Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 98 | Case summary

Q. When the conversations were over, what happened to the tapes? A. The Royal Commission took them off me." 2 Mr Elomari is now being cross-examined. 3 The defendant has tendered a series of tapes. It is said that the tapes are tapes of the conversations. 4 The defendant has tendered a certificate under s 56(4)(c) of the Police Integrity Commission Act 1996 dated 24 February signed by his Honour Judge Urquhart Q.C., the Police Integrity Commissioner. 5 The defendant has tendered also a document described as a schedule. I take it to have been a document prepared by the Police Integrity Commission to accompany the material delivered in response to a subpoena served by the defendant. 6 As to the evidence of Mr Elomari it specifies no dates, no times, no places, no participants and, significantly, no content of any of the conversations. For what it is worth - and too strict an analysis should not be applied to it - he says he recorded the conversations and he gave the tapes to the Royal Commission. So much for Mr Elomari's evidence. 7 As to the schedule: it purports, as I understand it, to be a schedule identifying tapes by reference to matters in respect of which there is absolutely no evidence: dates, times, participants. It is the more curious a document because three portions of it are blanked out. One can only speculate as to what has been blanked out and, further, and more dangerously, as to why. 8 There has also been tendered and admitted as exhibit 53, what are described as seven warrants. They have been admitted into evidence on a limited basis, depending on proof of matters to render admissible the substantive tender, namely the tapes. 9 The warrants constituting exhibit 53 (to which the Commissioner's certificate is attached) can, in my respectful view, neither hardly or at all be described as warrants. I say that in the context that there has been no attempt to go behind the issue of the warrants (and, arguably, on the "face" of the documents there could be no basis for doing so); and that there has been no attempt to go behind the Commissioner's decision vis-a-vis the public interest under s 56(4)(c) of the Police Integrity Commission Act. 10 The content of a warrant issued under the Listening Devices Act, is as provided for by s 16. Its form is identified as that in Schedule 2 to the Act. The documents produced to this Court today, on their face, cannot be described as complying either with the form, or as indicating on their face, the content as required by s 16. The whole of page 2 of each warrant has been deleted. Significant parts of page 3 have been deleted, and portions of the first page of the documents have been deleted. 11 Insofar as the admissibility of the tapes depends upon the proof of the validity of warrants, my present view is that the documents tendered in that regard do not establish that. 12 The warrants, or so much of them as can be read, purport to authorise use by (blanked-out) a person or, on that person's behalf, a (whole page blanked-out) list of names, listening devices to be installed on Mr Elomari for a purpose, namely to be used to listen to and record private conversations of Mr Elomari, Mr Marsden and other persons associated with them "in the commission of" prescribed offences. There are four nominated prescribed offences, the relevant one apparently being "attempt to cause false testimony". The warrants, or the documents purporting to be warrants, also purport to authorise the installation of a listening device on or about the body of Mr Elomari, only "by one or more of persons named hereunder;" but the names are blanked out. 13 The fulfilment of the conditions of the warrant, in my view, has to be proved on the balance of probabilities. Although in a different context, the remarks of Sully J in Reg v Karageorge (1998) 146 FLR 100 at 103 are, in principle, of application here. Whilst discussing the operation of s 219(F) of the Customs Act 1901 (Cth) and its incorporation into the Australian Federal Police Act 1979 (Cth), his Honour said: "It seems to me that one does not get to s 219F in its incorporated form until one has first found on the probabilities that the recording in question was a lawful recording. Such a finding must depend upon proof to the required standard that the recording was made, in fact, `pursuant to' the relevant warrant. The recording has not been so made unless, in the case of a conditional warrant, such as that in the present case, the conditions have been fulfilled" (at 103). 14 His Honour goes on to say with respect to the condition with which that court was concerned: "Such a condition as condition (3) in the warrant here relevant is not shown to have been satisfied, and cannot be shown to have been satisfied, unless what was actually done is related by admissible evidence and in a logically convincing fashion, to what was actually authorised to be done. What was actually authorised to be done cannot be established in the case of such a condition as condition (3) now relevant, without some evidence in proper form to define the alleged offence which was propounded in the information on oath. That is the very foundation of and the very justification for the judicial authorising of the warrant" (ibid). 15 The tender of the tapes is the seeking to adduce evidence of the conversations presumably recorded; through what person, party or instrument however? Not Mr Elomari; on that subject he has come and gone. It seems to me at present that, at best, that the defendant Amalgamated Television Services Limited, as the tender is presently structured, is the person to whom knowledge has come of a private conversation. 16 I am not persuaded by the submissions that s 13 of the Listening Devices Act applies to a participant or a party to the conversation. There are at least two reasons for that. The participant, of course, can give direct evidence, subject to any general law or statutory exception to admissibility, as to the conversation that participant had with another person: what he said, what the other person said, of the words spoken, that evidence in no way being affected in its admissibility by reason of the fact that, at the same time, it was being recorded. Mr Elomari has given no such evidence. 17 Section 13(2) is another basis for rejecting the submission. In s 13(2)(a) it is provided that the evidence can become admissible if the principal parties to the private conversation concerned consent to the evidence being given. That is, evidence of the contents of a private conversation knowledge of which has come to a person "as a result, direct or indirect, of the use of a listening device in contravention of section 5" (s 13(1)). 18 In my view there is clearly a burden on the defendant to prove that that which it is seeking to tender, namely the tapes, were lawfully obtained. I respectfully agree with what Simpson J said in Karageorge at 123-4, that s 13 of the Listening Devices Act provides that evidence of a private conversation that has come to the knowledge of a person as a result, directly or indirectly, of the use of a listening device - and I interpose as opposed to hearing the communication otherwise than as recorded - if in contravention of s 5 is inadmissible in any proceedings, civil or criminal, and that there is no residual discretion under the Evidence Act to admit it. The exception to which her Honour refers at 125, of the overheard conversation, shortly stated, anticipated to be about drugs but in fact about a murder, is the very type of evidence that s 14 of the Listening Devices Act permits to be admitted in a criminal proceeding in relation to a charge concerned with that murder. 19 Mention was made that the tapes, whatever they are, are capable of being evidence in corroboration of the evidence given by Mr Elomari. Leaving aside the question of the capacity to corroborate, even if they were to be used for that purpose I am of the view that they would have to be proved to have been lawfully obtained. Further, there would be no discretion to admit such evidence if unlawfully obtained or, if by some quirk there was, it could with facility be excluded under s 135A or s 138(1), taking into account particularly its lack of probative value as evidence purporting to corroborate the vagaries of that to which Mr Elomari deposed. 20 This admissibility question which, as far as I am aware, has not acutely been considered hitherto in the context of a civil trial, relates to evidence said to be relevant to the particularised case of admissions by conduct. The particulars are those delivered on 22 February and handed up in court. Relevance of all the material on all the tapes cannot easily be determined at this stage. Whilst accepting the statement that this is the general area of relevance, I am not, of course, ruling that any matter otherwise established to be admissible by reason of formal matters being proved, would otherwise fulfil the requirement of relevance. 21 The tender of the tapes and the warrants is rejected. The tapes have already been marked MFI 101. The warrants, whilst presently admitted as exhibit 53, have not been shown to otherwise have any probative effect, but they will stay on the record with this ruling as a matter of convenience.

Marsden v Amalgamated Television Services Pty Limited

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