Roberts-Smith v Fairfax Media Publications Pty Ltd

1. On the first day of the hearing of the appellant's reopening application the respondents objected to the tender of a recording of a telephone conversation between Mr McKenzie and Person 17. The objection was taken under ss 135 and 138 of the Evidence Act 1995 (Cth). At the time, the Court overruled the objection and admitted the recording and indicated that reasons would be delivered later. These are those reasons.

SECTION 135

1. Section 135 provides:

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time.

1. The relevant subsection is s 135(1)(a). Two questions arise: what is the probative value of the recording and would its tender be unfairly prejudicial.

1. Some guidance on what probative value means for the purposes of s 135 can be obtained by considering s 137. Section 137 requires that in a criminal proceeding evidence must not be admitted if its probative value would be outweighed by the danger of unfair prejudice to the defendant. Like s 135, s 137 calls for a balancing exercise in which one of the elements weighed is the probative value of the proposed tender. In IMM v The Queen [2016] HCA 14; 257 CLR 300 at [47] a majority comprising French CJ, Kiefel, Bell and Keane JJ observed that the assessment of the probative value of evidence under s 137 requires that 'the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue'. In that respect, there is in our opinion no relevant distinction between s 135(a) and s 137.
2. For the purposes of s 135(a) it follows that the probative value of the recording is to be taken at its highest. The respondents submitted that the probative value of the recording was low for various factual reasons. In assessing its probative value for the purposes of s 135(1)(a) these submissions had to be disregarded.
3. The recording may suggest that Mr McKenzie accessed the appellant's legally privileged material and acted unethically. In saying that, we are not saying that it does prove this, only that viewed at its highest for the purposes of an evidentiary ruling, it might do so. Once that is accepted, it follows that the respondents' submission that the probative value of the recording is low could not be accepted. We assessed its probative value as lying in the middle range.

1. Assuming without deciding that unfair prejudice for the purposes of s 135(a) includes procedural prejudice, the recording gave rise to no such prejudice. As the recording is of Mr McKenzie himself, he was able to give evidence about it and in fact affirmed an affidavit doing so. Further, the appellant did not rely on anything said by Person 17 during the recording to advance his case so the fact that she was not available for cross-examination was not procedurally significant either.
2. In terms of substantive unfair prejudice, the respondents emphasised problematic aspects of the recording: the recording is an 85 second excerpt from what is obviously a longer conversation; the recording may itself have been subject to editing which is significant where Mr McKenzie does not have a clear recollection of the conversation; and the recording was sent anonymously to the appellant's solicitors on 15 March 2025 by an email which was signed off with the words 'All the best' from which it may be inferred (even if only weakly) that it was prepared by someone who wished to assist the appellant and to harm Mr McKenzie.
3. It was not necessary to form any concluded views about these matters. The Court is not a jury and there was no risk that the Court would assess the probative value of the recording without having regard to the respondents' submissions about its deficiencies which, if established, would affect the weight it is to be given. In that circumstance, the tender of the recording will not result in any unfair prejudice and certainly not, as s 135(a) requires, unfair prejudice which substantially outweighs its probative value.

SECTION 138

1. Section 138 provides:

(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 Australian Human Rights Commission Act 1986.

1. The respondents submitted that Person 17 made the recording in Queensland most likely using her phone. Whilst it is not an offence in Queensland to record a private conversation, it is an offence to communicate such a recording to anyone else. The respondents submitted that at some stage it was logically inevitable that Person 17 must have communicated the recording to another person. Only if she had done so was it possible to explain how it came to be somewhere other than on her phone.
2. This submission had intuitive appeal. It is of course possible that the recording was made by other methods such as a telephone intercept or that another person has had surreptitious access to Person 17's phone. However, this is unlikely, and we accepted that on the balance of probabilities it was established that Person 17 made the recording in Queensland and at some point communicated it to at least one other person.
3. On this basis, the respondents submitted that the recording was illegally obtained and should be excluded under s 138. The relevant illegality is said to arise from s 45 of the Invasion of Privacy Act 1971 (Qld):

(1) A person who, having been a party to a private conversation and having used a listening device to overhear, record, monitor or listen to that conversation, subsequently communicates or publishes to any other person any record of the conversation made, directly or indirectly, by the use of the listening device or any statement prepared from such a record is guilty of an offence against this Act and is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for 2 years.

If a corporation commits an offence against this provision, an executive officer of the corporation may be taken, under section 49A, to have also committed the offence.

