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Episode 103
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Substantive Law
The Lives of Others: When is a Conversation in a Public Place a Private Conversation?
Law as stated: 27 October 2023
What is this?
This episode was published and is accurate as at this date.
Rejoin crim law superstars Helen and Damien from Hugo Law Group as they step through the use and abuse of listening and surveillance devices.
Substantive Law| What area(s) of law does this episode consider? | Surveillance devices. |
| Why is this topic relevant? | You could easily associate the idea of surveillance with government agencies secretly monitoring the conversations of foreign diplomats. That government connection is strikingly illustrated by the Australia-East Timor Spying Scandal of the early 2000s and the decades of legal maneuvering since. But the proliferation of devices capable of such surveillance and recording – even since the early 2000s – means that surveillance is no longer solely the province of state actors. Most of us carry in our pockets a device more than capable of covertly recording audio and video; with or without consent. And the technology and capability available today to state actors like the police is exponentially more powerful. |
| What legislation is considered in this episode? | Surveillance Devices Act 2007 (NSW) (‘Act’) |
| What cases are considered in this episode? | Poland v Hedley [2019] WASC 403
Kanjian Holdings No 1 Pty Ltd v Kanjian; Kanjian v Kanjian (No 3) [2021] NSWSC 839
Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133
Sepulveda v R [2006] NSWCCA 379
Violi v Berrivale Orchards Limited (2000) 99 FCR 580
Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd [2019] FCA 2200
Rathswohl v Court [2020] NSWSC 1490
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| What are the main points? |
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DT = David Turner; HC = Helen Christinson; DM = Damien Mahon; RD = Ross Davis
| 00:00:00 | DT: | Hello and welcome to Hearsay The Legal Podcast, a CPD podcast that allows Australian lawyers to earn their CPD points on the go and at a time that suits them. I’m your host, David Turner. Hearsay The Legal Podcast is proudly supported by Lext Australia. Lext’s mission is to improve user experiences in the law and legal services and Hearsay The Legal Podcast is how we’re improving the experience of CPD. When you hear the word surveillance, you might associate it with government agencies secretly monitoring the conversations of foreign diplomats like the Australia East Timor spying scandal in the early 2000s and the decades of legal manoeuvring that followed. But the proliferation of devices capable of surveillance and recording – even since the early 2000s – means that surveillance is no longer solely the province of state actors. Most of us carry in our pocket a device more than capable of covertly recording both audio and video as well as geographic location with or without our consent. And so the technology and capability available today to state actors like the police is exponentially more powerful than that. So exactly what is a surveillance device? What can and can’t you do with one? Which recordings are permissible and which aren’t? And what can you do with a recording once you’ve obtained it? Joining me for a second time today is Helen Christensen and Damien Mahon. Since we last spoke with Helen and Damien, Helen has become a Partner at Hugo Law Group and Damien has been promoted to Associate. Helen and Damien, thank you so much for joining me again on Hearsay! |
| HC: | Thank you so much for having us. | |
| DT: | Now before we jump into the topic, yeah, exciting career updates for both of you. | |
| HC: | Yes, we’ve both had a big year and so has our firm. Hugo Law Group has expanded since last time we were in here. We’ve opened up an office in Perth and we’ll be opening up a new office in northern New South Wales in the new year. | |
| DT: | Wow, very exciting. | |
| HC: | It is, yes. | |
| DT: | And how’s the new title fitting you, Damien? | |
| DM: | Yeah, very well. Well, I guess both myself and Helen have been propelled into superstardom since our last appearance on Hearsay. So we’ve continued our good work as lawyers, but we’re now podcast celebrities. I think it’s appropriate that our position reflects that. | |
| DT: | Yeah, absolutely. And the paparazzi can be difficult to manage after an appearance on Hearsay, but hopefully you’re managing it just fine. | |
| HC: | Yeah, we’ve got some decoys running point. | |
| DT: | Some body doubles. Well, you have to. Let’s get into it. We’re talking about surveillance devices. And it’s sort of a nice follow on from our last conversation about illegally or improperly obtained evidence. By the way, if you haven’t listened to that one, dear listener, please go back and have a listen to that one to hear about Helen and Damien’s background before we spoke to them, their background and careers in the law, but also to hear about a topic that’s very closely tied to this one. But surveillance devices is our topic today. Let’s start from first principles, real basics. What legislation are we talking about, at least in New South Wales, when we’re talking about the Surveillance Devices Act? | |
| HC: | Yeah, sure. So in New South Wales, the Surveillance Devices Act 2007 is the legislation that we deal with when it comes to surveillance devices. The objects of the Act are threefold. So the first is that it provides law enforcement agencies with a really comprehensive framework for the use of surveillance devices in criminal investigations. It also enables law enforcement agencies to covertly gather evidence for the purposes of criminal prosecutions. And of course, finally, and what might I anticipate forms a lot of our discussion today is the third part of the objects of the Act, which is to ensure the privacy of individuals isn’t unnecessarily impinged upon. And it provides really strict requirements around the installation and the use and the maintenance of surveillance devices. | |
