Multiplex's submissions
7 Counsel for Multiplex contended that the evidence which it seeks to have excluded represents a substantial part of the evidence to be relied upon by the applicant at trial.
8 Multiplex also submitted that it would be just and convenient and conducive to the orderly conduct and disposition of the proceeding if the admissibility of such a substantial and critical body of evidence were determined at the earliest opportunity. It was submitted that this approach would conform with efficient case management; see Village Building Co v Canberra International Airport [2003] FCA 1195 per Finn J at [9].
9 It was further submitted that, if the objection to the admissibility of the evidence were upheld, there would be substantial savings of time and costs as a result of the early definition of the scope of the issues legitimately raised by such of the applicant's evidence as is held to be admissible.
10 In addition, it was submitted that it would be oppressive, as well as wasteful of the time and costs, to require Multiplex to file affidavits in answer to evidence in the applicant's affidavits which would later be ruled inadmissible.
11 Counsel for Multiplex foreshadowed a submission that the evidence should be excluded pursuant to s 138(1) of the Evidence Act as it had been obtained in contravention of an Australian law and further, that the desirability of admitting the evidence is outweighed by the undesirability of admitting evidence that has been illegally or improperly obtained. In respect of the telephone conversations between Mr Baharis and Messrs Slater and Padgett, a submission was outlined that the applicant had contravened s 6 of the Surveillance Devices Act 1999 (Vic) ("the Surveillance Devices Act") by using a listening device to overhear, monitor and listen to a private conversation between the respective participants.
12 Section 6 of the Surveillance Devices Act provides:
'Regulation of installation, use and maintenance of listening devices
(1) Subject to sub-section (2), a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation.
In the case of a natural person, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both;
In the case of a body corporate, 1000 penalty units for a first offence and 2000 penalty units for a subsequent offence.
(2) Sub-section (1) does not apply to -
(a) the installation, use or maintenance of a listening device in accordance with a warrant or an emergency authorisation; or
(b) the installation, use or maintenance of a listening device in accordance with a law of the Commonwealth.'
13 "Listening device" is defined in s 3 of the Surveillance Devices Act as:
'any device capable of being used to overhear, record, monitor or listen to a private conversation or words spoken to or by any person in private conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear;'
14 Multiplex also submitted that it is clear from the affidavits filed on behalf of the applicant that, although Mr Baharis had physically used the digital recorder provided by the applicant to record the conversations, in the circumstances Mr Baharis was acting for and on behalf of the applicant in making the recording. This, it was submitted, constituted a further breach by the applicant of s 6 of the Surveillance Devices Act.
15 In addition, Multiplex submitted that the applicant's conduct had been improper or had otherwise involved an impropriety so as to warrant the exclusion of the evidence pursuant to s 138 of the Evidence Act. (See DPP v Carr [2002] NSWSC 194 per Smart AJ at 158 [27] and [34] for a discussion of the broad concepts of improper conduct and impropriety.) It was submitted that Mr Baharis had been "used as a decoy" by the applicant to conduct an interview with Mr Padgett on 28 January 2004 and that this amounted to impropriety or improper conduct on the part of the applicant. Multiplex asserted this claim to be consistent with the fact that it was the applicant who had suggested that Mr Baharis should contact Mr Padgett and the telephone conversation should be recorded. Further, it was the applicant who had provided Mr Baharis with the digital voice recorder and showed him how to use it. As well, the applicant was present throughout the telephone conversations on the morning of 28 January 2004 and during the conversations wrote notes prompting Mr Baharis to question Mr Padgett on certain issues. The applicant also arranged for the tapes to be transcribed.
16 Counsel for Multiplex submitted that the affidavits so far filed reveal that the applicant's impropriety or contravention was clearly deliberate and occurred after the applicant had consulted with colleagues. Moreover, so the submission proceeded, the applicant recognised the risk of the tape recordings of the conversations of 28 January 2004 being ruled inadmissible and for that reason advised Mr Baharis some days later to make his own notes of those conversations.
