Togher trading as Patrick Togher Artists' Management v Alexander & Ors

Was there a contravention of an Australian law?

1. The tender of the recording (and transcript) occurred on Day 5 of the trial in which Mr Alexander, Mr McClure and Mr Harkness have been at all times unrepresented. Anticipating that there would be argument on the sound recording, and in advance of the argument, I arranged for the supply of copies to all litigants of extracts from the Surveillance Devices Act 2007 (NSW) and s 138 of the Evidence Act 1995 (NSW).
2. During the argument itself, Mr Alexander referred to provisions (ss 1-2 & 6-7) of the Surveillance Devices Act 1999 (Vic). After argument in Court, I subsequently arranged for the provision to the litigants of further provisions of the Surveillance Devices Act 1999 (Vic) and invited Mr McClure and Mr Harkness to make any further submissions on the applicability of those provisions. I provided them with this opportunity since, on reflection, it appeared to me, uninstructed by authority, that the Victorian legislation is more apposite, given that the recording occurred in Victoria and that the legislation concerns, or indeed confers, substantive rights to protect against intrusion or interference with privacy. Mr McClure and Mr Harkness submit, however, that it is the NSW legislative regime that should apply, solely on the basis that the forum for the dispute is in New South Wales.
3. The choice of law, in this respect, will not make any difference to the result of this application, however, for convenience, I will refer to provisions of both NSW legislation and the Victorian legislation.
4. The relevant provisions of the Surveillance Act NSW are: 1. Section 7(1)(b), which prohibits the use of a listening device to record a "private conversation" to which that person is a party; 2. Section 7(3) provides that s 7(1)(b) does not apply to the use of a listening device by a party to a private conversation if: 1. all of the principal parties to the conversation consent, expressly or impliedly to the listening device being so used, or 2. a principal party to the conversation consents to the listening device being so used and the recording of the conversation: 1. is reasonably necessary for the protection of the lawful interests of that principal party; or 2. is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation. 1. Section 11, which prohibits a person from publishing or communicating a "private conversation" or the record of that conversation to another person if the first person's knowledge is derived from the use of a listening device. 2. Section 4 defines a 'party' as follows in respect to two discrete situations: 1. to an activity - means a person who takes part in the activity; 2. to a private conversation - means a person by or to whom words are spoken in the due course of the conversation or a person who, with the consent, express or implied, of any of the persons by or to whom words are spoken in the course of the conversation, records, monitors or listens to those words. 1. Section 4 defines a "private conversation" to mean: ".. Any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only: a) by themselves, or all or b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be heard by someone else"
5. Relevant provisions of the Surveillance Act 1999 (Vic) are as follows: 1. Section 11(1) generally proscribes a person knowingly publishing a record of a private conversation (or activity) made as a (direct or indirect) result of the use of a listening device. 2. Exceptions to this prohibition arise (under s 11(2)) where, relevantly: 1. The communication or publication is made with the express or implied consent of each party to the private conversation; 2. The communication or publication is no more than reasonably necessary: 1. In the public interest; or 2. For the protection of the lawful interests of the person making it. 1. Section 3 contains the following definitions: 1. 'private activity' means an activity carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be observed only by themselves, but does not include: (a) and activity carried on outside a building; or (b) and activity carried on in any circumstances in which the parties to it ought reasonably to expect that it may be observed by someone else; 2. 'private conversation' means a conversation carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be heard only by themselves, but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it may be overheard by someone else; and 3. A 'party' to a 'private activity' means a person who takes part in the activity; and a 'party' to a 'private conversation' means a person by or to whom words are spoken in the course of the conversation.
6. It may be seen that although there may be some textual differences, the relevant proscriptions and exceptions in the legislation of both states are materially similar. The SD legislation (of both states) was an enactment that followed, and adopted concepts, from earlier legislation, such as the former Listening Devices Act. This is particularly relevant to the defences, or excuses to the prohibitions under the current legislation. Thus, for the purposes of this application, I take the expressions: 1. 'reasonably necessary' to mean 'appropriate, but not essential' so that 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; 2. 'protection' means 'defence from harm, danger and evil;' 3. 'lawful interests', though of broad construction, is not to be interpreted in such a way as to render otiose the primary purpose of the legislation. (see Sepulveda v R [2006] NSWCCA 379 at [116]-[142]. The last paragraph was applied in Alexander v R [2019] NSWCCA 79 at [118]).
7. There was no suggestion that Mr Wilson's mobile phone was not a surveillance device for the purposes of the legislation. Further, he intended to use it.
8. There can be no sensible suggestion that Mr McClure or Mr Harkness consented to the use of the listening device. Accordingly a first question is whether what was recorded by Mr Wilson was a 'private conversation' in the statutory sense.