| DT: | Yeah, I think we will spend a lot of time on that third object because there’s a really close relationship between this act and civil liberties, isn’t it? As I said at the top of the episode, we do often think of surveillance in terms of state actors as the surveilling party. And the Act is an important fetter on that power of the state to monitor its citizens. But I’m really interested to also talk about this private use of surveillance devices as well, because as I said, I think we all carry surveillance devices with us every day. And this is a topic that’s really useful for civil litigators as well. This and their legality come up all the time in civil litigation. Now, whenever we have a case that hinges upon a conversation or an admission made in a conversation. Of course, we want some corroborating evidence to take that beyond the mere statement of it in an affidavit and recording is a powerful way to do that if it’s permissible. So you mentioned that the Act covers a few different kinds of surveillance devices. Maybe, Damien, I’ll throw to you, what are the different kinds of surveillance devices that the Act covers? | |
| DM: | Yeah, so it is a broad definition of what’s included as a surveillance device. The act encompasses modern surveillance devices, which people should be aware of, such as the use of smartphones. Long gone are the days where we’re talking about micro cassette players and wires and the kind of ideas you’d think of as historical surveillance. So in relation to the definition, it’s broken up into four parts. There’s a data surveillance device, a listening device, an optical surveillance device and a tracking device. And all four types of devices are included on the umbrella term of surveillance device. And a combination of the two, such as a smartphone, which may have the capability to take on a number of those functions. | |
| DT: | Yeah, well, all of them, really. And it sounds to me like the definition is one that is really more about purpose and functionality rather than a kind of static definition based on current technology. And there are different restrictions that apply to each device. So the restrictions that apply to using a video recording device are very different to those of an audio recording device. Maybe let’s start there just with that distinction, because although we’ve also got our tracking device and data surveillance devices, maybe we’ll come to a little bit later in the episode, I think eight times out of 10, we’re talking about video and talking about audio. And there’s a lot of misconceptions as well, I think, around what’s permissible, especially in a public space around video and audio. So maybe let’s start there. And let’s start with video. | |
| HC: | So video surveillance devices in terms of what’s permissible, and it is quite different to the listening device, which we’ll come to, but with video surveillance devices, it’s permissible to record someone by video, as long as you’re not trespassing when you’re doing the recording or making the recording. As long as you’re not interfering with a vehicle or something like that, then it’s permissible to actually video record someone. If that video also encompasses speaking, there may be some grey area there. And then maybe I’ll throw to you, Damien, about the listening devices and what might be permissible there. | |
| DM: | Yeah, so in relation to listening devices, section seven of the Surveillance Devices Act covers what would encroach on an illegal recording, it’s an offence. So in relation to that matter, or that offence provision, it carries a maximum penalty of five years. So I think I want to stress at the start that this is a serious criminal offence, and perhaps that’s not always commonly appreciated. But as far as what would constitute a breach of that provision, if you’re recording a private conversation, and we’ll say a little bit more about what may constitute a private conversation, but if you’re effectively secretly recording that private conversation and recording the words that are said, and the person who’s saying those words is not aware of it, that’s an offence under the provision. There are certain exceptions, which we’ll come to again. | |
| DT: | Yeah, I’m really interested to talk about two things there. One, what is a public conversation? Because, again, I think the heuristics that we might have, or the assumptions that we might have can be surprising there. And also what those exceptions are, because I said there’s some common assumptions that might not be correct about how the Act works with these things. And that includes, I think, audio or listening devices, and that includes in the legal profession. I think a lot of lawyers have the assumption or have the belief that, well, it’s unlawful to record a conversation, a private conversation without both parties consent, and that’s where it ends. But there’s an exception for recording conversations that are reasonably necessary for the protection of your lawful interests to record. And what extends to a lawful interest is a really interesting question, especially for those civil litigators who might be listening. But let’s take it a step back. Let’s talk about what a public or a private conversation is. | |
| HC: | So what’s interesting is, first up, there is the carve-out defence that you just spoke about. It’s made out essentially if the person recording the conversation can establish that they did so because it was reasonably necessary for the protection of their lawful interests, which is what you’ve just spoken about. Additionally, or that the recording was not made for the purpose of communicating or publishing the conversation or a report of the conversation to people who aren’t parties to the conversation. | |
| DT: | That’s a defence that might be relied upon if the recording’s made secretly. If the recording is made with the consent of the other person, you don’t need these sorts of defences. | |
