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Catchwords: CRIMINAL LAW – APPEAL – Appeal from ACT Supreme Court – primary judge dismissed an appeal from convictions imposed in the ACT Magistrates Court – offences of common assault and contravening a family violence order – whether primary judge erred in finding no error by the magistrate in admitting an audio recording made by the complainant – whether primary judge erred in finding there was sufficient evidence to convict – no errors established EVIDENCE – APPEAL – whether further evidence should be admitted on appeal from a single judge hearing an appeal from the Magistrates Court – evidence was available or could reasonably have been obtained at time of trial – further evidence not admitted

Legislation Cited: Crimes Act 1900 (ACT), s 26 Evidence Act 2011 (ACT), s 138 Family Law Act 1975 (Cth), ss 10B, 10C, 10E Family Violence Act 2016 (ACT), s 43(2) Listening Devices Act 1992 (ACT), ss 4, 5, 9, 10 Supreme Court Act 1933 (ACT), s 37N(3)

Cases Cited: CDJ v VAJ [1998] HCA 67; 197 CLR 172 Dong v Song [2018] ACTSC 82; 331 FLR 326 Jovanovic v The Queen [2015] ACTCA 29 NS v Hotchkis [2019] ACTSC 309; 14 ACTLR 251 R v Birks (1990) 19 NSWLR 677

Parties: NS (Appellant) Chris Hotchkis (Respondent)

Representation: Counsel Self-represented (Appellant) A Williamson (Respondent)

Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 55 of 2019

Decision under appeal: Court/Tribunal: Supreme Court of the ACT Before: Burns J Date of Decision: 8 November 2019 Case Title: NS v Hotchkis Citation: [2019] ACTSC 309

THE COURT:

Introduction

1. On 10 October 2018 the appellant, NS, was convicted and sentenced by the Magistrates Court for the offences of:

(a) assaulting the complainant on 31 January 2018 (Crimes Act 1900 (ACT), s 26); and

(b) contravening a family violence order on the same day (Family Violence Act 2016 (ACT), s 43(2)).

2. The assault arose from the appellant kicking the complainant’s leg during an argument about a dog. At that time the appellant and the complainant were married and living together. The complainant had obtained a family violence order against the appellant and the breach of the Family Violence Act arose from him engaging in offensive or harassing behaviour towards the complainant or by harassing, threatening or intimidating her.

3. The appellant appealed to the Supreme Court from his conviction but not from the sentence imposed. The grounds of appeal were that the magistrate erred in admitting an audio recording made by the complainant pursuant to s 5(2)(d)-(e) of the Listening Devices Act 1992 (ACT) (LDA) and that the convictions were unreasonable and could not be supported by the evidence.

4. A judge of the Court (the primary judge) dismissed the appeal: NS v Hotchkis [2019] ACTSC 309; 14 ACTLR 251.

5. By notice of appeal filed 6 December 2019 the appellant has appealed against the order made by the primary judge on 8 November 2019. While the appellant was represented before the magistrate and the primary judge, he was unrepresented in his proceedings in the Court of Appeal. The grounds of appeal are as follows:

I believe crucial evidence was not put before the Court and it is in the interest of Justice that this be remedied. I believe that things have been said that are simply not true, that have been used by the Court in consideration of my finding of Guilt, and my sentence. I believe things have not been said that have greatly disadvantaged myself, and have not been considered by the Court in my finding of guilt or the sentence imposed. I believe there was an error of law in allowing a secretly recorded, private conversation to be used in evidence, when the recording is one of many made to wield Power and Control within the relationship, thus constituting Domestic Violence. I believe when all evidence is considered, it will be recognised that there is significant and substantial reasonable doubt in this matter.

6. The relief sought is that the conviction be quashed or that a retrial be granted.

7. As is not uncommon with self-represented appellants, the appellant did not fully appreciate that his appeal was from the decision of the primary judge rather than being from the magistrate and hence he was required to demonstrate some error in the decision of the primary judge. Further, he did not fully appreciate the limitations upon the admission of further evidence on an appeal such as this.

Further evidence

8. The appellant sought to have admitted on the appeal further evidence intended to cast doubt upon the credibility of the complainant and to support his own credibility. That evidence fell into a number of categories:

(a) An affidavit affirmed by the appellant on 17 December 2020 addressing a variety of matters arising during the turbulent relationship between the appellant and the complainant, designed to demonstrate that the complainant’s evidence was unreliable.