9. In the context described above, I reiterate that, at least, Mr McClure recommended a meeting of various people in a theatre room - and desired to attend. But he did not know who those people were, or how many there were in number.
10. I am satisfied that, although there was an indeterminate number of attendees, Mr McClure and Mr Harkness only intended that the words used would be listened to only by those in attendance.
11. Although Mr Harkness and Mr McClure may reasonably have expected that an account of what they said may have been conveyed to others (such as agents, or family relatives or dependents of the musicians), it is another thing to say that they would reasonably have expected what they said to be listened to by others who were not in the meeting. I note, also, that although the content of the conversation concerned the operation, performance and frustration of contracts of a large group of musicians, rather than personal matters, that does not take the conversation out of the purview of the legislation: RRG Nominees at [21]
12. In such circumstances, I am satisfied that there was a 'private conversation' to which the prohibition in s 11 of the Surveillance Act (Vic) (or s 7 of the NSW Surveillance Act) is engaged. That means that prima facie, there has been a contravention of s 11 of the Victorian Surveillance Act (or s 7 of the NSW Surveillance Act).
13. Neither Mr McClure nor Mr Harkness consented (expressly or impliedly) to the use of the listening advice.
14. Uninstructed by authority, I would not regard Mr Wilson's recording to be reasonably necessary for the public interest. Although it may be said that a large number of musicians (and any associates) who were not in attendance at the meeting were, or may have been interested in what was said, this did not justify them being privy to a sound recording: they could have requested the provision of information by any of Mr Alexander, Mr McClure or Mr Harkness subsequently to the meeting. I am not satisfied that the sound recording was reasonably necessary for protection of the public interest.
15. This means that it is necessary to consider whether any defence in s 11(2) of the Victorian Surveillance Devices Act, (or s 7(3)(b)(i) in relation to the NSW Surveillance Devices Act), applies.
16. As a first point, Mr McClure and Mr Harkness submit that this exception could not be applicable since Mr Wilson is not a party to the proceeding. It is true that Mr Wilson is not a party to the proceeding, but the issue is whether the sound recording has been obtained as a result of a contravention (by Mr Wilson) of an Australian law. There is no requirement that he be a party to a proceeding in which a sound recording he illegally took is sought to be admitted.
17. Was the recording reasonably necessary for the protection of Mr Wilson's lawful interests? Mr Alexander carries the onus of persuading me that it was.
18. In his affidavit, Mr Wilson said, in effect, that he was concerned that his lawful interests could be detrimentally affected, but said no more than that. This was simply a matter of bare assertion of little weight. He elaborated, to some degree, what he meant when he gave evidence. He was worried about his position, as artist, about payment for past and future services. He was apprehensive about past (I infer verbal) promises having been broken. He decided to take a recording so that he had a record in case he may later wish to vindicate his position; if necessary, by making a future claim.
19. On the matter of what is a 'lawful interest,' attempts to comprehensively define the concept have proven elusive; and sometimes, the concept has been defined in negative terms (as to what does not constitute a lawful interest). In Thomas v Nash [2010] SASC 153, it was said (at [48]) that a mere desire to have a reliable record of the conversation was not enough (cited, with approval, in RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No.3) [2018] FCA 404 at [31]).
20. On the other hand, it appears to me from Levy v Bablis [2013] NSWCA 28 at [109] that (by negative implication), it may be a lawful interest to obtain admissions as to transactions that had been undertaken and in respect of which the person taking the sound recording, may have legal rights.
21. Conscious as I am of the importance of not undermining the import of the statutory prohibition, in my opinion, the layered structure of protections in the SD Act and the defence of protection of lawful interests must be given at least some practical content and effect. I consider that Mr Wilson's articulation of his intention and purpose - to have a record of any verbal promise of past or future payment for his past or future services lest there be any future dispute - does amount to a 'lawful interest'.
22. That being so, the defence in s 11(2) of the Surveillance Devices Act 1999 (Vic) (s 7(3)(b)(i) of the Surveillance Devices Act (NSW)) is made out.
23. There is no contravention of the prohibition in s 11 of the Surveillance Devices Act 1999 (Vic) (or s 7 of the Surveillance Devices Act 2007 (NSW)).
24. Mr McClure and Mr Harkness furnished (without leave) an additional written submission to the effect that s 11 of the Surveillance Devices Act 2007 (NSW) may have been contravened. That provision proscribes publication or communication that has come to a person's knowledge as a direct or indirect result of the use of a listening device. They submitted that Mr Wilson contravened this provision by communicating the content of the sound recording to Mr Alexander (and others) that he knew had resulted from his use of his phone. They also submit that the exceptions in s 11(2) were not made out. I disagree with the last submission. Section 11(2) provides an exception where the communication is made to a 'party' to the private conversation or activity. Pursuant to the definition of 'party' (in s 4), Mr Alexander was a party to the private conversation or activity.

