Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd (Ruling No 5) [2020] FCA 1825

Federal Court of Australia

Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd (Ruling No 5) [2020] FCA 1825 File number: VID 224 of 2019

Ruling of: BROMWICH J

Date of ruling: 27 November 2020

Catchwords: EVIDENCE – where recording of business meeting made allegedly in breach of s 7 of Surveillance Devices Act 2007 (NSW) – whether exception or defence in s 7(3)(b)(i) of Act applied to recording – meaning of "necessary for the protection of the lawful interests" of a party – where other means were available to record the substance of the meeting to protect the lawful interests relied upon – held: exception or defence not made out EVIDENCE – discretion to admit illegally obtained evidence pursuant to s 138 of the Evidence Act 1995 (Cth) – consideration of mandatory factors – probative value high and importance to case substantial – significant public interest in the conduct detailed in evidence illegally obtained – where breach was deliberate – illegal recording being a serious offence but where breach was not in the higher range of seriousness – where recording could not have been obtained except by illegal means – desirability of admitting evidence outweighs negative factors – held: evidence admitted in the exercise of discretion

Legislation: Evidence Act 1995 (Cth) ss 32, 138 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 17 Listening Devices Act 1984 (NSW) ss 5, 13 Surveillance Devices Act 2007 (NSW) ss 7, 11, 12