Local Court of New South Wales CITATION: DPP v Marion Rose Le [2003] NSWLC 8 JURISDICTION: Criminal PARTIES: Director of Public Prosecutions Marion Rose Le (Defendant) FILE NUMBER: 20042662/01/2; 2042673/01/2 PLACE OF HEARING: Downing Centre Local Court Sydney DATE OF DECISION: 03/01/2002 MAGISTRATE: Magistrate P S Cloran CATCHWORDS: Crimes - Listening Devices LEGISLATION CITED: Listening Devices Act 1984 Barbaro v DPP (1999) NSWSC Steiner Wilson & Webster Pty Ltd (t/a Abbey Bridal) v Amalgamated Television Services Pty Ltd (2000) Aust Torts Reports 81-537 CASES CITED: R v Zubrecky (unrep 22/2/91 NSW Dist Ct Graham J) R v Giaccio (1997) 93 A Crim R 462 Karageoorge (unrep 18/11/98 NSWSC Hidden J) R v Murphy (1985) 4 NSWLR 42 REPRESENTATION: Ms Daleo for DPP Mr Byrne SC for Defendant ORDERS: Offences Proved. Reasons for Decision 1 The defendant is charged with 2 offences pursuant to s. 5(1)(b) of the Listening Devices Act that she did use a listening device to record a private conversation to which she was a party on 21st and 22nd February, 1999. 2 The offences are being dealt with summarily and both matters are being heard together. It is appropriate at this stage to set out in full the relevant terms of section 5. (1) A person shall not use, or cause to be used, a listening device: (b) to record a private conversation to which the person is a party. (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: (i) the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party, or 3 Although the content of the evidence must be described as extraordinary, it is not difficult and largely not in dispute. It is alleged that in April, 1998, the defendant and one Albert X had been good friends for some time. It appears that Mr. X had been in politics in the Cabramatta area in the early nineties and knew the murdered NSW politician John Newman. The defendant is an Immigration Consultant and worked with the Vietnamese communities for many years. She was also a friend of Phung Ngo a person who was charged and subsequently convicted in connection with the murder of John Newman. There was evidence before the court that she was instrumental in securing proposed sureties for Ngo in bail applications before the Supreme Court and also visited him numerous times in gaol, and, according to Mr. Nicholl, a witness called in her case, she was also convinced of the innocence of Mr. Ngo. 4 The evidence is that the defendant and Mr. X had, at the defendant's request, been attending the inquest into the death of Mr. Newman which ran over a number of weeks. About this time, the defendant alleges that Mr. X confessed to her that he had shot John Newman. He is alleged to have said "I am telling you there was only one person who committed that crime … He put my son away for a long time and he deserved it, I told him I'd kill him and I killed him." He is alleged to have said at that time "Marion (the defendant), I'm telling you this once, I will never say it again, I will never open my mouth and repeat what I'm telling you now, you will never be able to use it against me because it will be your word against mine and they're not going to believe you but I need you to know the truth." 5 It was not until ten months after the alleged disclosure that the recordings leading to these charges took place. In co-operation with a friend who works for Channel 9, listening device equipment was installed in a vehicle that was to be used by the defendant at the time of the alleged offences. It seems in fact that there were at least three devices in place, a camera in the back of the vehicle, one in the front dashboard area of the vehicle and there was a portable microphone used by the defendant when she and Mr. X were out of the car. At the end of the prosecution case, the DPP particularised each offence by relying on the portable listening device which was carried by the defendant when she was away from the motor vehicle as the device the subject of these proceedings. 6 During the hearing, parts of each tape were played in court (Exhibits 1 to 3), as well as another tape which showed the conversation that took place between the defendant and the person from Channel 9 in setting up the devices (Exhibit 5). The evidence clearly shows that the defendant taking part in the sound tests, the whereabouts of the various devices and in particular the portable device. 7 Mr X gave evidence and it was established by his evidence that he did not consent to the recordings that took place, nor did he have any knowledge of them. I accept his evidence in this regard. Mr. X was cross examined about what he did say to Ms. Le in April 1988 and when the recordings were made. He said that he and Ms. Le were heavy drinkers, that he used to fantasise about John Newman, adding the word "fantasies" was a poor choice of word. He denied ever saying that he did murder John Newman. I think it should be said that on 21st and 22nd February, when confronted with what is alleged that he had previously said he appeared to be trying to avoid the topic. He said that at the time of the recording he was suffering from sleep deprivation and had no idea of what was being said. I can only say that this part of the evidence of Mr. X was not very plausible. He appeared to be trying to have the court accept that in relation to anything he said he was not conscious of what he was saying or of what was being said. The last recording attributed to the defendant on page 38 of Exhibit 1 being the transcript of Tape 1 on 21st February, 1999(as amended by the agreement between the parties) reads, "What do you expect me to do. You tell me you shoot (or