Was the evidence obtained improperly or in consequence of an impropriety?

1. The absence of a finding of a contravention of Australian law is not conclusive of the issue of whether evidence may have been obtained in consequence of an impropriety (Evidence Act, s 138(1)(b)). This is a matter that is separate to proof of a contravention. Plainly there is the potential for overlap: the use of evidence that is illegally obtained may be also regarded as evidence that is improperly obtained. But in the absence of proven illegality, the use of evidence may or may not be improper. That is reason enough to go on to consider the factors in s 138(1), however, another reason for considering those factors is to cover the contingency that I am wrong in finding an absence of proof of contravention of an Australian law.
2. In See v Hardman & Anor [2002] NSWSC 234, Bryson J (at [26]-[28]) determined that there was an impropriety in making a secret recording of a conversation bearing on a business (or other important) interest. His Honour emphasised that to do so deprived other participants the chance to decide whether or not to participate and would have caused other disruption. At any rate, his Honour found that what the community thought about secret recordings was clear, and explained the reasons for the enactment of legislation such as the (then) Listening Devices Act.
3. With all respect, I am not convinced that the use of a listening device in ordinary business or social behaviour is, axiomatically, to be regarded as 'improper' as the above observations suggest. Much depends on the context.
4. Speakers at public meetings in public places (even enclosed public places) with indeterminate numbers of attendees doubtless have an expectation that the law will be complied with. But in the age of the IPhone, it is a common place for events attended by large gatherings to be filmed, or recorded, for manifold reasons; and persons occupying positions of community leadership would generally, I think, be taken to exercise some circumspection or restraint in what they say when they address such meetings; in anticipation that what they say is conceivably likely (if not also intended) to induce some future course of action in the attendees. This is especially so in gatherings of large people; in which speakers do not know the identity of all of those in attendance. This may be seen, most obviously in political meetings, but is not limited to that category. It is hard to see what cause the speakers have to object to what they say, unless, perhaps, they are concerned about any liabilities that might arise from what they say. It is open to them, of course, to make their intention plain that what they say is to be treated as being subject to a disclaimer of reliance by those not in attendance, or to stipulate that what they say is confined or confidential to those listening in (even if there might be obvious difficulties in enforcing that stipulation) and any breach of that, by the use of a surreptitious recording would, I think, lead an objective bystander to think that there was a greater sense of impropriety than if no such disclaimer or stipulation had been made at all.
5. Here, Mr Harkness and Mr McClure were addressing a large number of musicians in a public theatre, or place of entertainment. On their case, and leaving aside contestable questions as to what responsibility they, the SOCIA Church or Grace Missions, bore for the position that the musicians found themselves in as at early January 2017, part of their purpose, it seemed to me, was to demonstrate communal concern, and empathy for the musicians who were confronted by a problem regarding the viability of the festival. Having listed to the content of the discussion, verbal advice and representations were made by Mr McClure and Mr Harkness that they knew, or ought to have known, may be relied upon by the musicians, like Mr Wilson, to guide their future choices. That being so, I do not regard it as objectively, unreasonable, that persons in the position of Messrs Harkness and McClure might anticipate that Mr Wilson might seek a record of any representation, or perhaps promise, that they might make.
6. I am not persuaded by Mr McClure or Mr Harkness that there was an impropriety in Mr Wilson taking the sound recording.
7. In case I am wrong that the evidence of the sound recording was not obtained improperly or in contravention of an Australian law, I will now consider the factors in ss 138(2) and (3) that go to the exercise of my discretion in s 138(1) of the Evidence Act.

