Reported Decision : [2000] 118 A Crim R 449 New South Wales Court of Criminal Appeal CITATION : R v W J Eade [2000] NSWCCA 369 FILE NUMBER(S) : CCA 60049/00 HEARING DATE(S) : 12/09/00 JUDGMENT DATE : 15 November 2000 PARTIES : Regina Wayne James Eade JUDGMENT OF : Priestley JA at 1; Greg James J at 21; Kirby J at 30 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0010 LOWER COURT JUDICIAL Kinchington DCJ OFFICER : COUNSEL : T L Buddin SC (Crown/Resp) P Byrne SC (App) SOLICITORS : S E O'Connor (Crown/Resp) Andrews (App) CATCHWORDS : CRIMINAL PRACTICE & PROCEDURE - Jurisdiction where issue is one of admissibility of evidence - Invalidity of Listening Device warrant - Admissibility of conversations recorded under invalid warrant Criminal Appeal Act, 1912 - s5F LEGISLATION CITED : Listening Devices Act, 1984 - Pt4; s5; s 7(2); s12; s13; s16 Listening Devices Act. 1969 (Vic) - s4A Evidence Act, 1995 - s138; s142 Lethlean (1995) 83 A Crim R 197 Steffan (1993) 30 NSWLR 633 R v EID (1999) 46 NSWLR 116 Bayeh v Taylor & Ors (unreported, 4/2/98) CASES CITED: Ousley v The Queen (1997) 192 CLR 69 Amalgamated Television Services P/L v Marsden [2000] NSWCA 167 R v Ellis Hill (23/2/88, unreported) R v Zubrecky (unreported, 22/2/91 Violi & Ors v Berrivale Orchards Ltd (2000) 173 ALR 518 DECISION : Refer para 67 IN THE COURT OF CRIMINAL APPEAL 60049/00 PRIESTLEY JA GREG JAMES J KIRBY J Wednesday 15 November 2000 REGINA v Wayne James EADE JUDGMENT 1 PRIESTLEY JA: The facts of this case, the matters that were raised by counsel for the accused, Mr Eade, before Kinchington DCJ and the way in which Kinchington DCJ dealt with those matters are set out in Kirby J's reasons. 2 I agree with Kirby J that Kinchington DCJ was right in holding that the warrants to be relied upon by the Crown against the accused were invalid, but that that did not necessarily mean that evidence of the four conversations in question was inadmissible. I also agree with Kirby J and Greg James J that Kinchington DCJ was wrong, in ruling at the stage which he did, that he would not exclude the evidence in question from being placed before the jury. For the reasons given by both Kirby J and Greg James J that ruling was premature and may have been based on a misapprehension about onus (see par 63 of Kirby J's reasons). 3 Despite my agreement with the views expressed by Kirby J and Greg James J on the matters that were argued before us, it seems to me desirable to add some observations concerning jurisdiction and procedure in the matters before the court. 4 After the presentment before Kinchington DCJ of the indictment against the accused containing the two charges detailed by Kirby J, but before a jury was empanelled, the judge was asked by counsel for the accused to rule on the admissibility into evidence of conversations between the accused and a witness named Hart whom, it seems, the Crown proposed to call in the Crown case. 5 Kinchington DCJ heard argument accordingly, after which he held that warrants the Crown was proposing to tender pursuant to which tape recordings had been made of the conversations between the accused and the witness, were invalid. He then gave reasons why he would not exclude evidence of the conversations from the jury. One step in his reasoning was that it did not necessarily follow from the proposition that the warrants were invalid that evidence of the conversations could not be given. 6 He ended his reasons by saying: " In these circumstances I am satisfied that I should not exercise my discretion in favour of the Accused and exclude the evidence from being placed before the jury. To my mind it is proper for the circumstances surrounding all four conversations to be led into evidence. " 7 In the form in which his ruling and the reasons for it were presented to this court they were entitled "Judgment on admissibility of evidence - delivered 13/10/99". A companion document containing a further ruling by Kinchington DCJ and the reasons for it was, in its form as presented to this court, entitled "Judgment on interlocutory application to permanently stay proceedings - delivered 13/10/99". 8 The reasons in the second document stated that following his ruling that he would not exclude evidence of the four conversations, counsel for the accused had moved for a permanent stay of the false testimony charge in the indictment. Kinchington DCJ rightly observed that in light of his previous ruling the application for a stay must fail. However, he indicated that in his view the questions of the invalidity of the warrants and the consequences of their invalidity were important ones so that it was appropriate for him to certify pursuant to s 5F of the Criminal Appeal Act "that my two interlocutory judgments and the legal issues that arise out of them are proper ones for determination on appeal by the Court of Criminal Appeal". 