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JUDGMENT

1. HIS HONOUR: In the trial of Mr Conrad Lardner for the murder of Mr David Vale, the Crown tendered a “clandestine recording” made by Ms Lesley Christine Davis (Ms LC Davis), which contains representations by Ms Sandy Davis about what she saw and heard of the fatal altercation between Mr Lardner and Mr David Vale. The clandestine recording was Exhibit 10 on the voir dire. On 17 July I ruled the recording was admissible. It was marked Exhibit 32 (an edited transcript was marked Exhibit 31) and I reserved my reasons. These are them.

2. Mr Stewart, counsel representing the Accused, objected to the admission of the recording into evidence. He submitted that the recording was made illegally in contravention of s 7 of the Surveillance Devices Act 2007 (NSW) (“the SD Act”) and should be excluded on the basis of s 138 of the Evidence Act 1995 (NSW) (“the Evidence Act”). The Crown, in reply, submits that Ms LC Davis, in recording the interaction, was acting in a manner reasonably necessary to protect her lawful interests pursuant to s 7(3)(b)(i) of the SD Act, and therefore no issue of illegality arises. I record here that by dint of s 3(2)(a) of the SD Act, despite the other provisions of that Act, the Court’s discretion to admit or exclude this evidence including under s 138 of the Evidence Act is preserved.

Factual Background to the Recording

3. It is necessary to set out briefly the factual background to the making of the clandestine recording and its relevance to these proceedings.

4. The central issue in the trial is whether the Crown will be able to negative beyond reasonable doubt that the Accused acted in self-defence. Aside from CCTV footage from a neighbour’s property (Exhibit 10), which provides a grainy, incomplete and indistinct record of the few moments before the infliction of a fatal stab wound on Mr Vale, there is a paucity of direct or testimonial evidence voluntarily given from the witness box about what happened.

5. Of the two stab wounds inflicted on Mr Vale suffered only one caused his death. Neither is depicted on Exhibit 10 as Mr Lardner and Mr Vale moved behind a car parked in a driveway which obstructed the CCTV camera’s line of vision.

6. Ms Sandy Davis (Ms S Davis) gave evidence on the seventh day of the trial. She resided at number 76, the property neighbouring that where the altercation began. Her evidence was that she did not see the altercation between the Accused and the Deceased. Ms Davis said, “I don’t know nothing, I never seen nothing.”: 326.8-10T. Ms Sandy Davis denied: seeing any fight between the Accused and the Deceased on the driveway next door to her house; seeing the Accused pick up a knife from the ground; or stabbing Mr Vale: 366.14-25T.

7. Ms LC Davis is the mother of Mr Lesley Dean Davis (Mr LD Davis), who was also called as a witness. In the period following the death of Mr Vale, evidently rumours had circulated through the local community, including on social media, about the fatal incident. One such rumour was that Mr LD Davis was a suspect, and investigating police intended to charge him with the murder of Mr Vale. There is no evidence before me that Mr LD Davis was ever actually a police suspect, but I accept from the evidence before me that this rumour was in circulation among some in the local community. Indeed, I accept the evidence of Ms LC Davis that she became concerned because of the rumour that her son may be (wrongly) charged.

8. Apparently acting on her concern and believing Ms S Davis may know the truth, Ms LC Davis went to the home of Ms S Davis planning to record a conversation with her that she hoped would exonerate her son. The audio-visual recording on the phone of Ms LC Davis shows Ms S Davis, with her partner, Mr “Akin” Dunn, having a conversation with Ms LC Davis and her partner Mr Sampson. During the conversation, Ms S Davis makes representations which, simply put, would tend to indicate she has a greater direct knowledge of the matter than she told police in her signed statement or this Court in her evidence-in-chief.