Were either of the matters in s 138(2) made out?

1. The sound recording reveals that the main purpose of the meeting was informative: to explain the predicament in which those musicians and other personnel involved in the project were in; and to consider what options would be taken. There was no evidence, in the notice of the meeting (such as, for example, an agenda) to indicate the likely topics.
2. There was some questioning by musicians of what occurred at the meeting, but none of this was designed to procure admissions by Mr Harkness or Mr McClure. Such questioning as there was from the musicians was from the vantage point of ignorance (as to why there was a problem with the prospective shows) and the musicians were seeking information from the persons that they understood to be the executive producers, or at least persons who they thought were best placed to inform them.
3. There was no deception or coercion practised upon Messrs McClure or Harkness by Mr Wilson.

Probative value of the evidence

1. 'Probative value' means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
2. I was assisted in interpreting the sound recording by use of a transcript. The transcript was Exhibit B on the voir dire. The recording (Exhibit A on the voir dire) contained a number of statements (express or implied) from Messrs McClure and Harkness. The transcript ran to 56 pages. It is unnecessary to parse the document to find evidence that could rationally affect the assessment of the probability of the existence of a fact in issue. Without being exhaustive, the statements expressly or impliedly conveyed that: 1. Mr McClure was aware of a contract entered into with Ticketek & Athenaeum with some entity with which he was associated, to such degree that he formed a view that it had been breached by Ticketek; 2. Mr McClure had such knowledge of the tickets from New Year's Eve to form a view whether Grace Missions would 'break even'. 3. Mr Harkness was concerned about what money Grace Missions had already put in and the prospect of throwing good money after bad. 4. Mr Harkness had an understanding that there was a minimum requirement of ticket sales just to break even. 5. Mr Harkness was of a view that Ticketek owed a duty of care "to us"; 6. Whilst Grace Missions did not enter into a (written) contract (with Melbourne Musical Theatre Festival) Grace Missions were honourable people; 7. Messrs McClure and Harkness had to consider the option of cancelling shows; 8. Mr Harkness was conscious that "we" (Grace Missions) had spent a whole lot of money, and there was yet a further sum $50,000, to be paid for New Year, which "we" would honour. That would not happen, however, if there were no further ticket sales as there was no money in the bank. 9. In terms of who might be included in a class action, this would include the artists, and also Grace Missions; 10. Mr McClure said "we" didn't sign any contracts; rather "we" are underwriters. 11. Mr McClure said that the project had not been vetted by Mr Harkness, or Brownyn Hancock (another SOCIA Church Committee member) but 'we' were on 'a handshake' to honour the performance on New year's Eve, and to honour Mr Alexander as well; even if "we don't have to, we're gonna do it". The same would happen with you (the musicians before him). 12. Mr McClure believed that a handshake may be sufficient for an agreement even in the absence of signing. 13. Mr McClure regarded Grace Missions as being an underwriting organization that has you (the artists') interests at heart.
3. Leaving aside express statements that were made, Messrs McClure and Mr Harkness may arguably have been said to have also made admissions by standing by, without correcting statements by Mr Alexander that they were 'Executive Producers.'
4. In my opinion, these statements may constitute admissions by Mr McClure and Harkness which significantly affects the assessment of the probability of the existence of facts in issue, being: 1. Whether Grace Missions agreed to be an 'underwriter' from March 2016, 2. Whether a contract between Grace Missions (and/or SOCIA Church) could be inferred from conduct, in the absence of a written contract; 3. whether Grace Missions was anything more than an essentially benign but disinterested lender advancing monies on a conditional basis, from July 2016; 4. Whether Mr Alexander's account of what was said in March 2016 was to be accepted; 5. Whether Grace Missions agreed to lend more than the $50,000 it says was agreed to with Mr Alexander in July 2016; 6. Whether Mr McClure and Mr Harkness should be believed when they say that a reasons for rejecting Mr Alexander's account of what was said in March 2016, included: 1. their past unsuccessful transaction(s) with Mr Alexander; 2. their belief that he had a mental illness and was a dangerous man (being propositions put to Mr Alexander by Mr McClure in his cross-examination of him). 1. The general credibility of Mr Harkness and Mr McClure (noting that, by s 102 of the Evidence Act, the evidence would not be admissible if it was only relevant to their credibility).