9 Subsequently a certificate dated 13 October 1999 was given by the judge as follows: " I hereby certify that the above judgment or orders is a proper one (sic) for the determination on appeal by the Court of Criminal Appeal upon the following grounds: 1. Whether the listening device warrants were invalid in accordance with the decision of Grove J in Bayeh v DPP for failing to expressly direct the removal of the listening devices on or before a specific date. 2. The effect of such invalidity with regards to Section of the Listening Devices Act 1984, as amended. In particular whether Section 13 operates to exclude any evidence obtained by the listening devices being led in the trial against Eade on the charges of misleading the Royal Commission and inciting supply. " 10 A notice of appeal "against interlocutory judgment or order" was filed on 31 January 2000 on behalf of the accused. (an extension of time was asked for, and granted.) The notice said, in part: " judgment or order appealed against: 1. That four conversations unlawfully obtained were admissible against the Appellant on a count of misleading the Royal Commission. 2. That four conversations unlawfully obtained were admissible against the Appellant on a count of incite supply. judgment or order sought 1. An Order vacating the orders made by His Honour Judge Kinchington. 2. Such further or other order or orders as the Honourable Court thinks fit. " 11 This court must decide whether to uphold or dismiss the appeal (or the appeals, as in the oral argument they were at times treated as being). 12 In the written submissions filed for the Crown as respondent, paragraph 2 dealt with a matter which was not discussed in the oral argument, but which has since caused me some concern. The paragraph said: " The first judgment dealt with the admissibility of evidence whilst the second was concerned with an application for a permanent stay. The first matter has not been regarded as an ' interlocutory judgment or order ' such as to attract the operation of s 5F of the Act whilst the second matter has been so treated. Nevertheless in the present case it may be taken that the two matters are inextricably interrelated in the sense that the application for a permanent stay depended for its success upon the asserted inadmissibility of the evidence. In all the circumstances it seems appropriate for this Court to entertain the appeal. " 13 The history of s 5F and the question of what are and are not judgments and orders for its purposes have been discussed in a number of cases in this court. The history was reviewed in Lethlean (1995) 83 A Crim R 197 by Sheller JA. Amongst other cases, he referred to Steffan (1993) 30 NSWLR 633 in which an application for leave to appeal from the District Court against rulings made in advance of a trial that recordings of conversations between the applicant and another person were prima facie admissible and refusing to stay the proceedings was refused on the ground (see Steffan at 639) that a ruling on evidence made in advance of or in the course of a trial was not an interlocutory judgment or order within the meaning of s 5F. 14 On the other hand, in R v EID (1999) 46 NSWLR 116 Adams J, in this court, in reasons with which Abadee and Barr JJ both agreed, expressed the view, material to the decision of the court, that a decision by a magistrate in committal proceedings about the validity of a warrant was an interlocutory judgment within the meaning of s 5F(3). 15 In the present case the appellant is the accused, who has no interest in seeking to overturn the decision by Kinchington DCJ that the warrants in question were invalid. In this court the Crown did not seek to uphold or otherwise argue the validity of the warrants (see par 8 of the Crown's written submissions). 16 That means that the only matter the accused was in fact appealing about was Kinchington DCJ's statement that he would not exclude the evidence from being placed before the jury. In reaching this conclusion Kinchington DCJ had taken two steps. He had ruled upon the interpretation of s 13 of the Listening Devices Act 1984 and had then stated his intention to exercise discretion in favour of allowing evidence of the four conversations to be given. Whether or not as trial judge he would be able to carry out that intention would depend upon what happened at the trial. The judge could not bind himself in advance to exercise in a particular way a discretion which would depend upon the evidence in the trial, which might or might not be the same as that put before him in the application decided before the jury was empanelled. Furthermore, as was pointed out in Steffan: " ... rulings on evidence may always be altered - although the necessary consequence of such an alteration may sometimes be the discharge of the jury. They may be altered because the circumstances in which the ruling was first made have altered, or simply because the judge has had a change of mind. " (at 639) 17 It thus seems to me that the ruling by Kinchington DCJ that he would admit evidence of the four conversations at the trial before the jury was not an interlocutory judgment or order within the meaning of s 5F even although in making the ruling he relied upon an interpretation of s 13 of the Listening Devices Act (with which interpretation I agree). The ruling that the warrants were invalid was (probably) an interlocutory judgment or order within the meaning of the section but was not the subject of appeal. The application to stay the proceedings, the subject of Kinchington DCJ's second ruling, was made, as Kinchington DCJ makes clear in his reasons, only after he had made his ruling about the admissibility of evidence of the four conversations. In any event, once Kinchington DCJ had reached the position (1), that the warrants were invalid, and (2), that that conclusion did not necessarily exclude evidence of the conversations being given, this application had to be refused. 