(b) A flash drive containing audio and video recordings of an incident which occurred on 17 March 2016.

(c) Documents produced by the Australian Federal Police (AFP) in response to a subpoena. The subpoena was for records relating to complaints about the complainant or the appellant from November 2016 until 14 February 2018. It was said that this evidence would provide further evidence that the appellant did not concoct his defence on the night of his arrest and that, contrary to the complainant’s sworn evidence, previous police attendance at his residence was due to his dog’s “extremely aggressive nature”, rather than conduct on his part. The records included AFP documents recording interactions with the appellant, the complainant or their dogs on 10 October 2016, 4 and 7 November 2016, 7 and 27 January 2017, 14 November 2017 and 31 January 2018.

(d) Documents that would be produced upon compliance with a subpoena by Relationships Australia. The appellant said that these documents would show that he did not concoct his defence on the night of his arrest because it would disclose that he had earlier claimed to have been a victim himself of domestic violence.

9. In effect, the appellant sought to rely on the material to rerun his case before this Court.

10. Section 37N(3) of the Supreme Court Act 1933 (ACT) permits the Court of Appeal to receive further evidence on an appeal. So far as the statute is concerned, the discretionary power to receive further evidence is not expressly constrained. However, ordinarily further evidence will not be admitted on an appeal if it was available and could reasonably have been obtained at the time of the hearing: Jovanovic v The Queen [2015] ACTCA 29 at [22]; CDJ v VAJ [1998] HCA 67; 197 CLR 172 at [55]. Different considerations arise when it is alleged that there has been some irregularity in the proceedings. However, no irregularity in the proceedings was alleged in the present case.

11. The refusal to admit further evidence on appeal that was reasonably available at the time of the trial is not an invariable rule. That is because the wide discretion conferred on the Court by the statute is designed to accommodate the wide variety of circumstances in which an application to lead further evidence may be made. However, underlying the reluctance to admit further evidence that was available or might reasonably have been obtained at the time of trial is the fact that it is at the trial where the parties have a fair opportunity to put their case and respond to the case against them. Appeals are more limited creatures and the proper administration of justice generally requires that evidence be led at the trial, not after the trial when the matter is the subject of an appeal.

12. In this case, all of the material now sought to be admitted was material which was available or might reasonably have been obtained prior to the hearing in the Magistrates Court. At the hearing of the appeal the appellant said that the various categories of evidence on which he now seeks to rely involved matters of which he was aware at the time of trial and had raised with his lawyers but ultimately accepted their advice to run the trial without reliance upon that evidence. A forensic decision was made not to rely on this material in his trial. A party is ordinarily bound by the conduct of their lawyer at trial: see for example R v Birks (1990) 19 NSWLR 677 at 683.

13. Further, if there was some proper basis upon which it could have been admitted, notwithstanding its non-admission at the proceedings before the magistrate, then an application could have been made to adduce that evidence in the appeal before the primary judge. No such application was made. Again, the appellant was represented in those proceedings.

14. In those circumstances, it would not be appropriate to admit the evidence on this appeal and the Court refused to admit the material identified at paragraph [8](a)-(c) above.

15. The material sought to be obtained from Relationships Australia fell into a different category because that material had not yet been produced. The information contained in the material sought to be obtained was information known to the appellant at the time of the trial. In those circumstances, having regard to the nature of the material sought to be obtained from Relationships Australia and the description of the reason for which it was sought to be produced, the Court would not have admitted it on this appeal. Given that it was possible to say that the evidence would not be admitted and because, in the context of an appeal, that could have been the only forensic purpose of requiring production of the documents on subpoena, the Court set aside the subpoena. It is likely also that the admission of any evidence contained within material produced by Relationships Australia would have been prohibited by s 10E of the Family Law Act 1975 (Cth). Had it been necessary to determine the issue then evidence would have been necessary to decide whether what was engaged in was “family counselling” within the meaning of s 10B of the Family Law Act and was conducted by a “family counsellor” within the meaning of s 10C of the Family Law Act. However, given that the Court concluded that the evidence, even if produced, would not be admitted as further evidence on the appeal it is not necessary to determine the s 10E issue.