Importance of the evidence

1. The affidavit evidence of Mr Alexander, and that of Messrs McClure and Harkness, is diametrically in conflict. This evidence has been given many months after the events in question and, in the context of adversarial litigation where the litigants have much financially at stake. The trial to date has indicated a determined resolve by all litigants to advance contrary cases, with each litigant casting serious aspersions on the other. The background to the litigation indicates that there was an absence of written documentation to evidence the transactions in issue. That, of course, complicates the task of ascertaining whether and when agreements were entered and if so, on what terms.
2. The evidence is important since it might be thought as going some way to establishing the greater likelihood of one litigant's version of what was said, or the unlikelihood of another, which would not otherwise exist.
3. The sound recording is the best evidence of what was said at the meeting, since even though Mr Alexander, and Mr Wilson have both given accounts of what was said in their affidavit, such evidence is not as reliable as a sound recording.

Nature of the cause of action and subject matter of the proceeding

1. This is a commercial dispute tried in the Court's civil jurisdiction. This is a neutral factor.

Was the impropriety or contravention grave and was it deliberate or reckless?

1. As I have found, I accept that Mr Wilson's purpose in taking the recording was protective. It was not intended to 'entrap' Mr McClure or Mr Harkness; indeed it was not established that he had any prior, or first-hand dealings with them, or for that matter, whether he would anticipate recieving any opportunity to hear them speak - the notice he received by email from Mr Alexander was silent as to who would speak at the meeting.
2. As events turned out, what occurred at the meeting was a rambling discussion. No questions were asked by Mr Wilson of a kind that was intended to induce some statement from Mr McClure or Mr Harkness to their potential detriment.
3. I note also that although, for the purposes of the SD Act (in both states), what was said might have amounted to a 'private conversation', in real terms, that characterisation is somewhat artificial. Mr McClure and Mr Harkness were speaking to a large audience, largely about their concerns for their performances and whether they would get paid. It would probably have been anticipated that these performers might go on to speak to a range of people, based upon what was said, including their agents and, perhaps family relatives or even those financially dependent upon the performers. Nobody was sworn to secrecy by Mr McClure or Mr Harkness at that meeting. Indeed, it seemed to me that, viewed in a charitable light, by their attendance at the meeting, Mr McClure and Mr Harkness were partly motivated by the concern to appear not only sympathetic to, but to encourage the belief that they were civic minded advocates for the musicians who would be taken to have expected that what they said, advised or encouraged would have been relied upon by musicians in considering their options as at 3 January. That might well involve, as I have suggested, the disclosure of what they had been told to other persons.
4. There was no suggestion that Mr Wilson knowingly broke the law, or was reckless in doing so.

Whether the impropriety or contravention was contrary to civil and political rights?

1. There is no tort for breach of privacy. Nevertheless, Art 17 to the International Covenant on Civil and Political Rights recognises that there is a right not to be subjected to unlawful interference with privacy. It is also well-established that legislation such as the SD Act is intended to protect against unjustified invasion of privacy: Miller v TCN Channel Nine (1988) 36 A Crim R 92 at 94; Sepulveda at [105]-[111]. Although I am expressly enjoined to consider this consideration, it is a matter that is practically subsumed, in any event, in considerations as to whether the sound recording was obtained "illegally" or "improperly;" as each of those notions import policy considerations of the importance of preserving 'private' statements.

Are proceedings likely in respect of the impropriety or contravention?

1. This prospect appears remote. This consideration appears more directed to the deterrence of law enforcement officials. It has little weight in this context.

Could the evidence be obtained without impropriety or contravention?

1. The proceeding has demonstrated to me some of the shortcomings of informal alleged 'handshake' agreements, which seemed to be somewhat prevalent within the section of the arts community the subject of this proceeding. Mr Wilson's motive, or purpose, as I have found was to obtain a record of any promise or assurance made during the provision of information.
2. However, it is Mr Alexander who seeks the tender of the recording and the question is whether the content of what was contained within the recording could have been otherwise obtained. I have no doubt that it could not have been obtained but for the conduct of recording the meeting.

Does the desirability of admitting the evidence outweigh the undesirability of not admitting the evidence?