18 Because the formal questions that I have been dealing with were not raised with the parties at the oral argument of the appeal and since the substance of the matter is agreed by the three of us hearing the appeal, I do not wish to hold up the decision of the proceedings by seeking further submissions on the topic. If my concerns about form are well founded, the result would be that the appeal (or appeals) would be dismissed in any event, even if one aspect of them would be dismissed on a jurisdictional basis. The reasons I have outlined for dismissing the appeal/s on this footing involve, so far as the jurisdictional point is concerned, my view that Kinchington DCJ was in error insofar as he committed himself finally, before the empanelling of the jury, to a ruling on the admissibility of evidence of the four conversations. 19 In my view one of the reasons why this court has no jurisdiction to set aside that ruling is that it was not a judgment or order at all, will not bind Kinchington DCJ at the trial, or any other judge who happens to preside over the trial, and is a ruling the making of which, if it is to be made, must await what happens at the trial. This court, in my view, can no more pronounce finally on the admissibility of the evidence of the four conversations at this point in the proceedings than Kinchington DCJ was able to do when the application was made before him. 20 Since however these formal and procedural aspects were not argued before the court, I would join in dealing with the appeals in the way envisaged in the oral argument, that is, by dismissing the appeal against the refusal of the stay and upholding the appeal against Kinchington DCJ's ruling that evidence of the four conversations would be admitted. The upholding of this appeal should have the consequence that the ruling will be set aside, and that it will be for the judge at the trial, on the evidence before the court when the Crown seeks to put the disputed matter into evidence, to decide whether that evidence should be admitted. 21 GREG JAMES, J: I have had the benefit of seeing the judgment of Kirby, J. in draft. Subject to these remarks, I agree with his Honour's conclusions and with his reasons therefor. 22 For myself, I add that the submissions on behalf of the appellant that s.13 of the Listening Devices Act 1984 would permit, in the exercise of discretion, evidence of the conversation to be led on count one, but would bar that evidence on count two, appear to have been based upon a view that s.13(3) applies whether evidence of the conversation were to be given by Ms. Hart or any other witness. But the position may be different, depending upon whether the witness giving evidence of the conversation was a participant in it or whether the conversation otherwise came to the knowledge of the witness (s.13). In the latter event, the submission would appear to be correct, but in the former event, I agree that the analysis on which Kirby, J. has embarked of the constructions of the section is necessary. 23 In the event that the evidence is to be led through Ms. Hart, since she was a party to the conversation and the recording was made with her complicity, she may communicate or publish to another person the record of the conversation made by use of the device (s.7(2)(b)). 24 Evidence may be given by her of the conversation by using the record to revive her memory. Section 13 would not apply and hence s.13(3) in particular would not be applicable. But because matters of illegality or impropriety may arise as a result of her complicity in the recording which was in breach of s.5, questions of discretion under s.138 of the Evidence Act 1995 will need to be considered. 25 Although the criteria under s.138 are not precisely the same as those under s.13(3), since they speak to a more general position, nonetheless in the particular circumstances the precise application of them would appear to be very much to the same substantive effect as those under s.13(3). 26 If the evidence was to be tendered through some other person, not a participant, then the requirements of s.13(3) for the exercise of the discretion will have to be considered. 27 As his Honour, Kirby, J., points out, the issues relevant to the exercise of appropriate discretion will call for findings of fact. In either event, I note that both under s.13(2) and (3) of the Listening Devices Act 1984 and under s.138 of the Evidence Act 1995, it will be necessary for the prosecution to satisfy the court of the matters mitigating in favour of the evidence being admitted. 28 I agree that it appears that his Honour, the trial judge, has approached the matter wrongly in that he seems to have considered that it was necessary for the accused to obtain a favourable exercise of discretion. 29 I conclude, therefore, as does Kirby, J., that the appeal should be upheld, the questions answered as his Honour proposes with the addition that if the evidence is to be tendered otherwise than by a principal party, s.13 applies. I consider that the matter should be thereafter returned to the learned trial judge to determine conformably with the decision of this court. 