| HC: | That’s exactly right. In terms of what constitutes a private conversation, this is an interesting question because there’s some law around where a private conversation can occur. For example, one might have a conversation with another person in a restaurant or something like that and might suggest that conversation was private even though it was occurring in a public place. And there are a couple of cases that have dealt with this question. The case of Poland v Hedley is kind of an interesting one. So this occurred where Mr Poland attended a meeting at a restaurant and during that meeting, the conversation was recorded. And the parties that were part of that conversation were the only people seated at the table and they didn’t expect that anybody else would be listening in to their conversation. The court in that case held that people seated at a table in a restaurant or a cafe don’t ordinarily expect their conversation to be overheard, even though it might be possible for other patrons or staff or anyone passing by to accurately hear the conversation. And it’s common for people to conduct business meetings and job interviews and other conversations which they wish to be private in those public settings. So in that case, the objective circumstances of the conversation established that the conversation was a private conversation even though it was happening in a public place. The other case that is really on point in terms of a private conversation happening in a public area is the case of Kanjian. This was a case where there was this really protracted and intricate background of family dispute. It’s a really large judgment. It covers this issue as well as a whole bunch of issues about estoppel and things like that. And that case involved some family members going to visit other family members in a nursing home and secretly recording a conversation that occurred between those parties. So although it was happening in a nursing home, it was happening in the dining area of the nursing home and it was submitted that because it was a busy dining room, then the parties ought reasonably to have expected that it might have been overheard by someone. And at paragraph 477, the court said a private conversation is one which might reasonably be taken as intended to be confined and listened to by the persons who are a party to the conversation. And it might be private even though it occurs in a public place such as a restaurant or the participants are at liberty to tell others about it later. So in that case, they said that even though the dining room was open to other residents and staff and guests, the evidence was that the parties to that conversation were sitting at their own table and having conversations amongst themselves. And there was some evidence to suggest that they might have attracted attention while they were talking. But that said, the recording didn’t indicate that they were speaking loudly or otherwise in a way that would encourage people to listen. And they said that the presence of other people around the parties to the conversation could have been expected to give rise to general noise that might have made it difficult for the conversation to be heard. So objectively, those circumstances were such that the parties ought not reasonably to have expected that their conversation would have been overheard by others in the room. So, yeah, private conversations are conversations that can happen between a group of people that they don’t expect to have others overheard. And that can happen in a room where nobody else is present or in a place where there are loads of other people present. | |
| DM: | I might add the case of Toth v DPP to that. That’s one I read this week and we’re preparing for this podcast. That concerned a doctor and his patient. And just looking at that at face value, you’d expect that to be a private conversation. | |
| DT: | Or privileged as well. | |
| DM: | Of course, it’s perhaps one of the most sensitive conversations you’re going to have that between a patient and a doctor in the doctor’s rooms. In this case, the patient was covertly, so unknowingly, recording the conversation. And in seeking to have that excluded, it was argued that was not a private conversation because at the time the conversation was capable of being overheard from the reception area. That was rightfully rejected by the court in that instance and consistent with what Helen’s just said. It was said that despite the capability that the conversation may have been overheard by others, the nature of that conversation is certainly a private one. | |
| DT: | I think as with a lot of tests that invite a really factual matrix specific analysis, these sorts of cases give us some guidance on where we might end up, but you can see how much grey there is in any given factual scenario. Because on the one hand, we’ve got the intention of the parties. Is this conversation intended to be confined to the people participating in it? Do we intend to be overheard or do we think we’ll be overheard? And the capacity for being actually overheard and the environment that goes with that. I’m just thinking about the reverse scenario where I might be having a shouting match with a colleague in a glass walled office that is in a private place, my office, but can clearly be both seen and overheard by anyone who’s walking past. Is that now a public conversation about a very private matter that’s taking place in a private place? So you could think of a similar scenario with a backyard or a front porch. It’s a really factual matrix specific question, isn’t it? | |
| HC: | It is. And that’s what a lot of the cases in this sort of area, even with the other aspects that we’ll talk about, it all very much comes down to: what are the facts of the case? | |
| DT: | But we certainly can’t just say; “well, public place, public conversation”. It’s not so simple. Now, the other thing that I really want to delve into so far as listening devices is concerned is this idea of a recording that’s reasonably necessary for the protection of your lawful interests. I’m interested in it because as a civil litigator, it’s one that comes up a lot. There is a line of authority that making a recording because it’s in your interests relating to some litigation that’s on foot or that’s apprehended is a lawful interest for which you can make a recording, at least so far as a conversation between the parties to that litigation is concerned. What are some of the authorities, Helen, around what a lawful interest actually is? | |
| HC: | Yeah. So the courts have held that lawful interests shouldn’t be construed so broadly as to frustrate the purpose of the legislation, is the succinct answer to that. | |
| DT: | It’s not so broad as to mean any interest that isn’t unlawful. | |