1. To reiterate, the premise here is that there was a contravention of an Australian law or impropriety. I am mindful that the prohibitions in the Surveillance Devices legislation reflect the community's aversion to illicit recording of private conversations. In exercising the discretion in s 138 I am also mindful that the Court should not be too ready to determine that the desirability of admitting the evidence outweighs the undesirability of receiving evidence obtained unlawfully or improperly; lest the integrity of the judicial system be diminished by an appearance of judicial condonation of the unlawful or improper conduct.
2. Nevertheless, because of the probative value of the evidence, its importance and the circumstance that the recording did not amount to a grave, deliberate or reckless contravention, I would have also found (should it have become necessary to find) that, in my assessment of the balancing exercise in all the circumstances, the desirability of admitting the sound recording outweighed the undesirability of rejecting it.
3. For similar reasons, the desirability of receiving accounts by Mr Alexander and Mr Wilson of what was said at the meeting, which accounts were partly derived from the sound recording, outweighs the undesirability of admitting evidence obtained illegally or improperly.

Other grounds for exclusion?

1. In their written joint submissions (prepared in advance before the hearing of the sound recording), Mr McClure and Mr Harkness also argue against the admissibility of the sound recording on the basis of the Court's discretion in s 135 of the Evidence Act 1995 (NSW).
2. They submitted that the sound recording was broken in parts, attended by background noise, and required extensive court time to play the recording.
3. The effect of this submission was to some extent spent, once the sound recording was heard. As I explained to them during the hearing of the argument, having heard from them extensively in the four days prior to the trial, I was well able to identify their voices on the sound recording. Further, although there certainly were some breaks and some interference in the recording, I was satisfied that the recording, although not perfect, generated a sufficiently reliable record of what was said at the meeting as to make it admissible. Nevertheless, it remains open to Mr McClure and Mr Harkness to later make submissions as to the weight I should accord to the sound recording on this ground.
4. They also jointly submitted that the admission of the sound recording was 'unfairly prejudicial', within the meaning of s 135(a). As the authorities amply demonstrate, evidence is not unfairly prejudicial merely because it tends to damage the case of a party or support the case of the party's opponent (Ainsworth v Burden [2005] NSWCA 174 at [99]).
5. I have noted that the sound recording has significant probative value.
6. This is, of course, trial by judge alone. I do not consider that there is a "danger" that, as a result of listening to the sound recording, I will be diverted from trying the case on any extraneous or improper grounds.
7. Mr Harkness and Mr McClure each made some additional oral submissions as to why the tender of the sound recording should be rejected. Mr Harkness submitted that there was entrapment in this case. For reasons I have indicated already, I do not consider that there was any entrapment. That notion presupposes, or is predicated upon a belief, expectation or anticipation that something might be said by someone else which could be later used against him or her. I do not find that Mr Wilson had this state of mind and, if the submission was to be accepted, the proposition of entrapment should have been fairly put to Mr Wilson. It was not.
8. Mr McClure submitted that had he known that he was being recorded, he would have acted in a different way. I was not certain whether this submission was directed to s 135(a), or whether it generally was intended to support a submission that admitting the sound recording would be 'unfair' to Mr McClure, in the sense of his not receiving a fair trial.
9. At any rate, it remains open to Mr McClure to advance submissions as to the weight I should attribute to the sound recording, set against his evidence as to his intentions, after the evidence in the trial has concluded.

Summary

1. For these reasons, I find that: 1. the defence in s 11(2) of the Surveillance Devices Act 1999 (Vic) (or s 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW)) is made out. 2. there is no contravention of the prohibition in s 11 of the Surveillance Devices Act 1999 (Vic) (or ss 7(1) or 11(1) of the Surveillance Devices Act 2007 (NSW). 3. The sound recording was not obtained in contravention of an Australian law; 4. The sound recording was not obtained improperly, in the sense referred to in s 138. 5. If I am wrong about (a), (b), (c) and (d), I would have admitted the sound recording in any event pursuant to s 138(1) of the Evidence Act 1995 (NSW) as 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. 6. I reject Mr McClure and Mr Harkness' additional challenges to the admissibility of the sound recording under s 135 of the Evidence Act 1995 (NSW).
2. Mr Harkness and Mr McClure pointed to certain breaks or omissions in the transcript of the recording. In view of that objection, I propose to treat the transcript only as an aide memoire: Eastman v The Queen (1997) 76 FCR 9; R v Cassar and Sleiman (No. 17) [1999] NSWSC 436 at [7].
3. The evidence on the voir dire will be treated as if it was adduced in the trial. The sound recording will be Exhibit C4 in the proceeding.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 May 2019