product of the breakdown of the marriage between the latter two persons and the formation of a relationship between the complainant and the defendant's former wife. False allegations had been made by the defendant against the complainant relating to the defendant's child, so that the defendant's visits to the complainant's home in order to exercise his access rights were attended by a heightened sense of vigilance on the part of the complainant and his wife. In my view, these circumstances, together with the normal domestic relationship of husband and wife, may reasonably be taken to indicate that the complainant's wife consented to any conversation she had with her child on such occasions being heard by the complainant. Similarly, those same circumstances allow for the child's consent to be implied.

24 A recitation of the relevant parts of s 3, without more, does not satisfy the requirement to give reasons for such a finding, even accepting the burdens of a busy Local Court. Some exposure of the reasoning process such as might allow an appellate court to divine the path by which the finding was made is one measure of the adequacy of the judicial method. I cannot discern a rational basis for the magistrate's finding in this respect. 25 That error gave rise to the failure to properly consider s 5(3). The extent of the magistrate's analysis of subsection 3 included a finding that "there could be no suggestion under (3) … that there was consent at the time because what I'm told happens is it's visually and orally recorded other people at the change-over, the defendant, [the complainant's wife] and the son." With respect to the learned magistrate, this aspect of his Honour's reasons makes no sense in the light of the common ground underlying the submissions, namely that the complainant's wife expressly or impliedly consented to the use of the listening device. 26 It is arguable that s 5(3)(a) could not be satisfied without the consent of the child as a principal party to the conversation, although I query whether the consent of a minor is always required independently of the consent of that child's parent. Consent in these circumstances must be informed consent and the younger the child, the less likely that informed consent is capable of being given for the purposes of this provision. There is no evidence of the age of the child in the instant matter, other than that he is of school age. It may have been possible to resolve this issue had the circumstances been more fully explored before the magistrate. 27 A consideration of s 5(3)(b) provides an alternative basis upon which the use of the listening device may be rendered lawful. The complainant's wife's consent to the use of the listening device not having been disputed, it became necessary to determine whether the recording of the conversation was reasonably necessary for the protection of her lawful interests. The test is an objective one and requires evidence of a lawful interest existing at the time of the recording ; Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 465 ; Violi v Berridale Orchards Ltd [2000] FCA 797. Once again, no enquiry along these lines was pursued and the absence of relevant evidence from the complainant's wife does not allow such a determination to be made now. Nonetheless, the error lies in the failure by the magistrate to turn his mind to subsection 3. 28 I note in passing that the magistrate referred at length to s 7 of the Act, immediately after rejecting the application of s 5(1)(b) and (3) to the circumstances of the case before him. Section 7 only applies to a person who has been a party to a private conversation. Any reference to s 7 was entirely otiose once the magistrate had found that the complainant did not fall within the extended definition of "party".

29 Assuming for present purposes that the use of the listening device was in contravention of s 5, further errors in the construction of s 13 are apparent from the magistrate's reasons. The magistrate appears to have accepted that evidence of the conversation was not sought to be given and that the only relevant basis for excluding the video-tape images lay in characterising those images as evidence obtained within the meaning of s 13(1)(b). Ultimately, his Honour held that the video images was evidence obtained as a consequence of the use of the listening device :- Mr H set up his video camera and filmed audio and visual, the changeover and it involved conversations. That was the intention because of his concerns about himself and I have no criticism about that. But at the end of the day what came out of it subsequently, according to Mr H's observations of it, which is made clear in 6, 7 and 8, is that he noticed that his car has been scratched. ……. It seems to me that subsection b of s 13(1) which simply starts with evidence obtained, cannot mean more or less than what it says and what actually happened here, what was being filmed visually and orally was the changeover, what happened was evidence was obtained as a consequence. 30 However, s 13(1)(b) is directed to evidence obtained as a direct consequence of the conversation coming to the knowledge of the complainant, not as a direct consequence of the use of the listening device. The distinction may appear subtle but it is a meaningful one. Section 13(1) is intended to capture (a) evidence of the words spoken in the course of the conversation, that is, the content of the conversation itself, and (b) any evidence derived or gleaned from the content of the conversation. Had the complainant's wife said to her son "You must tell me if your father leaves you alone in the house, like he did last time", evidence of that conversation and evidence that the defendant had left his son alone in the house is prima facie inadmissible under s 13(1). 31 If the magistrate's approach to s 13(1) were correct, (b) has very little work to do. Evidence obtained as a direct consequence of the use of the listening device includes evidence of the conversation, thereby rendering s 13(1)(b) redundant. The video images were not a consequence of the conversation coming to the knowledge of the complainant ; they were captured simultaneously with the recording of the conversation by the same device. 32 I am not aware of any authority, binding on this Court or otherwise, which has applied s 13 of the Act to visual images independently of evidence of, or arising directly from, conversations. The whole Act is directed to the protection of the privacy of the individual's oral communications with others. Eade is of no assistance to the defendant, in fact, it is against him. Kirby J' set out this portion of the Second Reading speech Clause 13 will render evidence inadmissible in civil or criminal proceedings if it was obtained by the unlawful use of a listening device, whether directly or indirectly. The clause, however, will enable any such evidence to be admissible if, among other things, the parties consent or, in the case of certain serious offences, the court in special circumstances so determines. 33 Kirby J's reference to the Second Reading speech was followed by this qualification:

However, the extrinsic material and the heading are useful only where there is ambiguity. Here, on the Crown's submission, there is none.

His Honour went on to reject the application of s13(1) to participants in a conversation, following Amalgamated Television Services Pty Ltd v Marsden [2000] NSWCA 167. Plainly enough, the clear words of the provision must be construed according to the purposes and objects of the Act. 34 One only has to contemplate the potential consequences of the magistrate's approach to reject the above construction out of hand. The legislature could never have intended to potentially exclude a video of a sexual assault (of which there are many carrying a penalty of less than 20 years imprisonment) just because the recording device captured a private conversation occurring at the same time. Provided reliance is placed solely on the images and the conversations are otherwise irrelevant, the Act appears to me to play no part in questions of admissibility. Of course, there may be other bases for excluding such a film, but that is beyond the scope of this appeal. 35 I have already noted the magistrate's gloss on s 13(2)(a). I can see no basis for construing this subsection in a manner that would confine the consent of the parties to the conversation to a time before the question of the giving of the evidence arises. In any event, there was no evidence capable of raising that issue. 36 Accordingly, I grant the relief sought in the Summons. I make the following orders and declaration :-

1. The order made at Hornsby Local Court on 9 September 2005 dismissing a charge of Maliciously Destroy or Damage Property against the defendant is set aside.

2. The magistrate erred in law as to the proper construction and application of the Listening Devices Act 1984 .

3. The proceedings are remitted to Hornsby Local Court to be heard and determined according to law. 4. That the defendant pay the plaintiff's costs in these proceedings. The costs are to be paid to the Registrar of the Downing Centre Local Court within two months of the receipt by the defendant of the bill of costs by the Director of Public Prosecutions. I grant to the defendant a certificate under s 6 of the Suitors Fund Act 1951 . **********

09/08/2006 - Amnded date of Judgment to 4 August 2006 - Paragraph(s) 0 17/01/2007 - Network error occurred in Paragraph 16 (words omitted). The following paragraph numbers had to be changed - Paragraph(s) Paragraph numbers 17-36 had to be changed, ie paragraph numbers only (not content).

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