| HC: | Exactly. Yeah, that’s right. So in terms of lawful interest, and I think it’s important to note that it’s great to interrogate what is a lawful interest, but we do need to consider it in the totality of that phrase, reasonably necessary to protect lawful interest. But in terms of lawful interest, the case of Sepulveda is a really instructive case in relation to this question. Sepulveda was a case where the accused was basically standing trial for historical sexual offences against, I think it was JD and then JD’s brother BD. They were anonymised, obviously. And the entirety of that phrase was interrogated during the judgment. When looking at lawful interests, they said that the word lawful can mean something that’s just simply permitted or something which can be done without an infraction of the law, or it may mean something that’s supported by the law. So ultimately, they quoted the case of Violi and they said that it seems that lawful interests are to be distinguished from legal interests, so that lawful interests within that meaning are interests which are not unlawful. I don’t know how helpful that is. TIP: Helen just mentioned that the Sepulveda case references another case called Violi. The full citation for that case is Violi v Berrivale Orchards Limited (2000) 99 FCR 580. Violi was a dispute over the admissibility of certain evidence in a breach of contract claim. The applicant relied on conversations recorded without the consent of one party. At [3] Branson J wrote “Mr Violi recorded each of the conversations with the purpose, should he consider it necessary, to publish the conversations, or a record of them, to persons who were not parties to the conversations should [the respondent] later “not tell the truth about what was happening” or should the respondent later deny the existence of a contract between the applicants and the respondent.” Branson J determined that the recording of the two conversations was not reasonably necessary for the protection of Violi’s lawful interests as required by the then Listening Devices Act 1984 (NSW) – the predecessor to the Surveillance Devices Act in NSW. So again, you would think that in situations where a partner who might be suggested to be abusive or something like that, that would be a lawful interest. So then we have to turn to the interrogation of whether it’s reasonably necessary to then record for the purpose of protecting those lawful interests. And so for my part, I think that the lawful interest aspect would probably be made out and what’s more pertinent to the argument is whether it was reasonably necessary. | |
| DT: | That’s a good point. What do the authorities tell us about what’s reasonably necessary? | |
| HC: | There’s a lot. | |
| DM: | Well, there’s a couple of very good authorities when we turn to the question of reasonable necessity for the making of the recording. One really good judgment is that in the Federal Court; Commonwealth DPP and Country Care Group Pty Ltd, that was a cartel conduct case. In that case, there was a Mr Cuddihy and he had a business meeting scheduled with a Mr Hogan. Through their business dealings Mr Cuddihy had came to distrust Mr Hogan. He thought that there was a risk that his words would be misconstrued in future meetings. He thought there was a possibility that if any promises were made by Mr Hogan during the business meeting that he would later renege on those promises. He made the decision then to secretly record the conversation with Mr Hogan and later as part of this criminal case, there was the question of admissibility. And the court found in that case that it was not reasonably necessary for Mr Cuddihy to take those steps to secretly record to protect his lawful interests, although, it’s accepted that his interests were lawful. He certainly wasn’t trying to blackmail Mr Hogan or extort him. It was found that there were other steps which could have been taken. He could insist on the attendance of other persons at the conference. He could take a contemporaneous file note of the conversation. He could, of course, ask Mr Hogan if he consented to their conversation being recorded. And the fact that all those steps, if they were considered were not taken, meant that it was deemed that that’s not admissible evidence. | |
| HC: | I might jump in there too. I mentioned the case of Sepulveda earlier. As I said, it was really instructive on this point as well. So that was the historical sexual assault matter. And sometime later, many years after the sexual assault, one of the complainants recorded a conversation with the accused on a micro cassette recorder. We may have to tell our younger listeners what that might be. | |
| DT: | Yeah, we’ll include a little voice over to explain what a cassette is for our millennial listeners! | |
| HC: | So in that matter, the CCA disagreed with the primary judge. The primary judge found that the recording was reasonably necessary to protect the complainant’s lawful interests. The CCA disagreed. And they essentially held that because there were other options available to the complainant. So the complainant could have gone to police and got the police to make a pretext call. We can talk about what that is as well. And that would have been done legally. So those options were available to the complainant. And so it wasn’t reasonably necessary for that complainant to make the recording. And that can be distinguished from the case of DW v The Queen. That’s a 2014 CCA case. And in that matter, it was a similar sort of thing in that a complainant had secretly recorded a conversation with the accused. The accused was her father. When the recording was made, the complainant was quite young. And the sexual offences were happening at the time and were ongoing. And in that matter, the court held that the recording was reasonably necessary to protect her lawful interests because of her age. She wasn’t aware that there was the option available to go to the police and have the police step in and lawfully record a pretext call. So they did find that her lawful interest was to protect herself from being the victim of these offences and that it was reasonably necessary because she didn’t know about alternatives. | |
| DT: | Talking about some of these cases, there are just so many factors to consider in the factual matrix for when something’s a lawful interest, when something’s going to be reasonably necessary. Are there any authorities that kind of give us a list, even if it’s non-exhaustive, about the sorts of things we should be thinking about when trying to make that determination? | |