16. Following the refusal by the Court to admit the further evidence and the setting aside of the subpoena, it became apparent that the submissions that the appellant wished to make were dependent upon the admission of further evidence. While the appeal was not abandoned, the appellant made no additional submissions in elaboration of his written submissions or in support of his grounds of appeal.

Scope of appeal without further evidence

17. In the absence of further evidence, the grounds of appeal set out above must be taken to involve a challenge to the conclusions reached by the primary judge on the two grounds of appeal that were before him, namely:

(a) the learned magistrate erred in ruling that the audio recording made by the complainant was admissible pursuant to s 5(2)(d)-(e) of the LDA; and

(b) the convictions are unreasonable and cannot be supported having regard to the evidence.

Admission of recording

18. The recording was an audio recording made by the complainant on her mobile phone of the incident giving rise to the charges. It was admitted into evidence by the magistrate.

19. In relation to the admission of the recording, the written submissions of the appellant did not put any argument in support of the proposition that the primary judge erred in his interpretation of the LDA.

20. Section 4 of the LDA prohibits the use of a listening device with the intention of listening to or recording a private conversation to which a person is not a party or recording a private conversation to which the person is a party. There are exemptions to the general prohibition set out, including that in s 4(3)(b)(i):

[A] principal party to the conversation consents to the listening device being so used, and … the recording of the conversation is considered by that principal party, on reasonable grounds, to be necessary for the protection of that principal party’s lawful interests.

21. Section 5 of the Act contains a prohibition on divulging or communicating a record of a conversation that the person knows was made directly or indirectly using a listening device. Once again, there are exceptions set out in the section which include where the “communication or publication” (s 5(2)):

… (d) is considered by the party making it, on reasonable grounds, to be necessary for the protection of that party’s lawful interests; or (e) is made to a person who is believed by the party on reasonable grounds to have such an interest in the conversation as to make the communication or publication reasonable in the circumstances; …

22. Evidence of private conversations obtained directly or indirectly as a result of the use of the listening device is dealt with in s 10. That section does not prohibit evidence of a private conversation obtained as a direct or indirect result of the use of a listening device where it is relied upon by a person who made the recording in order to protect the person’s lawful interests under s 4(3)(b)(i).

23. The primary judge first concluded that what was recorded was a “conversation” for the purposes of the LDA. The recording was of an argument between the appellant and the complainant about a dog, in the course of which the appellant had threatened to assault the complainant. As no party at any stage had contended that what occurred was not a conversation, his Honour proceeded on the basis that it was. There is no contention on the appeal that doing so was incorrect.

24. His Honour also concluded that the evidence did not permit a challenge to the conclusion that the conversation was a private conversation for the purposes of the LDA.

25. He considered that the mobile phone was clearly a device capable of being used to record a private conversation and hence was a listening device for the purposes of the LDA. His Honour was plainly correct.

26. His Honour then went on to consider the real issue in contest, namely whether or not the exception in s 4(3)(b)(i) was established. That is, whether the complainant consented to the use of the device and the recording was considered by the complainant on reasonable grounds to be necessary for the protection of her lawful interests.

27. His Honour adopted the explanation of the applicable principles set out in Dong v Song [2018] ACTSC 82; 331 FLR 326 at [24]-[43]. That analysis had not been challenged by the parties before the primary judge. An examination of the transcript of the proceedings before the magistrate led the primary judge to conclude that the magistrate had determined that the exception in s 4(3)(b)(i) was made out, although the magistrate did not, in terms, identify the relevant lawful interest of the complainant.

28. His Honour said (at [21]):

In my opinion, the Magistrate was correct to determine that the exception in s 4(3)(b)(i) was made out. The complainant feared that she may be seriously injured or even killed by the appellant. The complainant was not challenged in cross-examination about that evidence. The complainant feared that she may not be able to say what had happened to her, if her fears were realised. She feared that she may not be able to give evidence contradicting, for example, any claim that injury occasioned to her was occasioned in circumstances where the appellant was not criminally liable. The complainant gave evidence, of necessity brief, that she had been abused by the appellant frequently, and had been injured by him in the past. In my opinion, the complainant had reasonable grounds for her fears, and as such there were reasonable grounds for her to consider that it was necessary to make the recording for the protection of her lawful interests.

29. The primary judge then concluded that the exception in s 5(2)(d) would also apply because he was satisfied that the complainant had established that her actions fell within that exception.