shot) John Newman and then you tell me I've got to solve it. …" Mr. X's response is "I didn't say that, I said that without you that - that he'll go under and I truly believe that." In Exhibit 3 on page 31 the second last recording attributed to the defendant in the last sentence states "You tell me you killed Newman and then just leave me with it". Mr. X's response shows him as saying "Do you want another beer do you want to go for a walk? 8 Listening to the recording of the tape of that conversation indicates that there was a significant pause between the defendant's assertion and the response of Mr. X. The last recording of the defendant on page 36 of Exhibit 3 shows the following "So you shot him and then you went home…." Mr. X replied "No, no, no.. ML ..where did you go after you shot him? AR .. I was pissed, I was pissed ML So what did you do? AR I was pissed, I told you I had, I went, oh" 9 I am of the view that it is necessary to quote those sections as they appear to be some of the more significant parts of the transcripts, which total some 162 pages, so far as any alleged admissions by X are concerned. It is not that they are relevant for determining whether Mr. X did have any part in the murder of John Newman but as to what conversations may have taken place between the defendant and X previously. Whilst I am satisfied that something was said by X that related to the death of Mr. Newman, I am not satisfied that it was in the terms and circumstances as outlined by the defendant. There appears to be no reason why Mr. X would suspect that there were listening devices in the car and with the defendant. His responses to the statements of the defendant that I have outlined above which in essence challenge Mr. X to acknowledge what he said previously, fall a long way short of that direct acknowledgment. 10 As I said, I cannot come to any other conclusion than that X did not know that he was being recorded on 21st and 22nd February, 1999 and, that being so, his evasiveness about any admission that he made to the defendant about his involvement in the death of John Newman is all the more relevant. The most inculpatory part of the transcript in my view being the last quotation I have noted where X said "I was pissed" and at best that can only be said to be equivocal. 11 The conclusions that I have reached as to what was said by Mr. X to the defendant are relevant, in my view, to the defence raised by the defendant pursuant to s.5(3)(b)(i) ie was the recording reasonably necessary for the protection of the lawful interests of that principal party, Detective Superintendent Naguib Kaldas gave evidence that he was involved in the investigations into the death of John Newman. He gave evidence of coming to know the defendant from her frequent attendance at the Inquest into Mr. Newman's death. He knew that she had written to the Coroner seeking to appear on behalf of Asian Communities. Mr. Kaldas conducted a record of interview with Mr. X and was of the view that whilst at first he may have conceded that he said something to the defendant about being involved in the death of John Newman, by the end of the interview he was quite firm that he had not said anything to her. The Defence Case 12 After I held that there was a prima face case against the defendant, Mr. Byrne SC opened the defence case with the following: 13 The evidence that will be called principally from Marion Le will be with a view to establish that she had been told by Mr Rance that he was involved in the murder of John Newman, that she had also been told by him that if she were ever to raise that issue publicly, if she were to tell anyone else about it then nobody would believe her, that it would in effect be his word against hers. 14 In those circumstances there were a number of grounds on which it will be contended it was reasonably necessary for the protection of the lawful interests for Marion Le to record conversations that she had with Mr Rance. Very shortly, it is submitted three bases on which it was reasonably necessary. The first is to protect her credibility generally in the event that the truth of what she was (sic) were challenged. 15 The second is that if she were ever to have to give any evidence in a Court proceeding about the matter which was at least a potential outcome of disclosing it to others or to disclosing it generally, then the fact of the record would support her credibility in those circumstances in those proceedings. 16 But the third matter is that it might be seen reasonably necessary to have that material in order to protect herself against the possibility that she herself may be exposed to being charged with making false accusations against other people about matters of considerable seriousness. Those are the three essential grounds on which it is contended that the so-called defence under s 5 of the Listening Devices Act on the balance of probability has been established. The defendant gave evidence of participating in a record of interview with Superintendent Kaldas and she confirmed that the answers she gave in that record of interview were correct. From the record of interview, I think it is clear to say that the relationship between the defendant and X was quite peculiar. The defendant told of being quite scared of X Q. 101 to 109. She said that she felt that if she went to the police with the information she had they would not believe her. She also believed that if she made an allegation X would have "charged her with defamation". 