| HC: | Yeah, absolutely. There’s a really helpful case on that. It’s Rathswohl v Court. It’s a 2020 New South Wales Supreme Court case. And in the judgment, the four considerations were detailed. And those considerations should be taken into account when considering whether something may be reasonably necessary for the protection of lawful interests. The first one was whether the purpose of the conversation was to obtain admissions in support of a legitimate purpose. There’s a whole bunch of things that you could consider in that particular consideration. Secondly, whether it was important to protect oneself from being accused of fabricating a conversation and recording the conversation was the only practical means of refuting an allegation like that. Thirdly, whether there were other practical means of recording the conversation and we touched on that when I was talking about Sepulveda and the decision there. | |
| DT: | I suppose we’re talking here both about other media by which you could record the conversation, a file mode or something like that. And also a lawful means of audio recording, like going to the police. | |
| HC: | Correct. Exactly. And then finally, the court said whether there’s a serious dispute on foot between the parties, including where determination of the dispute would vitally depend on oral evidence and one person’s word against another. So recordings of conversations just in case there is a dispute or for the sake of making an accurate record of what was said is not enough. So that’s helpful when you’re turning your mind to that. | |
| DT: | Yeah, that’s really the category that you’d be looking at if you’re making a recording for the purposes of some civil litigation. But that dispute really does need to be on foot for that to be a valid reason. | |
| HC: | Yeah, exactly. | |
| DT: | You mentioned something before that I’m not familiar with. What’s a pretext call? | |
| DM: | A pretext call is a telephone call generally made by a complainant in criminal proceedings. Often at the time the call is made, the accused person has not been formally charged. So to talk through the steps which may give rise to a pretext call, someone may approach the police and make an accusation of criminal conduct. Let’s use the example of unlawful sexual conduct. The police might look at the version provided by that complainant and come to the view that they’d be assisted by further evidence prior to making the decision to charge that person. Once that decision is made, they can approach a judge, magistrate, judicial officer for a warrant. And that warrant allows them to install a listening device in the complainant’s phone. The complainant then makes a call to the accused, the person they’ve said has perpetrated an offence against them, and invites them to discuss the incident. So they might say; “I’m feeling really bad about what happened in your house last January. I want to talk about it”. And they invite the person without their knowledge to discuss that particular incident. Often that will lead to admissions that are recorded, and that admissions which are admissible in later criminal proceedings against that person. So that’s a lawful tool that the police have if they’re approached by a legitimate victim to obtain a covert recording. | |
| DT: | Yeah, that’s a good point we should make. So far, we’ve really been talking about the exceptions and defences that apply for a private person making a recording using a listening device. Police obviously have lots of other exceptions that they can rely upon, like a warrant. I think there’s also a specific exception for body-worn camera footage and the audio that might pick up. | |
| DM: | Yeah, that’s right. It does have to be over the body-worn camera footage. So that’s the exception or a limitation that’s set out in section 50A of the Surveillance Devices Act. Body-worn cameras are a piece of police equipment which are now commonly used. There’s other problems with body-worn cameras, which me and Helen could probably occupy another podcast talking about. And one of those main problems is the police officer using it has the power to decide when it’s turned on and when it’s turned off. But when a police officer does decide to turn it on, they need to make sure that any person’s party to that conversation are aware that they’re being recorded. If they fail to do so, they risk that evidence may ultimately be ruled inadmissible in any proceedings taken against the party to that conversation. | |
| HC: | Yeah. There’s also DVECs, which we come across in criminal law. That stands for Domestic Violence Evidence in Chief. And it’s a recording, essentially, rather than take a written statement from complainants, police will do a DVEC. That can sometimes be done on body-worn, sometimes done on their separate MobiPol device. But they always have to ask for the consent of the complainant to participate in the DVEC and that’s just ticking that box. | |
| DT: | Got it. TIP: Helen mentioned a MobiPol device. These are shared smartphones and tablet devices that grant NSW Police Force officers remote access to police systems and databases. The force currently deploys more than four and a half thousand mobile and tablet devices. I suppose the distinction there with the body-worn camera footage from a private person is, although it has to be overt, it doesn’t have to be with consent. You can make the person aware and then a private person might have to stop recording or walk away if the person doesn’t give their consent to the recording. With the police, being aware is enough. Now that you describe what a pretext call is, I didn’t know that’s what it was called, but I have heard them before. I’ve never practiced criminal law. But when I was a baby lawyer or not even, when I was a law student, I had a job as a court reporter in the District Court in the western suburbs. And I did record some historical sexual abuse trials, which involved some of these pretext calls, calls where the complainant would say something like; “I’ve been thinking a lot about what happened when we were children” or something to that effect to prompt that conversation from the offender or from the accused.