9. In the clandestine audio-visual recording, Ms S Davis made clear that the Accused, and not Mr LD Davis, stabbed the Deceased. That account also made clear that Mr LD Davis was not then present. Ms S Davis said more than once, “Conrad done it”, in reference to the Accused. She also claimed to have been the last person to speak with the Deceased before he went next door to number 74 to speak to the Accused which seems to have initiated the fatal altercation. She said that the Accused and the Deceased “had a fight that day”. She said: “David saw Conrad … then he went back and was like ‘that was shit, I want my money back’. They had a fight. Conrad gave him, like - gave him a cap. He went, had it, come back a couple of hours later but come here first … and then … he went next door.” She was present when the witness Ms Leearna Davis “run screaming … saying … ‘he just stabbed him. Conrad just stabbed Dave’”. I infer a “cap” is drug jargon for a capsule of a prohibited substance.

10. From the compilation of CCTV footage (Exhibit 10), and other evidence, it is clear that Ms S Davis was out the front of her home at number 76 when the stabbing took place and would have been in a position to witness it. It is certainly open to the tribunal of fact to draw that conclusion.

11. In cross-examination by leave under s 38 of the Evidence Act, Ms S Davis maintained, “I didn’t see no fight” (371.19T). Despite being confronted with the contents of Exhibit 31, Ms S Davis steadfastly maintained she only said the things attributable to her from the recording “because [Ms LC Davis] told me what to say” (371.48T); and “I was repeating what she told me to say” (372.4T). She steadfastly denied that she knew anything from what she saw, heard or otherwise perceived with her own senses (372.39T; 374.8-9T). For the purpose of admissibility, it is unnecessary for me to rule on the reliability of this part of Ms S Davis’s evidence.

12. When called to give evidence (initially on the voir dire, which later stood as evidence in the trial), Ms LC Davis said that she believed that the police were trying to blame her son for the Deceased’s murder. He had told her, “They’re trying to frame me” (539.31-35T). She decided to speak to Ms S Davis because she lived next door “to the house that that … happened at” (539.38T). When asked why she did not go to the police (539.40T) she replied:

“What for? What for, why should I go to the police when they’re accusing my son? So I took into my own hands to go and do my own investigation to find out what happened. So I went and got my own phone and videoed Sandy [and her partner] in their house.”

13. In the course of deciding whether a certificate under s 128 of the Evidence Act should be given to Ms LC Davis (it was), I explained that recording a private conversation without the permission of everyone involved “is actually a serious criminal offence”. Ms LC Davis volunteered, “I know” (540.31T). I cautioned her to say nothing and explained that an offence contrary to s 7(1) of the SD Act carries a maximum penalty of 5 years’ imprisonment. She volunteered “I did not know that” (540.31T).

Surveillance Devices Act

14. Under s 7(1) of the SD Act, a person must not knowingly install, use or cause to be used or maintain a listening device, inter alia, to record a private conversation to which the person is a party. Contravention of the provision carries a maximum penalty of 5 years’ imprisonment, as I have recorded. There are exceptions. So far as is relevant to the present case, s 7(3)(b) provides as follows:

(3) Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if--

(a) …

(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation--

(i) is reasonably necessary for the protection of the lawful interests of that principal party, or

(ii) ….

15. Sepulveda v R (2006) 167 A Crim R 108; [2006] NSWCCA 379 (“Sepulveda v R”) concerned s 5 of the Listening Devices Act 1984 (NSW) (now repealed). Section 5(3) of that provision is in identical terms to s 7(3) of the SD Act. The repealed legislation obviously has the same legislative purpose as the SD Act. Justice Johnson gave the leading judgment (McClellan CJ at CL and Hislop J agreeing). It is necessary to set out a lengthy quote from his Honour’s judgment to garner a proper sense of the appropriate construction of the provision which inures for the purpose of s 7 of the SD Act: see DW v R (2014) 239 A Crim R 192; [2014] NSWCCA 28 (“DW v R”) (Ward JA, Harrison and R A Hulme JJ agreeing). Justice Johnson said:

“[111] The construction of s.5(3)(b)(i) LD Act should be considered in the statutory context whereby application may be made to a Judge of the Court by (usually) a representative of the NSW Police for a warrant under s.16 of the Act after notice has been given to the Attorney General and where, if a warrant issues, a report must be provided under s.19 LD Act to the issuing Judge and to the Attorney General with specified information concerning the use which was made of a listening device under the warrant. These statutory steps emphasise the manner to which the LD Act provides an integrated scheme for controlling infringements of privacy: R v Haddad and Treglia (2000) 116 A Crim R 312 at 327 [75].