17 In cross examination the defendant stated that when X told her he was responsible for John Newman's death she was not convinced of anyone's guilt or innocence. The defendant said that she told her best friend of X's confession to her about a month after it was made in April, 1998 and also spoke to a retired magistrate in Canberra Mr. Nicholl about the matter after that. The defendant stated in evidence that it did not occur to her to try to record what X said to her until an incident one evening in Cabramatta where X was behaving in a violent manner. The defendant further stated that her motivation for the recording was to ensure that she had a believable record that X confessed to her that he killed John Newman. She conceded that she was, by her actions, collecting evidence. She said in evidence that she was amazed by the technology used by the persons who fitted the devices to the vehicle. 18 The record of interview conducted by Superintendent Kaldas with the defendant Exhibit 7, showed remarkable care and attention to the rights of the defendant particularly in questions 277 to 280. It is interesting to note that in the Record of Interview taken less than a month after the alleged offences, the defendant said at Q. 346 to 348 that she did not know whether X killed John Newman but she "went through and tried to find out". When asked how the police were treating her at the time, the defendant said to Ms. Daleo from the DPP, the same way you are, like a criminal. 19 In evidence before the court on 30th January, the defendant said that she was aware of the fact that Mr. X could be extraordinarily violent. She said she was concerned if she went to the police without corroboration Mr. X would deny it and perceive her allegations against him as being a betrayal of trust and come after her. In evidence of 4th December the defendant said in cross examination in answer to the question "Isn't it the case that you didn't do this until February 1999 because if Mr. Ngo had not been committed for trial you would have seen no need for it? A. It actually had very little, you probably won't believe me but, it had very little if anything to do with Mr Ngo. It had to do with me and what Albert X told me. Really very little to do with Mr Ngo. Q. Well actually what I want to suggest to you Miss Le, and yes, by all means, you can disagree with me is that the reason you wanted to record this conversation was because you wanted Mr Ngo acquitted? A. Well of course, if a person is not guilty one would want to see them acquitted. The reality was, whether or not I would be believed that Albert X had had a conversation with me where he admitted to killing John Newman and he did have that conversation but I had no proof …. Further at page 53 the following question and answer appears Q. There was nothing to suggest that you would be dismissed out of hand by the police? A. The point of the recording was to prove or the attempt of the recording was to prove that there was a person who had confessed to me that he had murdered John Newman, that he had confessed that to me before the recordings took place, and the object of that was to be able to say - Look, here is this person who has confessed this to me, not once but has spoken to me about it subsequently many times and you need to, you know, properly investigate that. Further at page 55. Q. You chose to participate in a recorded conversation with Mr X about his alleged confession, correct? A. Yes. Q. Instead of going to the police with that information, correct? A. No, I chose to do that so that I could go to the police with that information. Q. But you would agree with me whether you chose one option or another that at the time he told you you had the option of going to police but you didn't exercise that option? A. That's correct. Q. And you chose to participate in a recorded conversation with Mr X with the assistance of Channel 9, correct? A. Yes. Q. Instead of with the assistance of police? A. It wasn't a case of either/or. Q. Well, with all due respect, it was open to you, was it not? A. My motivation at that stage was to ensure that I had a record, a believable record, that in the past Albert X had confessed to me in great detail that he had killed John Newman. 20 It is clear from these questions and answers what the defendant's motives were in doing what she did at the time the listening devices were operating. 21 Of further significance in my view, is the fact that the defendant conducted an interview with Channel 9 about the confession before the taping took place. 22 Ms. Vaughan has been a long time friend of the defendant. She says that the defendant told her of Mr. X's confession in May of 1998. She said the defendant was very concerned about what to do with the information. She said that the defendant felt that she could not trust the police. 23 Mr. Warren Nicholl, a friend of the defendant of long standing and a former magistrate in the ACT gave evidence and indicated that he had several conversations with the defendant about the alleged confession. He said that the defendant was firmly convinced of the innocence of Phung Ngo. He said she was also concerned that if she said anything to the police X would deny that anything was said The Law 24 At the commencement of the case Mr. Byrne SC for the defendant did not challenge that the conversations alleged to have occurred did take place and that the recordings came into being. 25 At the close of the case for the prosecution it was submitted that there was no evidence that the item on or about the person of the defendant was a Listening Device. 