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| DM: | They’ve got the potential to be powerful evidence either way. Obviously, the accused person isn’t aware or you’d anticipate that they’re not aware that the conversation’s been recorded. So if they make admissions, they’re generally strong admissions as part of a Crown case. Equally, if in that conversation, which they’re not aware has been recorded, they make a strong denial of the conduct, that’s a powerful denial. So they can go either way, but they’re a good evidence obtaining and truth finding tool that’s used by the police. | |
| DT: | That’s a good point. If in a pretext call someone said, I’m calling to talk about what happened in the pool room at 123 Springfield Street and the accused said; “what are you talking about? There was no pool room at that address”. That’s going to be a credibility issue that the accused’s counsel might rely upon. | |
| HC: | Yeah. Or, “I never lived there. I don’t know what you’re talking about”. | |
| DT: | Yeah, yeah, absolutely. Yes, that’s interesting. Often on the show, I’m asking guests to talk about their stories from practice but I think I mentioned just before we started recording, this issue around reasonably necessary for the protection of your lawful interests came up for me in a civil matter. Once I was acting for a commercial party to a dispute between two corporations. There was no litigation on foot yet. But the parties are both engaged solicitors who were, as we say, dispute resolution experts. They’ve been corresponding with one another about a set of defined issues. And one of the employees of my client had met with one of the directors of the other party to discuss some of those issues. And he had made a recording of that conversation. There were some very helpful admissions made by the other side in that conversation. And the question was, well, was it enough that the litigation was apprehended at the time that the parties were in dispute, if not yet a dispute that had become litigation to enliven a kind of lawful interest to protect their through a recording? Because you can imagine in that situation that you’re not likely to have a frank conversation with another litigant if they know that they’re being recorded. So it was a tricky one for us, not only legally, but ethically, because the employee of our client, of course, is the one who would be guilty of an offence potentially punishable by up to five years in prison. Do you want to take advantage of that person’s conduct where they’re potentially being exposed to an offence, not your own client? Fortunately, we didn’t have to make that decision. The matter settled – as almost all civil litigation does. But it was certainly an interesting one. And I think it highlights how often this issue can come up and how often interactions with the surveillance devices that can come up in civil matters where we do have recording devices on us constantly. And people in business, litigants, are often wondering whether they should be using these tools for their benefit.