[112] From time to time, warrants are sought and issued under the LD Act to permit the recording of a conversation between the alleged victim and alleged offender with respect to sexual assault offences which are said to have been committed years before the proposed recording, the scenario which arises in the present appeal.

The Breadth of s.5(3)(b)(i) LD Act

[113] In choosing the terms included in s.5(3)(b)(i) LD Act, the legislature has not been prescriptive in confining the statutory exemption to specified classes. The words used in the subsection are capable of being applied to a range of situations with differing outcomes. In Violi, Branson J observed at 521 [14] that ‘the intended ambit of the conduct intended to be excluded by section 5(3)(b)(i) from the operation of section 5(3)(b) is not readily identified’. In Scanruby Pty Ltd v Caltex Petroleum Pty Ltd [2000] NSWIRComm 89, Peterson J referred to a number of the authorities and noted, at [40], that ‘those observations illustrate the potential breadth of the phrase “lawful interests” in the exclusion from the prohibition on relevant use of a listening device’. In R v Le, Giles JA at 118 [47] observed that ‘different minds could give different answers in the application of reasonable necessity’.

[114] However, it is necessary to view the broad words in s.5(3)(b)(i) LD Act, against the background of the statute generally. The LD Act commences with a prohibition upon the use of a listening device to record or listen to a private conversation, whether by a party to that conversation or otherwise: s.5(1). The primary exception to this statutory prohibition involves the use of a listening device pursuant to a warrant under Part 4 of the LD Act, or pursuant to an authority under a law of the Commonwealth or another circumstance specified in s.5(2) of the Act.

[115] A further layer of statutory exceptions are to be found in s.5(3), with this class applicable only where a principal party to the conversation consents to the recording. It is necessary to bear in mind that s.5(3)(b)(i) constitutes an exception to the general statutory prohibition on use of a listening device, where the primary exception permits recording of conversations under warrant. There is a strong argument that the words of s.5(3)(b)(i) ought be closely confined to avoid undermining the primary purpose of the LD Act. An undue willingness to include a multitude of differing circumstances within this statutory exception may serve to encourage persons to make a covert recording of a conversation rather than (in the present context), comply with the primary object of the Act by bringing the matter to the attention of relevant law enforcement authorities so that application may be made for a warrant to lawfully record a conversation.

‘Reasonably Necessary’

[116] The term ‘reasonably necessary’ appears in s.5(3)(b)(i) LD Act. The word ‘necessary’ is capable of a wide range of meanings. Dictionaries indicate that such meanings include ‘indispensable’, ‘requisite’, ‘needed’, ‘convenient’, ‘appropriate’ and ‘essential’. The term ‘essential’ is the strongest or the highest meaning to be attributed to ‘necessary’: Elcham v Commissioner of Police [2001] NSWSC 614 at paragraph 48.

[117] In this Court, Mr Molomby SC accepted (T7.36, 18 May 2006) as the proper construction of this term that ‘necessary’ in s.5(3)(b)(i) means appropriate, but not essential: State Drug Crime Commission v Chapman (1988) 12 NSWLR 447 at 452; Pelechowski v Registrar of Court of Appeal (NSW) (1999) 198 CLR 435 at 452. On this basis, it is sufficient that the recording of a conversation is reasonably appropriate (rather than essential) for the protection of the lawful interests of the principal party.

