Mulhearn v Merit Homes Pty Ltd

Legislative considerations

1. Section 138 of the Evidence Act 1995 provides for the admissibility of improperly or illegally obtained evidence as : (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 Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.
2. The Surveillance Devices Act 2007 (NSW) and the Workplace Surveillance Act 2005 (NSW) are the relevant legislative provisions together with the common law for the purpose of s138 of the Evidence Act
3. Surveillance Devices Act section 8 provides that: (1) A person must not knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves: (a) entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle, or (b) interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object. Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case). (2) Subsection (1) does not apply to the following: (a) the installation, use or maintenance of an optical surveillance device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation, (b) the installation, use or maintenance of an optical surveillance device in accordance with a law of the Commonwealth, (c) the use of an optical surveillance device and any enhancement equipment in relation to the device solely for the purpose of the location and retrieval of the device or equipment, (d) the installation, use or maintenance of an optical surveillance device by a law enforcement officer in the execution of a search warrant or crime scene warrant (including the use of an optical surveillance device to record any activity in connection with the execution of the warrant), Note. See also section 255 of the Children and Young Persons (Care and Protection) Act 1998. (e) the use of an optical surveillance device, being a device integrated into a Taser issued to a member of the NSW Police Force, to record the operation of the Taser and the circumstances surrounding its operation, (f) the use, in accordance with section 50A, of body-worn video by a police officer. (3) In this section: crime scene warrant has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002. search warrant means a search warrant issued under: (a) any of the following provisions of the Law Enforcement (Powers and Responsibilities) Act 2002: (i) Division 2 (Police powers relating to warrants) of Part 5, (ii) Part 6 (Search, entry and seizure powers relating to domestic violence offences), (iii) Division 1 (Drug premises) of Part 11, or (b) section 40 of the Independent Commission Against Corruption Act 1988, or (c) section 17 of the Crime Commission Act 2012, or (d) Division 2 or 3 of Part 4 of the Criminal Assets Recovery Act 1990, (e) section 45 of the Police Integrity Commission Act 1996.
4. Section 11 of the Workplace Surveillance Act 2005 provides: Camera surveillance of an employee must not be carried out unless: (a) cameras used for the surveillance (or camera casings or other equipment that would generally indicate the presence of a camera) are clearly visible in the place where the surveillance is taking place, and (b) signs notifying people that they may be under surveillance in that place are clearly visible at each entrance to that place.
5. Section 5 defines the meaning of "at work" (1) For the purposes of this Act, an employee is at work for an employer when the employee is: (a) at a workplace of the employer (or a related corporation of the employer) whether or not the employee is actually performing work at the time, or (b) at any other place while performing work for the employer (or a related corporation of the employer). (2) An employee who is a bailee of a public vehicle or a carrier under Chapter 6 of the Industrial Relations Act 1996 is considered to be performing work for the employer while engaged under the contract of bailment or carriage concerned.
6. Section 38 of the Civil and Administrative Tribunal Act 2013 provides for the procedure of the Tribunal generally as: (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2): (a) the Tribunal must observe the rules of evidence in: (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. Note. Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege. (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal: (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
7. The Tribunal is not bound by the rules of evidence and may inform itself in any manner or on any matter that it thinks fit subject to the rules of natural justice.
8. Although not bound by the rules of evidence, the Tribunal considers those rules as guidance in ensuring that rules of natural justice and that procedural fairness is applied in consideration of the admissibility of evidence.
9. Section 138 of the Evidence Act applies in both civil and criminal proceedings; Klein v Bryant [1998] ACTSC 89 (illegally obtained video recording excluded), Bedford v Bedford (unreported, NSWSC, Windeyer J, 20 October 1998 (evidence obtained improperly by a solicitor excluded).
10. Stephen Odgers Uniform Evidence Law Lawbook Co. 2010 at [1.3.14880] states: 'Where evidence has been obtained unlawfully or improperly, this provision [section 138] requires the court to engage in a balancing exercise, balancing or weighing those considerations supporting exclusion of the evidence against those supporting its admission in the particular circumstances of the case; R v Keough [2003] NSWCCA 385. This balancing exercise constitutes the "discretionary" aspect of the provision; see Em v The Queen (2007) 232 CLR 67; 81 ALJR 1896; [2007] HCA 46, Gummow and Hayne JJ at [95], see also Fleming v The Queen [2009] NSWCCA 233 at [22]'
11. The discretionary approach to dealing with illegally and improperly obtained evidence had been developed by the High Court before the provisions of section 138 were enacted.
12. In Bunning v Cross (1978) 141 CLR 54, the High Court indicated that, under the common law, a court must weigh competing requirements of public policy: "the desirable goal of bringing to conviction a wrongdoer" on the one hand and, on the other, the avoidance of "undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law" (at 74 per Stephen and Aickin JJ). It has been held that, subject to considerations of onus of proof, the assessment of the competing public interests under section 138 is relevantly similar to the exercise at common law: R v Coombe (unreported, NSW CCA, Hunt CJ at CL, Smart, McInerney JJ, 24 April 1997.
13. In Employment Advocate v Williamson (2001) 111FCR 20; 185 ALR 590: 50AILR 4-498; [2001] FCA 1164 at [78] Branson J observed: [T]he balancing exercise which subs 138(1) requires the court to undertake involves the court in an exercise of judgement (ie the reaching of a conclusion based on the application of very general standards such that different minds might reasonably reach different conclusions on the same material) rather than in an exercise of simply identifying the preferable of two or more options.