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| HC: | Absolutely. And your story actually raises a really interesting point that Damien and I have both come across in practice that when these recordings are being made, and you know, it could be said that they’ve made this recording unlawfully, the section 128 certificate is a very powerful tool in determining whether or not it was unlawful and then moving through the steps after that. That’s something that we’ve both seen in practice. I think you had a matter that had to get adjourned for something like that, didn’t you, Damien? | |
| DM: | Yeah, I’ve got a pretty good example which kind of touches on the surveillance device aspect as well as what we’ve just been discussing being 128 of the Evidence Act and the certificate that can be issued under that provision. TIP: Just quickly, before Damien talks about this case, let’s explain what a section 128 certificate is. A section 128 certificate is issued under the Evidence Act – in this particular context, the NSW version. The provision allows a witness in a proceeding to object to giving evidence that may incriminate them in respect of other proceedings. Where a certificate is triggered by the process set out in section 128, a witness is protected from the evidence given being used against them. I was acting for a woman who had been accused of physical domestic violence against her husband. It happened in the context of a very difficult family breakup. Both persons had previously made complaints to the police about the conduct of one another. In this case, on one occasion, the police decided to charge the wife and the husband was the complainant. During the course of cross-examining the complainant, the husband, he was asked about this practice of recording his wife. It was known because it was disclosed as part of the brief of evidence that he’d recorded the physical altercation which ultimately gave rise to the offence in this case. It was maybe only 30 seconds long. It had some yelling. It had the sounds which you’d associate with a fracas, whatever it happens to be. He was asked why he was recording and he disclosed; “I always secretly record my wife. I secretly record my kids and I’ve been doing so for months”. At that point, the magistrate sensibly said, I think this witness needs to get some advice, some legal advice. The matter was adjourned for him to get advice with a view that he’d come back with the protection of a 128 certificate to stop him incriminating himself if he continued to give evidence on that topic. Ultimately, in that case, some representation, some request was made to the prosecution. It was identified that section 7 of the Surveillance Devices Act is a very serious offence. In that case, it was more serious than the offence of common assault which had been prosecuted. I think they made the sensible decision and decided to withdraw the prosecution against the wife. There’s a bit of an interplay there between the two. | |
| DT: | Yeah, that is interesting. How does that work where – this is slightly off the topic of today’s episode – but an interesting one to relate back to our previous conversation on the show. The cat’s sort of out of the bag there, isn’t it? Once he’s given that answer, can you get a certificate against self-incrimination once you’ve given that answer already? Or do you have to seek the certificate before you’ve given the incriminating answer? | |
| DM: | The magistrate, I understand, does have the power in those circumstances to extend a certificate which would effectively retrospectively cover that particular answer. We didn’t get to that point in this instance. He hasn’t got a certificate. The cat is, as you say, out of the bag. Another thing we want to discuss, if you’re happy to listen to us, is the fact that these offences are very rarely prosecuted by the New South Wales Police. | |
| DT: | That surprised me as we were talking about this before we started recording how little data there is on these offences because, just anecdotally, and it stands to reason with the availability of these devices, that they should happen all the time but there’s so little data. | |
| HC: | Right. I did a little nerd out this morning. One of my favourite things to do is create tables. So I went into the JIRS stats for all of the relevant offences and created a table. And as it transpires, I think in terms of the section 7 offences that we’ve been talking about, there are two. So there’s an offence to record a conversation that you’re not a party to. Only seven cases were reported as having gone to sentence in respect of that offence. And then the one we’ve mainly been talking about is recording a private conversation that you’re a party to without consent. Only three cases have been recorded. Of those three, two people received a fine and one person received a Community Corrections Order. Both of those sentences involve a conviction but no jail time. There’s also an offence under section 11 of the Act which makes it an offence to publish the conversation that was illegally obtained by a surveillance device. Only one matter was reported in the JIRS statistics. That person received a Community Corrections Order. And then there’s an offence under section 12 of possessing a recorded private conversation and there are zero sentences recorded in the JIRS statistics for that particular offence. I wonder if the 128 certificate is doing some work there potentially. | |
| DM: | But it is interesting the kind of number of cases we’ve looked at where different parties are seeking the exclusion of secret recordings in essence and whether it’s admissible or not. And one of the reasons it’s not admissible is because it’s unlawful. But very few people are getting prosecuted for that type of conduct. | |
| HC: | Yeah. We were talking also just before we started about obviously we know that the coercive control laws will be coming in next year. I anticipate that some of the facts that will go towards a charge of coercive control will be things like tracking your partner or the Find My Phone app. | |
| DM: | Yeah. The world’s catching up. It’s just very sinister conduct which is often part of an abusive relationship includes the tracking of a partner, the recording of a partner without their consent. Hopefully the new offence provision, the coercive control provision will result in greater awareness and education around those issues. But as it stands, there are already offence provisions which do address that type of conduct. | |
| DT: | So we might see that when those offences become available to be charged that maybe conduct that would rise to the level of an offence under the Surveillance Devices Act is going to be prosecuted but perhaps won’t show up in the statistics as that offence. | |