26 If it was a listening device there was no evidence that it was "used" in the necessary sense. If it was a listening device and it was used in the necessary sense, it was not used to record the conversation. I dealt with those matters at that time and held there was a prima facie case. In relation to the first submission the defendant's answer to Q. 280 in the record of interview and her evidence in court suggest that there was no doubt that she had a microphone in or on her jacket. There was reference to that jacket and the device in the preliminary video tape which was played in court, exhibit 5. Courts do not operate in a vacuum and leave all common sense outside. The only inference that could be drawn is that the defendant was carrying a microphone that was being used to capture the conversation between the defendant and X for the purpose of recording same. For equipment to be "capable of being used to record" a private conversation, it needs to "hear" or "pick up the sound of" the conversation (such as by microphone) and to retain what it has heard (such as by a tape). The equipment typically is a composite of two parts, namely microphone plus tape, which may be physically attached to each other or separated: Miller v TCN Channel Nine (1988) 36 A Crim R 92 at 95. 27 Mr. Byrne SC relied on Barbaro v. DPP (1999) NSWSC 1338 per O'Keefe J) at page 13 where it was held that the mere carrying of the device did not constitute use of it. From the evidence it is clear that the defendant actively participated in the setting up of the equipment by conducting sound checks and making appropriate preparations. In my view, she was certainly more than a mere carrier. 28 A person may form a common purpose with another person (for example, a television station) to record or listen to a conversation such that the other person (in this case the television company) is taken to have used a listening device to listen to the conversation for that purpose: Steiner Wilson & Webster Pty Ltd (t/a Abbey Bridal) v Amalgamated Television Services Pty Ltd [2000] Aust Torts Reports ¶81–537 at p 63,352 [321]. 29 It has been held that placing a bag containing a listening device in a motel room, shortly to be occupied by the target persons, and activating the tape recorder, so that nothing further needed to be done in order to capture the conversation constituted the "use" of the device to record a private conversation: R v Zubrecky (unrep, 22/2/91, NSW Dist Ct, per Graham J) at p 12. In that case, the officer who placed the listening device in the room was not the officer authorised by the warrant to record the conversation, and therefore, the taping was held to be in contravention of s 5 of the Act. However, the South Australian Court of Criminal Appeal held, in R v Giaccio (1997) 93 A Crim R 462 at 472–473, that it is a question of mixed fact and law in every case whether a person's involvement is such that the person can be said to be "using" recording equipment. A practical view should be taken of what amounts to "use". "Use" can be by means of an agent or assistant. 30 Where one person carries the microphone and another operates the tape recorder, each of them is "using" a listening device. Carrying the microphone is not merely an act facilitating the use of a listening device by another, but constitutes a "use" by the carrier of the device: Miller at 105. "Lawful interests": s 5(3)(b)(i) In the decision of R. v.Zubrecky Graham J. (unrep) 22.2.1991. "The legislation was clearly introduced to establish safeguards against an unjustified invasion of privacy that could be occasioned by the use of electronic surveillance". 31 No definition is provided in the Act of the concept of lawful interests… The concept is quite clearly of broad import and is to be distinguished from a more restrictive concept such as legal right and from concepts of legal duty and the like. In terms of legal concepts, a lawful interest must be regarded as one of the broadest categories of interest recognised by the law. It is clearly broader, for example, than a lawful duty and is apt to encompass a wide variety of circumstances. …the test is an objective test. The test is not what the individual regards as being reasonably necessary, although it may be that evidence is admissible to establish what necessity the individual thought there was for the taping. However, the test is, ultimately, an objective test as to whether the taping was necessary and the necessity is a particular kind of necessity, that is, "reasonable necessity". The Act does not require absolute necessity, merely reasonable necessity. 32 It has been held that "lawful interests" relevantly protected under the exception in 5(3)(b)(i) include the entitlement of an employee to proper remuneration for services performed prior to an injury and entitlement to compensation under the Workers Compensation Act 1987 (NSW). Protection in this context refers to "defence from harm, danger and evil": Udini v Aldo t/a Fine Line Joinery Pty Ltd (1998) 16 NSWCCR 418 at para 19. See also T v Medical Board (SA) (1992) 58 SASR 382; R v Smith (1994) 75 A Crim R 327; Public Trustee v Alvaro (1995) 182 LSJS 383; [1995] SASC 5183. 33 "Lawful interests" are to be distinguished from "legal interests" (in the sense of a legal right, title, duty or liability). Rather they are interests that are not unlawful, similar to "legitimate interests" or "interests conforming to law". "Lawful interests" were also considered likely to include the recording of a conversation intended by the parties involved to result in an oral contract or the recording by one party of a threatening telephone conversation or of a conversation forming part of a blackmail attempt: Violi v Berrivale Orchards Ltd [2000] FCA 797 at paras 28 and 32. 