Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 465 | Case summary

1 HIS HONOUR: Yesterday I delivered a ruling in connection with what are described as the "Elomari tapes", in the context of the questions asked of the then witness, Detective French (NSWSC 451: DLJT 162). On 28 February in the context of an express tender of the tapes themselves, I held them to be inadmissible (NSWSC 98: DLJT 103). 2 This morning further submissions were advanced by Mr Stitt Q.C., as to their admissibility. 3 Earlier rulings have been concerned with the recording by listening devices of conversations pursuant to warrants issued under the Listening Devices Act, 1984. The warrant, in general terms, renders lawful the recording of a conversation, and upon its acceptance into evidence, is a step towards the proof of the recording and the admissibility of its contents. 4 The submissions made this morning were in another context. Section 5 of the Listening Devices Act 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". 5 That is the prohibition provided by the statute. Section 5(3) provides: "Subsection 5(1)(b) does not apply to the use of a listening device by a party to a private conversation if…

(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." 6 It was thus submitted that there are two mechanisms that render lawful the recording of private conversations. First pursuant to a warrant, and secondly, by reason of the operation of s 5(3)(b)(i) of the Act, outside the context of warrants. 7 Subsection 5(3)(b)(i), it was said, is a factual exception to the warrant, requiring, one, that a principal party to the conversation consent, and two, that the recording is reasonably necessary for the protection of the lawful interests of that principal party. 8 Here it was contended the factual situation is that Steven Elomari is the principal party. Another party is the plaintiff. In the context of Mr Stitt's submission, the principal party could only be Mr Elomari in terms of the notion of consent to which Mr Stitt referred. 9 Pausing there, any suggestion that considerations of privacy are accommodated by reason of the wearer of the device consenting, ignores the privacy considerations of the other parties to the conversation being recorded by the device being worn by the consenting party. I do not see the Listening Devices Act operating in a way that by reason of the privacy of the consenting party being protected by that consent, privacy considerations otherwise thereby can be ignored or are otherwise irrelevant in respect of the other parties. It is the lawful recording of conversations intrusive upon the privacy of others that founds admissibility. 10 In any event, it was further suggested that the facts are that on 11 January 1996 Mr Elomari, wore the listening device, consented to it being installed and activated. It was said that what the tape thereby recorded, presumably upon the instillation and activation of it, relates to a conversation between Mr Elomari and Mr Marsden on that date. 11 It was submitted that Mr Elomari, having consented to the listening device being used, it was reasonably necessary for the protection of his lawful interests, because in the course of his evidence in February 2000 he was, during cross-examination, accused of lying, and accused of perjury in the context of the express suggestion of a "bribe" at T4320. 12 It was further said that the conversation which the plaintiff is said to have had with Mr Elomari did not relate to the Wood Royal Commission, but rather solely to these proceedings. It relates, it was said, to an attempt, to suborn Mr Elomari in relation to these proceedings, antedating, as a matter of the calendar, any possible agreement with the defendant of the kind in fact evidenced by Exhibit 42. 13 Insofar as it was said that the conversation was limited in the way suggested, that part of Exhibit 42 which is made up of an affidavit of Mr Corry sworn on 14 February 2000, refers, in paragraph 3, to a suggestion, inter alia, concerning what Mr Elomari should do or say "if so asked by officers of the Police Royal Commission." I mention that because the material on which the submission is based includes this exhibit, and the part to which I have referred does not lend support to the proposition that the tape deals exclusively with these proceedings, and not with the Royal Commission. 14 It was further submitted that the proper construction of s 5(3)(b)(i) requires that the question of whether something was reasonably necessary is to be determined objectively. That must be so. 15 The evidence given by Mr Elomari in relation to being taped by the Royal Commission is set out in my judgment of 28 February, being quoted from T4152.16 to 32. Mr Elomari gave evidence that he went to the Royal Commission, investigators from which put a tape recorder on his body. He recorded conversations between himself and the plaintiff several times: he could not remember, but "several times". When the conversations were over, as to the tapes, "The Royal Commission took them off me". 16 The cross-examination of Mr Elomari in relation to what was put quite expressly as a "bribe", and the agreement with Channel 7, was not the subject of re-examination. Indeed, there was no re-examination of Mr Elomari. The vigorous attacks on his credit were not the subject of any attempt at clarification or restoration by means of re-examination. 17 It was submitted for the defendant that a tape was recorded as being reasonably necessary for the protection of Mr Elomari's lawful interests, by reason of the accusations, (leveled at him four years later), of perjury and giving evidence infected by a "bribe," an attack not dealt with in re-examination, but which the submission seeks to elevate to "lawful interests" in the witness, not only as at February 2000 but retrospectively to January 1996. 18 It seems to me that the proper construction of s 5(3)(b)(i) requires that at the time of the recording there exist the reasonable necessity for the protection of existing lawful interests. That construction is available from, and is in my view reinforced by, the language of subparagraph 1, which requires the recording of the conversation "is" reasonably necessary. 19 There is no evidence as to why the listening device was installed, no evidence as to what interests at the time of it being installed were advanced by Mr Elomari, the consenting party, nor indeed is there any evidence of subject matter - save for that, to which, in this context, not much weight can be attached, contained in paragraph 3 of Mr Corry's affidavit, part of Exhibit 42. 20 It was suggested in the course of submissions that it is every day practice, for example, in the Stock exchange, for conversations to be recorded. It is the every day practice of journalists, for example, to record conversations, it is said, in the event that at some future time some issue might arise in respect of which the recording of that conversation might in some way protect lawful interests of either the stockbroker or the journalist. 21 On my construction of the relevant section of the Listening Devices Act, that expectation or hope could never be realised, in the sense of rendering admissible a lawful recording, if there were no reasonable necessity for the protection of existing lawful interests at the time of the recording of the conversation. 22 It may well be that stockbrokers and journalists do record but the interests of privacy - where the stockbroker or journalist consents - of the other person cannot be ignored. It would be, in my view, with a facility offensive to considerations of privacy, should it be the case that six months, five years, twenty years down the track the person in the position of that stockbroker, or that journalist, or anyone else who habitually records conversations, can advance an argument to the effect: "At the time I want to use them (by tender as admissible lawfully obtained evidence) I have some lawful interests now to protect." 23 When one reads the opening words of s 5(b)(i) (the recording of the conversation is reasonably necessary), accepting as I do the argument that reasonable necessity is to be judged objectively, it must be judged upon bases or grounds that exist at the time of the recording, and not advanced as existing at some later time. 24 Thus the tapes, I am persuaded, are not admissible on the basis that s 5(3)(b)(i) makes them so. ***********

Marsden v Amalgamated Television Services Pty Limited

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Judgment (9 paragraphs)

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