[118] The presence of the word ‘reasonably’ qualifying the word ‘necessary’ imports an objective test. Reasonable necessity is to be judged objectively upon bases or grounds that exist at the time of the recording: Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 465 at [17]-[18], [23]; Amalgamated Television Services Pty Limited v Marsden at [20]-[22]; Violi at 586 [23].

‘Protection’

[119] I have referred earlier to the Appellant’s submissions concerning the significance of the word ‘protection’ in s.5(3)(b)(i) LD Act.

[120] According to the Macquarie Dictionary, the meaning of the noun ‘protection’ includes ‘preservation from injury or harm’. The Oxford English Dictionary definition includes ‘shelter, defence, or preservation from harm, danger, or evil’. In Udino v Aldo (1998) 16 NSWCCR 418, her Honour Judge Truss accepted this meaning of the word ‘protection’ in the section in concluding (at [19]) that ‘the applicant’s lawful interests were in need of “defence from harm, danger and evil” at the time when the recording was made and that the use of the device was reasonably necessary for the protection of his lawful interests’. This meaning seems apt given the statutory context in which the word appears.

‘Lawful Interests’ of that Principal Party

[121] The word ‘lawful’ can mean, simply, permitted, that is something which can be done without an infraction of the law (for example, a lawful trade), or it may mean something which is supported by the law (for example, lawful authority) or it may connote the quality of being legally enforceable (for example, a lawful demand which can be enforced by action): Taikato v The Queen (1996) 186 CLR 454 at 488.

…

[124] In Violi, at 586 [28], Branson J said:

‘Unassisted by authority, it seems to me that “lawful interests” are to be distinguished from “legal interests”**. I do not consider that section 5(3)(b)(i) called for a legal interest in the sense of a legal right, title, duty or liability*. Rather I consider that* “lawful interests” within the meaning of the paragraph are interests which are not unlawful*. The expressions* “legitimate interests” or “interests conforming to law”**, in my view, convey similar meanings to the intended meaning of “lawful interests” in the paragraph.’

[125] A perusal of the cases reveals that, in some cases, a finding has been made that a recording is reasonably necessary for the protection of the lawful interests of the relevant party and, in other cases, a finding to the contrary has been made. As might be expected, the finding depends upon the circumstances of a particular case: Miller v TCN Channel 9 at 104-105; T v Medical Board of South Australia (1992) 58 SASR 382 at 399; R v Smith and Turner (1994) 63 SASR 123 at 128; Public Trustee v Alvaro (Supreme Court of South Australia, Legoe J, 19 July 1995, unreported, BC9502314 at pages 26-29); Udino v Aldo at [16]-[19]; Marsden v Amalgamated Television Services Pty Limited at [18]-[23]; Violi at 524-525 [32]-[33]; Scanruby at [40]-[48]; Amalgamated Television Services Pty Limited v Marsden at [19]-[23]; See v Hardman [2002] NSWSC 234 at [15]-[19].

[126] Mr Molomby SC relied upon Violi in his submissions (see paragraph 86 above) and did not contend that Branson J’s construction of the term ‘lawful interests’ was wrong. It was his submission that the interests of JD identified by the trial Judge in this case were not capable of constituting ‘lawful interests’ for the purpose of s.5(3)(b)(i) LD Act. Given the statutory context in which the term appears in the subsection, as an exception to the prohibition on recording in s.5(1), it may be that Branson J’s construction of the term is too wide. Given the limited submissions made for the purpose of this appeal, however, it is neither appropriate nor necessary to express a concluded view on this issue.” (My emphasis underlined.)

16. In DW v R, Ward JA, as the President then was, reviewed a number of authorities where the expression “lawful interest” was considered without necessarily seeking to resolve the question left open by Johnson J in Sepulveda v R (at [126]). Among the authorities referred to by her Honour was Thomas v Nash (2010) 107 SASR 309; [2010] SASC 153, where Doyle CJ, dealing with analogous legislation, expressed the view that a desire to maintain a reliable record of a conversation was insufficient but “where the conversation related to a serious crime or an allegation of a serious crime, or to resisting such an allegation, the court was more likely to find that the recording of a conversation relating to the crime could be made in the protection of the person’s ‘lawful interests’” (DW v R at [33]).

