239 ALR 204
Higgins v R [2007] NSWCCA 56
R v Bandulla [2001] VSCA 202
WK v R [2011] VSCA 345
Source
Original judgment source is linked above.
Catchwords
232 CLR 67239 ALR 204
Higgins v R [2007] NSWCCA 56
R v Bandulla [2001] VSCA 202
WK v R [2011] VSCA 345
Judgment (2 paragraphs)
[1]
JUDGMENT
Despite two weeks of pre-trial rulings regarding objections to various aspects of evidence in the trial of Helen Rosamond, and despite being included in the Crown Case Statement, no objection was taken to the admissibility of a recorded conversation with the accused until the Crown had opened the trial to the jury.
Notwithstanding the belated raising of a challenge, full argument was heard in relation to it. Given the jury having been empanelled and in waiting, after some time considering the matter I indicated that the evidence would be admitted and that I would deliver my reasons later in the course of the trial.
These are my reasons for admitting the evidence.
On 6 December 2017, approximately six letters were received by officers of the National Australia Bank in Melbourne and Sydney. Those letters contained allegations which, in summary, asserted that a third-party contractor to the bank, namely the accused Helen Rosamond and her company Human Group Pty Ltd, had been making cash payments to a National Australia Bank employee named "Rose", and that a boat and a bank cheque in the amount of $1.5 million had also been given to that employee.
The whistle-blower group within the NAB and the bank's investigator in Melbourne, Mr Michael Griffiths, readily ascertained that the "Rose" referred to in the correspondence was Rosemary Rogers who was the Chief of Staff to the CEO of the bank.
Further preliminary investigation revealed that a bank account maintained by Rosemary Rogers and her husband had recently received a deposit of $1.5 million which in turn was traced to Helen Rosamond.
On 7 December 2017, Mr Griffiths interviewed Rosemary Rogers. The circumstances of what was prima facie a serious breach of the bank's Code of Conduct for its own employees required Mr Griffiths to follow the bank's internal protocols in such circumstances. These included the provision of a notice to Ms Rogers outlining her rights and, in the circumstances, giving her what amounted to a criminal caution as well as advising her that the interview, should she proceed with it, was to be recorded. It also required her to be given notice of her entitlement to have somebody accompany her during the interview.
Rosemary Rogers, in the course of the subsequent interview provided, in broad terms an exculpatory account of her dealings with Helen Rosamond.
Very shortly after the completion of that interview contact was made by the investigator Mr Griffiths and the Executive General Manager, Lynda Dean, with Helen Rosamond via an internet conferencing application, namely Webex. Mr Griffiths gave evidence, which I accept, that at the time of the interview with Helen Rosamond he was involved in a fact-finding exercise following the allegations received in the whistle-blower correspondence and following the explanations provided by Rosemary Rogers. At that time, he was aware that $1.5 million had been received into the Rosemary Rogers account and the explanation provided by both Rogers and Rosamond that it was a personal temporary loan which was repayable as soon as the Rogers' sold their existing home, if true, did not disclose or imply any criminal conduct.
Whilst clearly it had the potential appearance of a conflict of interest, particularly so far as the NAB employee was concerned, there was no reason to suspect, at that time, that it involved any criminal conduct by Helen Rosamond.
Similarly, the introduction by Helen Rosamond of Rosemary Rogers to a boat broker with respect to the acquisition of a boat by Mr and Mrs Rogers did not, at that time, carry any obvious implication of criminal conduct.
The third general allegation, namely making cash payments direct to the NAB employee was viewed at the time by Mr Griffiths as highly improbable. There is no reason to doubt his explanation and assessment at that time.
In all of these circumstances he did not see any necessity to administer a criminal caution to Helen Rosamond.
There was, in the circumstances, nothing improper in his failure to do so. The challenge brought by Dr Hughes, counsel for Ms Rosamond to the admissibility of the conversation based upon a failure to administer a caution is, to the extent that it relies upon that failure, rejected: see Higgins v R [2007] NSWCCA 56 at [37].
The conversation and discussion which took place was, however, recorded by Mr Griffiths. He did not tell Helen Rosamond that it was being recorded.
The first submission made on behalf of the accused is that the provisions of the NSW Surveillance Devices Act 2007 had application. If that Act had relevant application, s 7 prohibits the recording of a private conversation unless all of the principal parties to the conversation consent to its recording.
However, I am of the firm opinion that the use of a recording device in a room in Melbourne to record a conversation which is being heard in Melbourne, even though the speaker was physically located in NSW, means that the device is being used in Victoria. The conversation was recorded in Victoria by the use of a listening device in that State. Accordingly, the provisions of the Surveillance Devices Act 1999 (Vic) constitute the appropriate legislative provisions which govern the legality or otherwise of the recording.
Section 6 of the Victorian Act, as at 7 December 2017 was as follows:
"(1) Subject to subsection (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." (emphasis added)
In WK v R [2011] VSCA 345; 33 VR 516, Maxwell P held that a complainant who operated a recording device provided to her by a police officer for that purpose was the person who "uses" the listening device. The President also referred to R v Bandulla [2001] VSCA 202 which dealt with the equivalent prohibition in s 4(1)(a) of the Listening Devices Act 1969 (Vic) which was the predecessor in Victoria of the Surveillance Devices Act 1999. In that earlier determination, the Victorian Court of Appeal, dealing with circumstances where police arranged for a woman to record conversations with an accused drug supplier, disposed of the claimed contravention of the Listening Devices Act in a single sentence, holding that s 4(1)(a) "was inapplicable, since the conversations were recorded by [C] who was a party to them."