30 KIRBY J: This matter comes before the Court as an appeal under s5F of the Criminal Appeal Act 1912. Certain questions were certified by Kinchington DCJ, which I will set out below. Background 31 Wayne James Eade was, in 1995, an officer of the New South Wales Police Service. He became the target of an investigation conducted by the Royal Commission into that Service. On 24 August 1995, warrants were obtained from a judge of the Supreme Court (under Pt4 of the Listening Devices Act, 1984) to install listening devices in premises occupied by Ms Therese Colleen Hart. During August and September 1995, Mr Eade visited those premises. He spoke with Ms Hart. His conversations were captured on audio and video tape. 32 Mr Eade was called as a witness before the Royal Commission. He gave evidence in which he was cross examined concerning his conversations with Ms Hart. He was later charged with two offences: "1. On 12 September 1995 at Green Point in the State of New South Wales did incite Therese Hart to supply a prohibited drug, namely, 3,4 Methylenedioxyamphetamine (Ecstacy). 2. On 7 September 1995 at Sydney in the State of New South Wales being a witness at a hearing before the Royal Commission into the New South Wales Police Service, knowingly gave false testimony, namely, that he had never engaged in any form of illegal conduct, which was testimony touching a matter material in an inquiry being made by the said Royal Commission into the New South Wales Police Service." 33 The matter came on for trial before Kinchington DCJ. Before the jury was empanelled, counsel for Mr Eade sought a ruling upon the admissibility of conversations which had been recorded under the warrants. It was said, on behalf of Mr Eade, that the warrants were invalid. They were in the same form as warrants considered by Grove J in Bayeh v William David Taylor, De Santo, The Director of Public Prosecutions & Ors (unreported, 4 February 1998), which were held to be invalid. The Crown accepted that there was no material difference between the warrants relied upon in the prosecution of Mr Eade, and those in Mr Bayeh's case. His Honour Kinchington DCJ, accordingly, determined that the warrants were invalid. He further determined that the terms of the Listening Devices Act, 1984, s13, did not preclude the use of material so obtained, subject to the Court's discretion. Kinchington DCJ then decided that the evidence should not be excluded. 34 Counsel for Mr Eade, in these circumstances, filed a Notice of Motion. The Motion sought a permanent stay of the second charge (the false testimony charge). His Honour refused the Motion. However, he said this: "In these circumstances it seems to me that it is appropriate for me to certify that my two interlocutory Judgments and the legal issues that arise out of them are proper ones for determination on appeal by the Court of Criminal Appeal pursuant to Section 5F(4) of the Criminal Appeal Act 1912 and I so certify." 35 The questions certified by his Honour were as follows: "1. Whether the listening device warrants were invalid in accordance with the decision of Grove J in Bayeh v DPP for failing to expressly direct the removal of the listening devices on or before a specific date. 2. The effect of such invalidity with regards to Section 13 of the Listening Devices Act 1984, as amended. In particular whether Section 13 operates to exclude any evidence obtained by the listening devices being led in the trial against Eade on the charges of misleading the Royal Commission and inciting supply." Were the Warrants Invalid? 36 Part 4 of the Listening Devices Act, 1984, deals with warrants. It includes the following provisions: "S16(1) Upon application by a person that the person suspects or believes - (a) that a prescribed offence has been, is about to be or is likely to be committed; and (b) that, for the purpose of an investigation into that offence or of enabling evidence to be obtained of the commission of the offence or the identity of the offender, the use of a listening device is necessary, an eligible Judge may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of the listening device. ….. S16(3) Where a warrant granted by an eligible Judge under this section authorises the installation of a listening device on any premises, the eligible Judge shall, by the warrant - (a) authorise and require the retrieval of the listening device; and (b) authorise entry onto those premises for the purpose of that installation and retrieval. S16(4) A warrant granted by an eligible Judge under this section shall specify - (a) the prescribed offence in respect of which the warrant is granted; (b) where practicable, the name of any person whose private conversation may be recorded or listened to by the use of a listening device pursuant to the warrant; (c) the period (being a period not exceeding 21 days) during which the warrant is in force; (d) the name of any person who may use a listening device pursuant to the warrant and the persons who may use the device on behalf of that person; (e) where practicable, the premises on which a listening device is to be installed, or the place at which a listening device is to be used, pursuant to the warrant; (f) any conditions subject to which premises may be entered, or a listening device may be used, pursuant to the warrant; and (g) the time within which the person authorised to use a listening device pursuant to the warrant is required to report pursuant to section 19 to the eligible Judge and the Attorney General." 