Contravention of an Australian Law

1. The term "in contravention of an Australian Law" Section 138(1) means a law of the Commonwealth, a State or a Territory (Cl 9 of Pt 2 of the Dictionary to the Evidence Act). That is, in the current proceedings a contravention of the Surveillance Devices Act or the Workplace Surveillance Act or any other legislative provision concerning the evidence improperly or illegally obtained.
2. The applicants admit that they caused the surveillance device attached to the adjoining building to take images of the building site. On the face of that admission it is their submission that they did so with permission of the adjoining land owner. As such, they have not contravened section 8 of the Surveillance Device Act.
3. Similarly there appears to be no contravention of section 11 of the Workplace Surveillance Act. The applicants are not the employers of the respondent and its workers and sub-contractors. The surveillance device was not located on the building site. The device was attached to the adjoining building. The Tribunal does not find that there has been a breach of the Workplace Surveillance Act
4. Included in the documents filed by the applicants with the application is copy of a "preliminary" building contract between the applicants and the respondents dated 26 April 2013. The contract price is shown as $901,858.00. It is signed by both the applicants and the respondent. The contract is in the form of HIA NSW Residential Building Contract for New Dwellings, version "Revised March 2012". Clause 11.1 provides that the applicants give the respondent exclusive possession of the building site to carry out the building works. Clause 11.3 provides that the applicants must not hinder the respondent's access or possession of the site or the progress of the building works. The applicants must also not make inquiry of, issue direction to or give instructions to the respondent's workers or subcontractors. Additionally the applicants may only access the site at reasonable times and after giving reasonable prior notice and then only for inspecting the progress of the building works.
5. By the building contract the applicants gave possession and control of the site to the respondents.
6. The Tribunal makes no finding that the evidence obtained by the applicants using the surveillance device was prohibited under the contract.

Improperly obtained evidence

1. The term "improper" is not defined in the Evidence Act. In Parker v Comptroller-General of Customs (2009) 83 ALJR 494; HCA 7, French CJ noted at [28] that the meaning of "improper" in the Oxford English Dictionary includes "not in accordance with the truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong." The use of the word "improperly" should not be narrowly construed; Director of Public Prosecutions v Carr 2002 127 A Crim R 151; [2002] NSWSC 194 at [34].
2. The elements of what must be taken into account by a court in applying the discretion are set out in section 138(3). Importantly, section 138(3)(a) charges a court to consider the probative value of the evidence. That is, the extent to which the evidence could rationally affect the assessment of the probability of the existence of the fact in issue. The fact that the applicants seek to support with the time lapse photographs includes the extent, if any, that concrete was vibrated as it was poured into retaining walls. There is in the balancing exercise of the evidence benefit to the Tribunal in allowing the admission of the evidence in informing itself.
3. Notwithstanding the assertion by the respondent that the evidence was improperly obtained, the Tribunal is satisfied that the probative benefit of the admission of the evidence outweighs exclusion of the evidence.
4. The Tribunal allows the tender of the relevant photographs and video images obtained from the time lapse surveillance camera located on the land adjoining the site of the building works. P Boyce Senior Member Civil and Administrative Tribunal of NSW 19 November 2015

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 January 2016