17 It was next submitted that the telephone conversations involved deception as Mr Padgett had not been told that his conversation with Mr Baharis was not private and was being recorded. Counsel for Multiplex argued that Mr Padgett ought to have been notified that a third person (the applicant) was listening in, and that the third person was an inspector for the Building Industry Taskforce (the Taskforce) and it should have been disclosed that the conversations were being recorded.
18 The submission for Multiplex continued that the applicant's impropriety included a failure to follow the Taskforce's own procedure when conducting interviews (which, it was submitted, is effectively what the conversations of 28 January 2004 were). Mr Padgett was not cautioned in either of his telephone conversations with Mr Baharis that he had the right to remain silent or that anything he said could be used subsequently in a court of law. (See R v Swaffield (1998) 192 CLR 159).
19 Multiplex submitted that, once it is established that evidence has been obtained by means which involved illegality, improper conduct or impropriety, the onus is on a party seeking to rely upon that evidence to justify the exercise of the Court's discretion to receive the evidence. (See Australian Law Reform Commission, Report 26, Vol. 1 at [964].) In the same context, it was contended that the meaning of the word "obtained" in s 138(1) of the Evidence Act should be construed broadly as it was intended to qualify evidence subsequently obtained as a consequence of improper conduct as well as evidence that was immediately obtained in consequence of that conduct. (See Australian Law Reform Commission, Report 26, Vol. 1 at [966]). On this argument, the requisite causal relationship would be satisfied by an application of a "but for" test. (See DPP v Carr [2002] NSWSC 194 per Smart AJ at [70]. See also R v Haddad & Treglia [2000] NSWCCA 351 per Spigelman CJ at [73]-[74].) It was said to be as a consequence of the improper and illegal telephone conversations on the morning of 28 January that Mr Padgett made a follow-up telephone call to Mr Baharis that afternoon. In Multiplex's submission, evidence of the conversation of the afternoon would not have been obtained but for the calls earlier that day which involved improper and illegal conduct. In those circumstances, evidence of the latter conversation should also be excluded.
20 Further, Multiplex submitted that records of interview conducted by the applicant with Mr Padgett and Mr Slater on 10 February 2004 should be excluded as the applicant did not follow the Taskforce's normal practice of contacting an employer before entering a worksite to notify it of the intention to interview employees. Although Multiplex acknowledged that the applicant had cautioned Mr Padgett that he had a right to remain silent and that anything he said might be used in evidence in a court, it was also submitted that the applicant had failed to follow the Taskforce's normal practice as he had not also cautioned Mr Slater who was junior , as an employee, to Mr Padgett.
21 In Multiplex's submission, the applicant should be precluded from taking advantage of what, it is contended, was improper and illegal conduct in obtaining the evidence constituted by the records of interview. Those records of interview and incidental discussions at the time of the interviews should, it was said, also be excluded by the Court in exercise of its discretion pursuant to s 138 of the Evidence Act.
22 On the matters required to be taken into account pursuant to s 138(3) of the Evidence Act, Multiplex contended that the probative value of the evidence is questionable, particularly in the apparent absence of evidence that either Mr Slater or Mr Padgett had authority to make statements or admissions for, or on behalf of, Multiplex. Further, it was submitted that the evidence is highly prejudicial but is not critical to establishing the applicant's claims. Although the applicant relies upon one of the conversations of the morning of 28 January 2004, there was said to be no indication in the applicant's pleading that the conversation is central to making out the alleged contravention of s 170NC of the Act.
23 Counsel for Multiplex submitted that the evidence in question is to be used to make out, not a criminal offence, but contravention of a statutory provision attracting a civil penalty and that little weight should be attributed to the importance of establishing a contravention of the Actwhen exercising the discretion to admit or exclude evidence improperly or illegally obtained. (See Klein v Bryant [1998] ACTSC 89 per Master Connolly at [57].)
24 In the context of s 138 of the Evidence Act it was said that there was no suggestion in that Act that s 138 prescribes a way of dealing with an objection that evidence has been illegally or improperly obtained which is different from the manner of ruling on objections that evidence is inadmissible under other sections of the Evidence Act. It was said that objections to admissibility are normally ruled on when the evidence is sought to be led, or where it is contained in an affidavit, at the beginning of, or before, the trial. It is by no means mandatory to defer such a ruling to the end of the trial.