30. His Honour then said that even if there was a contravention of s 4 of the LDA, that fact by itself would not make the recording inadmissible having regard to the operation of s 10 of the LDA and s 138 of the Evidence Act 2011 (ACT).

31. He first considered the operation of s 10 of the Act. When read in conjunction with s 9 of the Act, s 10 prevents the giving of evidence about a private conversation or the production of a record of the conversation in civil or criminal proceedings unless certain exemptions apply. One of those exemptions is that the person who has knowledge of the private conversation or has come to have knowledge of the private conversation “also obtains knowledge of the conversation or report in circumstances other than those referred to in that subsection”: s 10(2)(e). His Honour concluded that given that the complainant had heard the conversation herself because she was present at the time it occurred, she had obtained knowledge of the conversation other than through use of the listening device and she was permitted to give evidence of the private conversation. His Honour also concluded that s 10(1) would not prevent the informant from giving evidence of the conversation because the informant “would undoubtedly have been told of the conversation by the complainant”. For those reasons, his Honour concluded that even if the use of the listening device was proscribed by s 4, the recording was not rendered inadmissible by s 10.

32. Finally, his Honour went on to consider the application of s 138 of the Evidence Act. As pointed out above this was on the basis that, contrary to his conclusion, s 4 of the LDA had been contravened. His Honour considered each of the relevant matters in s 138. He also considered the possibility that the recording of the conversation may have involved an impropriety in the sense that it breached the appellant’s right to privacy. His Honour did not accept that suggestion saying: “A criminal has no right to keep their offending private, or to claim that the gathering of evidence of their crime is a breach of their privacy.” His Honour concluded that even if the conversation had been obtained in contravention of the LDA, the proper exercise of discretion found in s 138 of the Evidence Act would have resulted in its admission into evidence.

33. The submissions of the appellant do not demonstrate any error on the primary judge’s part in reaching his conclusion that neither s 4 nor s 5 were breached because the complainant believed, on reasonable grounds, that the recording was necessary for the protection of her lawful interests. Further, the submissions of the appellant did not demonstrate any error in the conclusion that there was no prohibition in s 10 upon the admission of evidence of the conversation. As a consequence, no question of the application of s 138 of the Evidence Act arose.

Unreasonable convictions

34. In relation to the second ground of appeal, his Honour reviewed the evidence given by the complainant in her evidence-in-chief interview, cross-examination of the complainant by counsel for the appellant, a recording of the 000 call made to police and the evidence given before the magistrate by the appellant. He then set out some of the findings of fact and the reasons given by the magistrate. The primary judge referred to the written submissions of the appellant that, apart from the evidence in the recording, it was a “word on word” case in relation to which the magistrate should have had a reasonable doubt. He also recorded the appellant’s submissions that, in the context in which the argument occurred, the statements made by the appellant were not such as to breach the family violence order. His Honour’s conclusion was as follows:

35. I have no hesitation in agreeing with the Magistrate that the evidence established a breach of the family violence order. Having listening to the recording on numerous occasions, I am satisfied that his conduct was, and was intended to be, harassing and intimidating. I agree with the Magistrate that he was yelling at [the complainant], and that his tone was aggressive. His suggestion that he was talking to the dog is improbable, but in any event I am satisfied that his conduct was really directed towards [the complainant], and intimidating her. 41. In finding the appellant guilty of assault, the Magistrate was entitled to take into account the clear aggression demonstrated by the appellant at the time that [the complainant] says she was kicked. She was also entitled to find that the appellant had threatened to “snot” [the complainant], and that this was a threat to hit her. The Magistrate was also entitled to find that the accused had kicked the rubbish bin just before he kicked the complainant, although his intention may have been to scare the dog. These were all circumstances supportive of the evidence of [the complainant]. Finally, the Magistrate had the benefit of seeing and hearing [the complainant] cross-examined and the appellant giving his evidence. Her finding that [the complainant] was a credible witness, and the appellant was not, should not lightly be interfered with. I am satisfied that there was ample evidence upon which the Magistrate was entitled to convict the appellant.

36. The submissions made by the appellant provide no basis upon which it could be concluded that his Honour erred in reaching the conclusion that he did.

Order

36. The order of the Court is:

37. The appeal is dismissed.

I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Mossop and Justice Abraham.

Associate:

Date: 2 June 2021