34 A recording made by a party to a conversation subsequent to a belief that he might be being set up in relation to criminal proceedings pending against him was made to protect his "lawful interests": Karageorge (unrep, 18/11/1998, NSW Sup Ct, per Hidden J). Recording a conversation with one parent for the purpose of attempting to restore family peace and harmony by clearing up misconceptions or unjustified allegations against the other parent was held to be in the protection of a son's lawful interests: Public Trustee v Alvaro. Reasonably Necessary 35 The test of whether something was reasonably necessary for the protection of lawful interests is an objective one: Zubrecky at 15–16; Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 465 at para 14; Violi at para 18. 36 Both reasonable necessity for the protection, and the lawful interests themselves, must exist at the time of the recording and not at some later time: Marsden at para 18; and on appeal Amalgamated Television Services Pty Ltd v Marsden [2000] NSWCA 167 at para 21. 37 In this matter the conversation was not recorded until ten months after the alleged confession. Mr. Byrne SC submitted that the court should note section 13 of the Act which is in the following terms: 13. Inadmissibility of evidence of private conversations when unlawfully obtained (1) Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device in contravention of section 5: (a) evidence of the conversation, and (b) evidence obtained as a direct consequence of the conversation so coming to the knowledge of that person, may not be given by that person in any civil or criminal proceedings (including proceedings for or in connection with the grant of bail). (2) Subsection (1) does not render any evidence inadmissible: (a) if all of the principal parties to the private conversation concerned consent to the evidence being given, (b) if the private conversation concerned comes to the knowledge of the person called to give the evidence otherwise than in the manner referred to in that subsection, notwithstanding that the person also obtained knowledge of the conversation in such a manner, (c) in proceedings for an offence against this Act or the regulations, or (d) in proceedings for: (i) an offence punishable by imprisonment for life or for 20 years or more, or (ii) a serious narcotics offence, (or in proceedings for or in connection with the grant of bail in any such proceedings) if the court considers that the evidence should be admissible. (3) In determining whether to admit evidence as referred to in subsection (2) (d), the court shall: (a) be guided by the public interest, including where relevant the public interest in: (i) upholding the law, (ii) protecting people from illegal or unfair treatment, and (iii) punishing those guilty of offences, and (b) have regard to all relevant matters, including: (i) the seriousness of the offence in relation to which the evidence is sought to be admitted, and the nature of the contravention of section 5 concerned. 38 I am not satisfied that s.13 provides any real guidance so far as section 5(3)(b)(i) is concerned with respect to reasonable necessity for the protection of lawful interests. In my view, s.13 relates to the admission of evidence unlawfully obtained and the tests to be applied by courts when such evidence is tendered. 39 The defendant has raised character R. v. Murphy (1985) 4 NSWLR 42 at 51 (Whilst the primary significance of good character is upon the unlikelihood of guilt ... it can be used with reference to the credibility of the accused in his denial of the charge, and hence the unlikelihood of his guilt. Findings 40 In my view, the defendant had no reasonable necessity to do what she did in the particular circumstances of the time that the taping took place. She could have and should have gone to the police with the information that she had. If, as a consequence of her going to the police, nothing was done or she was not believed, then it is possible that a court could come to the conclusion that the recording was reasonably necessary for the protection of the lawful interests of the defendant. 41 On the evidence before me, I am satisfied that Mr. X did say something to the defendant that could be taken as meaning that he was involved in the murder of John Newman. I am satisfied that that occurred in April of 1998. I am not satisfied that in using the Listening Device that the defendant was acting out of fear of Mr. X, I am satisfied that she was trying to obtain solid evidence as to what she alleges he told her previously. 42 I am not satisfied that the establishing of those matters mentioned by Mr. Byrne SC in his opening of the defence case mentioned in paragraph 20 above, constitute the defence mentioned in s.5(3)(b)(i) of the Listening Devices Act that the defendant's actions were reasonably necessary for the protection of her lawful interests. I am of opinion that if I were to find in favour of the defendant on that point, then the whole object of the Listening Devices Act would be largely ineffective. 43 Having come to that conclusion, I think it is only proper to say, however, that if it were held elsewhere that those matters mentioned in Paragraph 20 above did constitute a defence, then the defence has established each matter on the balance of probabilities. 44 I adopt the statement of Graham DCJ in Zubrecky where he said that the legislation was … introduced to establish safeguards against an unjustified invasion of privacy that could be occasioned by the use of electronic surveillance. 45 I find each offence proved. 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.