Section 138 of the Evidence Act

17. If I form the view that Ms LC Davis’s clandestine recording was obtained in contravention of s 7(1) of the SD Act it is necessary to consider whether it should be excluded under s 138(1) of the Evidence Act which provides as follows:

138 Exclusion of improperly or illegally obtained evidence

(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.

18. Mr Stewart’s objection is founded on the submission that Ms LC Davis, made the clandestine recording contrary to s 7(1) of the SD Act, engaging the condition enlivening the consideration of the exclusionary provision in s 138 of the Evidence Act. The Crown’s submission is that Ms LC Davis’s conduct was reasonably necessary to protect her lawful interests and therefore was covered by the defence available under s 7(3)(b)(i) of the SD Act. Consequently, s 138 of the Evidence Act does not arise here at all. The contents of the clandestine recording are a prior inconsistent statement by Ms S Davis, relevant and admissible under s 45 of the Evidence Act. Once admitted the recorded statements are evidence of their truth: Evidence Act s 60(1).

Was the making of the recording unlawful?

19. I remind myself that in considering the question of any contravention of s 7 of the SD Act, I am not making any finding related to any criminal liability of Ms LC Davis for such an offence, and the applicable standard of proof is the balance of probabilities bearing in mind the gravity of the matter: Evidence Act s 142. I confirm that during her evidence I caused a certificate to be issued to Ms LC Davis under s 128 of the Evidence Act.

20. There was no dispute between the parties that, absent the availability of the statutory defence, the elements of an offence under s 7(1) of the SD Act would be made out. I accept this proposition as reasonably self-evident. The first relevant question for determination by me is the availability of the lawful interest defence.

21. The Crown’s first submission on this matter is that Ms LC Davis was “harbouring” Mr LD Davis who had left the Kempsey area on 2 March 2023 and was residing with her in Newcastle. She was therefore exposed to potential liability as an accessory after the fact to murder if Mr LD Davis was a suspect, arrested, charged and convicted. Further or alternatively, she had a lawful interest in the exoneration of her son.

22. There is no evidence whatsoever that Mr LD Davis was actually a police suspect (let alone, as the Crown submitted “accused”). The only such evidence are rumours of doubtful origin that apparently travelled through the community. I do not accept that one can arrogate to oneself a lawful interest solely by subjective belief. The lawful interest must actually exist, otherwise, the exception would swamp the rule established by s 7(1) SD Act. The expression “reasonably necessary” imputes an objective standard.

23. Moreover, Ms LC Davis did not believe at any stage that her son was actually guilty of murder. To the contrary she believed him to be innocent. She was not protecting her own interest. She was, if anything protecting his.

24. I do not accept that Ms LC Davis had a “lawful interest” within the meaning of s 7(3) of the SD Act in the exoneration of her son which is the Crown’s second submission. The natural, strong desire of a mother to protect her offspring is simply not the protection of her lawful interest. That same desire (as indeed it did here) may militate in favour of taking extra-legal steps to further a child’s interest.

25. Putting that aside, the making of a clandestine recording cannot be said to have been reasonably necessary, understanding “necessary” as meaning “appropriate”. Mr LD Davis had an alibi. When the stabbing occurred at was at a nearby relative’s home in the company of Lucas Dumas and the relative. There were two witnesses who could vouch for him. He was depicted arriving at the scene on the CCTV compilation after the fatal incident and just after the fatally wounded deceased and the accused had separately quit the scene. There was simply no prospect of Mr LD Davis ever being seriously suspected by police of being responsible for the death of David Vale. There was certainly no evidence to charge him with murder. The clandestine video recording did nothing to change that reality. Rather, as she said, Ms LC Davis decided to take the matter into her own hands and conduct her own investigation to find out what happened which she knew was contrary to law even if she was unaware of the potential consequences. Conducting a private investigation into the occurrence of a most serious crime is not a reasonably appropriate response in the circumstances of the case for the protection of any lawful interest Ms LC Davis may have had arising out of the putative homicide of the deceased.