| HC: | Yeah. Quite possibly. It will be interesting to see whether it just forms the basis for the charge of coercive control or if then discrete charges are laid against the Surveillance Devices Act. I just don’t know. It will be interesting to see how it plays out. That kind of raises the tracking device issue. That’s also covered in the Surveillance Devices Act. | |
| DM: | Yeah. So obviously we have air tags and all types of GPS trackers which are currently commercially available. They’re not limited anymore to law enforcement and you’ve raised, David, that on a phone you kind of have Find My Phone and all these types of applications that can be used. I guess the takeaway is that if you’re going to be using those types of devices, if you’re not using them with the consent of the person who is being tracked, there’s a risk you’d fall foul of the offence provision in the Surveillance Devices Act – tracking device being a surveillance device. | |
| DT: | Tell us a little bit more about what that offence looks like. So we’ve talked a bit about what a listening device is, what an optical recording device is. What is a tracking device and what is the offence that you’d be guilty of there? | |
| HC: | So a tracking device is any electronic device that’s capable of being used to find someone or monitor their geographical location of a person or an object. We actually have a matter at the moment where police have lawfully gone in and obtained a warrant to put a tracking device in a car but in the private sphere, I suppose. If someone was to get a tracking device and put it in their partner’s handbag or wallet or something and keep a tab on them, that would constitute an offence. I’ve never seen a tracking device but Damien tells me that they’re very small and like 20 cent piece size or something like that. | |
| DM: | Yeah, you can now slide a tracking device inside your wallet in case like me, you’re always losing it to help guard against that. You can put it around the collar, around your dog’s collar. In case your dog ever goes missing. So plenty of lawful uses. I’m not sure you have to get the consent of the dog. But if you’re a jealous husband, he slips it inside your wife’s car or handbag. That’s a very different story. | |
| HC: | Very different story. | |
| DT: | The Find My App on an iPhone, and I’m sure there’s an equivalent on other operating systems, is a really interesting example to me because it’s not itself a device that the perpetrator is using to track the person. I suppose there is a device involved but it’s not one that they’ve installed and it’s not one that the complainant there would really choose to go without. We all willingly carry our phones everywhere. It’s a software tracking device in a way. Does the offence work just as well for that kind of behaviour? | |
| DM: | Well, the definition under the Act does include a device used to determine the geographical location of a person or an object. In that case, I take it the object would be the phone of another. So I think the definition is broad enough, although I have to admit I haven’t seen a prosecution mounted on the basis of the facts you’ve described. | |
| DT: | And again, it may be something that forms a coercive control behaviour, the subject of a very different offence. It doesn’t surprise me that there are no recorded sentences for the possession of a recording, right? Because it is an exception or a defence to be made out to the original offence of making the recording if you don’t intend to publish it, right? So having never published it to anyone, it’s hard to imagine that anyone has discovered you’re in possession of it. | |
| HC: | True. | |
| DM: | Circular. | |
| DT: | Yeah. And if you don’t publish it, you could always plausibly argue that you never intended to publish it and therefore it’s not unlawful to possess it. You’re only really guilty of that offence and not any other. If you’ve made the recording, have some probative evidence of your intention to publish it at a future time, but it’s discovered before you do so. It’s an interesting one. And I guess it really strikes me that this is an offence that, as you say, is a serious one, both in moral terms and in the way we commonly understand a serious, indictable offence. It’s punishable by five years in prison. But it is a behaviour that I think a lot of people in society engage in who would not regard themselves as criminals and who would not regard it as especially serious behaviour in the circumstances in which they do it. | |
| HC: | Yeah, absolutely. | |
| DM: | Well, circling back to the objects of the Act, there’s very few pieces of legislation in New South Wales and Australia which really place weight on the privacy of individuals. And this is one which doesn’t just place weight upon that right to privacy in certain circumstances, but it also criminalises people who breach that privacy through use of certain devices. So it is a difficult one, given the proliferation of surveillance devices, modern technology, common practice. | |
| HC: | Raises all sorts of questions. It probably raises more questions than it answers. | |
| DM: | We don’t have them all. | |
| HC: | No, not yet. | |
| DT: | Yes, well, it does raise more questions than answers. But I suppose that’s the nice thing about the law. It does keep us in a job, doesn’t it? And before we finish, I should make it clear for listeners that Helen and Damien did consent to the recording being made today. Please don’t charge me with an offence. Helen and Damien, thank you so much for joining me again on Hearsay. | |
| HC: | Thanks so much for having us. | |
| DM: | Thanks so much. So good to be here. | |
| RD | As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank today’s guests, Helen and Damien, for being a part of it. As you well know, if you’re an Australian legal practitioner, you can claim one Continuing Professional Development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest this episode entitles you to claim a substantive law unit. More information on claiming and tracking your points on Hearsay can be found on our website. Hearsay the Legal Podcast is, as always, brought to you by Lext Australia, a legal innovation company that makes the law easier to access and easier to practice, and that includes your CPD. Hearsay is recorded on the lands of the Gadigal People of the Eora nation and we would like to pay our respects to elders past and present. Thanks for listening and see you all on the next episode of Hearsay! |
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