(2) Subsection (1) does not apply where the communication or publication -

(a) is made to another party to the private conversation or with the consent, express or implied, of all other parties to the private conversation, being parties referred to in section 42(2)(a); or

(b) is made in the course of legal proceedings; or

(c) is not more than is reasonably necessary -

(i) in the public interest; or

(ii) in the performance of a duty of the person making the communication or publication; or

(iii) for the protection of the lawful interests of that person; or

(d) is made to a person who has, or is believed, on reasonable grounds, by the person making the communication or publication to have, such an interest in the private conversation as to make the communication or publication reasonable under the circumstances in which it is made; or

(e) is made by a person who used the listening device to overhear, record, monitor, or listen to the private conversation under section 43(2)(c) or (d).

legal proceedings includes -

(a) proceedings (whether civil or criminal) in or before any court; and

(b) proceedings before justices; and

(c) proceedings before any court, tribunal or person (including any inquiry, examination or arbitration) in which evidence is or may be given; and

(d) any part of legal proceedings.

1. Section 45(1) makes communication of the recording an offence if done by the person who made the recording. The offence is indictable and carries a maximum penalty of 40 penalty units or imprisonment for two years. The debate in this Court focussed on the exception in s 45(2)(b). The appellant submitted that Person 17 had made the communication in the course of legal proceedings so that the exception in s 45(2)(b) was engaged. The legal proceedings identified by the appellant were the three proceedings before this Court on appeal.
2. It was convenient to assume in favour of the respondents that the exception in s 45(2)(b) was not engaged and that Person 17 did commit the offence in s 45(1). On that assumption we would still not have excluded the evidence under s 138. Relevantly, s 138(1) imposes a prohibition on the admission of illegally obtained evidence unless it is shown that 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. In answering that question, the Court must take into account the matters in s 138(3).
3. Taking the recording at its highest, its probative value lies in the middle range as we explained above. The factor in s 138(3)(a) therefore favours the admission of the recording. The recording was also the central evidence in the appellant's application which means that the factor in s 138(3)(b) also favoured the admission of the recording.
4. The nature of the offence which, by hypothesis, was committed by Person 17 is an offence against privacy laws and is an indictable offence carrying a maximum penalty of 40 penalty units or two years imprisonment (s 138(3)(c)). On the other hand (but also under s 138(3)(c)), the nature of the allegation now made by the appellant - that there has been mistrial because of misconduct by Mr McKenzie in accessing the appellant's privileged information - is of a grave nature. Taken together, these matters pull in opposite directions, but the latter predominates so that this matter also favoured admission of the recording.
5. On the hypothesis that Person 17 committed the offence in s 45(1) by communicating the recording to someone, it was convenient to assume in the respondents' favour that this was done by her for the specific purpose of harming Mr McKenzie and affecting the outcome of these proceedings. This makes the offence objectively very serious (s 138(3)(d)). This matter favours excluding the recording from the evidence. On the same hypothesis, it also follows that Person 17's conduct was deliberate (s 138(3)(e)) which again is a matter which favours rejecting the tender of the recording. The same matters also entail that Person 17 would have hypothetically infringed Mr McKenzie's right to privacy under Art 17 of the International Covenant on Civil and Political Rights (s 138(3)(f)) which favours the exclusion of the recording from evidence.
6. There was no evidence before this Court which would permit it to assess whether any proceeding, whether criminal or civil, is likely to be commenced against Person 17 in relation to the communication (s 138(3)(g)). This matter is therefore neutral.
7. As to whether it was possible for the evidence to have been obtained by other lawful means (s 138(3)(h)), the evidence is unclear. In theory, Person 17 could have given direct evidence but this is speculative. Like Mr McKenzie she may not have been able to remember. This matter was neutral.
8. The inclusive nature of s 138(3) permits the Court to take into account other matters however none appear apposite. Taking into account each of the matters just considered, it is then necessary to ask the question posed by s 138(1). In our view, the desirability of admitting the recording outweighed the undesirability of admitting evidence which has been obtained the way in which this evidence was obtained.
9. For the above reasons, and even assuming as we have that Person 17 shared the recording unlawfully, we concluded that the discretion in s 138(1) should not be exercised to exclude it. Alternatively, if Person 17 had not shared the recording illegally, s 138 would have had no application since the evidence would not have been illegally obtained. In either case the result is the same. The recording and derivative versions of the recording were admissible.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Perram, Katzmann and Kennett.

NSD 689 of 2023 NSD 690 of 2023 NSD 691 of 2023