26. On the balance of probabilities, I consider that the clandestine recording was obtained in contravention of s 7(1) of the SD Act and the s 7(3) defence is not established. Consequently, s 138 of the Evidence Act is engaged.

Where is the balance of desirability?

27. The test under s 138(1) provides that evidence “is not to 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.” For this purpose, regard must be had to the provisions of s 138(3) of the Evidence Act as follows:

(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.

28. The question of probative value and importance for the purpose of (a) and (b) must be determined at the point of tender rather than with the benefit of hindsight at the close of the Crown case. While the account recorded in Exhibit 32 is not necessarily explicit, I am satisfied for present purposes that in context Ms S Davis was probably providing an eyewitness account. She also provided a direct account probably based upon her interaction with the Deceased, admittedly before the commencement of his altercation with the Accused, which establishes the context for the altercation by way of the Deceased harbouring a grievance about the quality of drugs supplied to him by the Accused. The evidence is capable of supporting other evidence led to a similar effect and of demonstrating that the grievance animated the Deceased’s thinking right up until the time of his confrontation with the Accused. The Accused has now given evidence and admitted stabbing the Deceased. At the time that Exhibit 32 was tendered (at least notionally, having regard to the terms of the agreed facts in Exhibit 14) obviously that was unknown. Ms S Davis’s evidence therefore is a potential eyewitness account to the actual stabbing of the Deceased by the Accused.

29. Clearly the crime of murder is one of the most serious offences known to criminal law, suggesting that the Court should lean somewhat in favour of the admission of an apparently reliable eyewitness account. Concerning (d) and (e), the contravention of the SD Act perpetrated by Ms LC Davis was certainly deliberate and planned. However, the contravention was not perpetrated by law enforcement agencies or the prosecuting authority but by a private individual who had a misguided conviction that the conduct was necessary to protect her son, who in fact was not under active police suspicion and had the benefit of a strong alibi. Nonetheless, that the contravening conduct was that of a misguided private citizen and not a government authority reduces the gravity of the contravention. Section 3(1)(f) does not arise in the circumstances of the case.

30. So far as (g) and (h) are concerned, it does seem unlikely that any police action will be taken in regard to Ms LC Davis’s contravention of the law. This may be a factor favouring exclusion and if Ms LC Davis approached police in the first place it may well have been that with her cooperation police would have obtained a warrant under the SD Act for Ms LC Davis to be fitted with a listening device for the purpose of speaking with Ms S Davis. Given that other eyewitnesses had more or less closed ranks and resisted requests from police to provide a full account, a warrant in all probability would have been issued by the Supreme Court. Given the apparent resistance of other eyewitnesses to provide a full and frank account of what occurred, the significance of the evidence in the prosecution case persuades me that, on balance, the desirability of admitting the evidence outweighed the undesirability of admitting evidence that had been obtained contrary to law.

31. For these reasons, I admitted the evidence of Ms LC Davis originally given on the voir dire and evidence of the recording and the transcript of it.

Addendum

These reasons were written prior to the delivery of the judgment of the High Court in Potter (A Pseudonym) v The King [2026] HCA 25, which concerned the application of the cognate provision of s 7 of the SD Act of South Australia. Counsel have not had the benefit of addressing me on its effect. However, their Honours proceeded on the basis that the cases to which I have referred above were correctly decided. Consequently, those circumstances, combined with the fact that I have already ruled on the admissibility of the clandestine recording, made it unnecessary for me to invite further submissions on this point.

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