I am respectfully of the same view. There was, accordingly, no illegality in recording the conversation, nor was it in my view improper. The first ground of challenge to the admissibility of the recorded conversation relying on the provisions of s 138 of the Evidence Act 1995 is accordingly rejected.
The next submission suggestive of impropriety by the NAB investigator was the fact that the recording was provided by him to NSW Police in February 2018.
That communication or publication of the alleged private conversation took place at Parramatta in NSW. Consideration of whether that communication or publication constituted improper or illegal conduct first requires consideration of what, if any, legislative provisions applied.
On behalf of Ms Rosamond her counsel, Dr Hughes, having initially submitted that the making of the recording in Melbourne was, because of the speech emanating from NSW and being communicated to Victoria via electronic means, subject to the provisions of the NSW Surveillance Devices Act 2007, subsequently submitted that the handing over of the recording in NSW should be governed by the Victorian legislation, if that were the Act that actually applied to the making of the recording itself.
I cannot agree. For precisely the same reasoning as my determination that the Victorian legislation applied to the making of the recording in Victoria, I am of the view that the Victorian Act does not have extra-territorial effect and that the publication occurring in NSW would not be governed by that legislation.
If I am wrong in that conclusion and the Victorian legislation does apply in these circumstances, the prohibition in that Act against communication or publishing does not apply to a communication or publication that is no more than is reasonably necessary either in the public interest or alternatively for the protection of the lawful interest of the person making it (s 11(2)(b) Surveillance Devices Act 1999 (Vic)). Public interest in the prosecution of serious criminal conduct would fall within this exception. So too does the protection of the lawful interests of the NAB whose agent (Mr Griffiths) was the physical communicator or publisher.
If, however, the NSW legislation applies, I am of the view that the restriction on communication and publication contained in s 11 of the NSW legislation has no application. The prohibition in s 11(1) of the NSW legislation relates to publishing or communicating a record of a private conversation "that has come to the person's knowledge as a direct or indirect result of the use of a listening device." I am of the view that that section does not prohibit publishing or communicating of a private conversation by a party to the conversation whose knowledge of the conversation has not come about as a result of the use of the listening device but rather, as a result of their participation in the conversation itself.
Dr Hughes, on behalf of Ms Rosamond, conceded the inapplicability of s 11 of the NSW Act. He was right to do so.
I am ultimately of the view that there was no impropriety or illegality in the provision of the recorded conversation to NSW Police in all of the circumstances.
The next ground of challenge sought the exclusion of the recorded conversation with the accused pursuant to the discretion in s 90 of the Evidence Act 1995. The onus of establishing unfairness under s 90 lies on an accused (see Em v The Queen [2007] HCA 46; 232 CLR 67; 239 ALR 204 at [63]).
In the present matter, the accused was aware that the bank's investigator had already interviewed Rosemary Rogers. She exercised a free choice to provide an explanation for what the bank had discovered, specifically the advance of $1.5 million into an account of Mr and Mrs Rogers. She sought to advance an innocent explanation for that transfer and volunteered to provide further information and assistance to the investigation at the conclusion of the interview.
In Higgins v R [2007] NSWCCA 56, the Court of Criminal Appeal dealt with an appeal against conviction which was based in part on the alleged wrongful admission into evidence of an interview between Higgins and Commonwealth Bank investigators.
Hoeben J, with whom Sully and Bell JJ agreed rejected the proposition that the trial judge should have not allowed the admission of the bank interview on the basis that the caution given to the appellant was not only inadequate, but was positively misleading. It was submitted that through the misleading caution, the appellant had been led to believe that the interview could only be used for the purposes of the bank and not for any other purpose.
The trial judge had found that the caution was not misleading and found as a fact that the appellant had not been misled. The Court of Criminal Appeal was of the view that those findings of fact were a barrier to the submission succeeding. However, the Court added that even if the appellant had been misled by the caution, this factor would be relevant to the exercise of discretion under s 90 but was not determinative of it. The fundamental question was whether it would be unfair to use the evidence at trial. Hoeben J concluded at [37]:
"Even if no caution had been administered, I can see no reason why the evidence of the bank interview could not have been led. It would have been admissible in the same way as an unguarded incriminating statement to a relative or a friend would have been."
With unfeigned respect, I agree with those observations.
In the present matter, the relevance and probative value of what was said by Ms Rosamond in the interview lies not in it being any direct admission of guilt. Rather, the Crown seeks to rely upon the explanations she advanced as being provable lies and thereby demonstrating a consciousness of guilt.
I am not persuaded that there is any unfairness in the admission of the recorded conversation. Indeed, in all of the circumstances, the conversation could have been recounted by the investigator Mr Griffiths or by Ms Thomas who was present and listened to the conversation. They would be entitled to refresh their memories and to give the evidence first-hand.
There is no unfairness in the playing of the recording and I accordingly rule that it be admitted.
[2]
Amendments
19 March 2024 - Coversheet - corrected case title.
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Decision last updated: 19 March 2024