James v James (No. 2) [2020] NSWDC 796

District Court New South Wales

Medium Neutral Citation: James v James (No. 2) [2020] NSWDC 796 Hearing dates: 12-13, 16 November 2020 Date of orders: 13 November 2020 Decision date: 13 November 2020 Jurisdiction: Civil Before: Neilson DCJ Decision: Recording admitted into evidence under s 138(3) of the Evidence Act 1995 Catchwords: Evidence – Audio recording of the interaction of the plaintiff and the defendant two and a half years previously – Whether it was reasonably necessary for the plaintiff to make the recording for the protection of her lawful interests – Reason identified in evidence was not a "lawful interest" in accordance with the authorities – Evidence was obtained in contravention of an Australian law – In exercise of court's discretion under Evidence Act 1995 s 138(3), evidence admitted. Legislation Cited: Evidence Act 1995 Surveillance Devices Act 2007 Cases Cited: Corby v Corby [2015] FCCA 1099 DW v R [2014] NSWCCA 28 Category: Procedural and other rulings Parties: Plaintiff – Shannon James Defendant – Shaun James Representation: Plaintiff: W. Priestley (Counsel) J. Hill (Randall Lawyers)

Defendant: In person – unrepresented File Number(s): 2020/00184759 Publication restriction: Nil.

Judgment 1. HIS HONOUR: This is an application to tender recordings of the interaction between the plaintiff and the defendant on 20 February 2018 at the then matrimonial home in Clunes. The interaction was recorded by the plaintiff on her mobile phone. It is a recording of a private conversation between the plaintiff and the defendant. The recording was not made with the defendant's consent. Section 7(1) of the Surveillance Devices Act 2007 provides this: "A person must not knowingly install, use or cause to be used or maintain a listening device-- (a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or (b) to record a private conversation to which the person is a party." 1. The plaintiff submits that notwithstanding the general prohibition on the admission of the recorded material the admission is justified pursuant to sub(3) par (b). That provision is this: "(3) Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if-- ……………… (b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation-- (i) is reasonably necessary for the protection of the lawful interests of that principal party." 1. The plaintiff submits that she consents to the recorded material being tendered and that it is reasonably necessary for the protection of her "lawful interest". There is learning about the meaning of the words "lawful interest". Mr Priestley of counsel referred me to the decision of the Federal Circuit Court of Australia in Corby v Corby [2015] FCCA 1099, a decision of Sexton FCCJ. That decision is not binding on me but does collect a number of other decisions. More important is the decision of the Court of Criminal Appeal in DW v R [2014] NSWCCA 28. In essence the decision of Ward JA with whom Harrison and RA Hulme JJ concurred. Commencing at [27] his Honour considered the then available case law as to the meaning of "lawful interest". I have carefully read both the decisions to which I referred and the cases which they consider. 2. The words "lawful interest" do not extend to any interest which is not illicit. Here the interest of the plaintiff was not to protect herself from apprehended violence but to record the verbal abuse being delivered to her by her now former husband, the defendant, in order that, after his tirade of abuse was over, she could at some convenient time replay it so that he would understand the extent of his abuse and the effect it was having on the plaintiff, in order for the plaintiff to encourage the defendant to consider how he addressed her in the future. The authorities as to the meaning of "lawful interest" do not go that far at all. I am not persuaded on the balance of probabilities that the current recording falls within the exception provided by s 7(3)(b)(i) of the Surveillance Devices Act 2007. 3. That invokes the provisions of s 138 of the Evidence Act 1995. Section 138(1) provides that evidence that was obtained in contravention of an Australian law must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in an unlawful manner. Section 138(3) provides this: "(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." 1. Here there has been a criminal prosecution of the defendant which has been completed. Here there were proceedings between the parties in the Federal Circuit Court of Australia concerning the adjustment of property rights after their divorce. This is a civil action for damages in the tort of trespass. Liability is not in issue. The plaintiff has obtained a default judgment and the defendant's application to set aside the default judgment has not been successful. As the rules of Court operate every allegation of fact contained in the statement of claim referrable to the causes of action pleaded has been admitted. It is therefore unnecessary for the recorded evidence to be played to establish any fact in issue. 2. However, the evidence has been listened to by Dr Peter Klug, a forensic psychiatrist who examined the plaintiff for nearly two hours via Skype on 28 July 2020. The recording was played to Dr Klug who said this: "I have listened to much of these recordings, which are profoundly distressing and are clear evidence of the nature of the domestic violence to which Ms James was subjected." Of course that is the doctor's ipse dixit and it is necessary for the Court to know whether there is substance in his description of the recordings as indicating "profound distress" to a reasonable person which includes of course the Court. The recording can only go to the quantum of the plaintiff's damages. If the recording is not "profoundly distressing" it would indicate that the damages ought be less. If however it is profoundly distressing it might indicate that the quantum of damages should be larger. It is directly relevant to the quantum of the plaintiff's case and this is only an assessment of damages. 1. Bearing in mind other considerations in s 138(3) I propose to admit the evidence. It does have probative value of the extent of the plaintiff's damages. It is important because obviously a conversation, an argument that was heated, some two and a half years or more ago, would not be firmly fixed in a person's memory and it will assist the Court in determining the damages which are to be assessed. It is therefore important within the meaning of subsection 3(b). I have already discussed the nature of the relevant cause of action. 2. The impropriety of the contravention was not great and most people know these days that phones can be used to record conversations. The phone was in the open, on the voir dire evidence, on a table between two computers in the family home. If the defendant looked for it he could have seen it. It was not as if the phone had been secreted on the plaintiff's person or, for example, taped surreptitiously underneath a table top so that it could not be seen and the recording was not able to be readily perceived by somebody who was on the "lookout" for a mobile phone. It is true that the recording was deliberate but in my view that is only one of the things that needs to be considered. Bearing in mind my discretion, I admit the recording under s 138(3).