37 Here, the warrants authorised the installation of listening devices in the premises of Ms Hart. They also authorised their retrieval. They fixed a period during which the warrants were in force. However, the warrants did not require the retrieval of the listening devices. 38 As mentioned, in Bayeh v Taylor & Ors (supra), Grove J considered warrants which were in similar form. His Honour drew attention to Ousley v The Queen (1997) 192 CLR 69. That case concerned the Listening Devices Act, 1969 (Vic), s4A(3) and s4A(4). These are the companion provisions to s16(3) and s16(4) of the New South Wales statute. The only difference between the two statutes is that s16(3) of the New South Wales Act, uses the word "shall", whereas s4A(3) of the Victorian Act, uses the word "must". That being the context, Gummow J in Ousley v The Queen (supra) said this: (at 127) "Subsections (3) and (4) list certain matters that 'must' be specified in a warrant granted under the Act. The requirements of s4A(3) only apply if a warrant granted by the Supreme Court authorises the installation of a listening device on any premises. The requirements of s4A(4) apply to every warrant granted by the Supreme Court under s4A. The appellant did not suggest that either of the warrants failed to specify any of the matters that those subsections require on the fact of the warrant. The matters listed in subss 4A(3) and (4) constitute a comprehensive list of the matters that must appear on the face of the warrant for it to be a 'warrant granted under section 4A' within the terms of s4(3) of the Act." 39 Grove J, emphasising the words "by the warrant" in s16(3), determined that the failure to require the retrieval of the listening devices meant that the warrants were invalid. He said this: (at p18) "The plaintiff's contention in respect to the omission of the statement requiring retrieval of the listening device must be upheld. By the warrant, authority is given to retrieve it. Authorisation inheres no obligation to act and a person authorised may or may not choose so to do. A requirement to retrieve the device removes that choice. By the warrant, there must be no choice, there must be a requirement to retrieve the device. None of the warrants complies with s16(3) and as they relate to premises they are each therefore invalid." 40 That conclusion, with respect, was plainly right. It has direct application to the warrants relied upon by the Crown against Mr Eade. They, likewise, are invalid, as Kinchington DCJ held. The Crown, in its submissions to this Court, did not suggest otherwise. The Scheme of the Listening Devices Act 41 What are the consequences of invalidity of a warrant in terms of the admissibility of evidence obtained under that warrant? The Listening Devices Act, 1984, contains a general prohibition against the use of Listening Devices to record private conversations. Section 5 is in these terms: "S5(1) A person shall not use, or cause to be used, a listening device - (a) to record 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." 42 The term "party" is defined as follows: " party in relation to a private conversation, means - (a) a person by or to whom words are spoken in the course of the conversation; or (b) 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 or listens to those words." 43 There is also a definition of the term "principal party" which is as follows: " principal party in relation to a private conversation, means a person by or to whom words are spoken in the course of the conversation." 44 The words "private conversation" are defined in these terms: " private conversation means 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 (b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so." 45 There are a number of exceptions to the prohibition in s5(1), including the following: "S5(2) Subsection (1) does not apply to - (a) the use of a listening device pursuant to a warrant granted under Part 4." 46 None of the other exceptions is relevant. The exception in s5(2)(a), of course, presupposes a valid warrant, whereas there was none in this case. 47 Part 3 of the Act is headed "Admissibility of Evidence". It includes the following provisions: "S12 In this Part, a reference to the giving of evidence of a private conversation that has come to the knowledge of a person as a result of the use of a listening device includes a reference to the production of a record of such a private conversation. S13(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). S13(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. S13(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 sought to be admitted; and (ii) the nature of the contravention of section 5 concerned." 48 A definition is provided of the term "serious narcotic offence". That definition, relevantly, is in these terms: " serious narcotics offence means - (a) an offence under Division 2 of Part 2 of the Drug Misuse and Trafficking Act 1985;" 49 Inciting the supply of the drug Ecstacy (as alleged against Mr Eade in the first count) is a "serious narcotic offence" for the purposes of s13(2)(d)(ii) of the Act. The Contentions Made on Behalf of Mr Eade 50 The written submissions made on behalf of Mr Eade made a distinction between the two charges which he faced. 51 In respect of count 1 (inciting the supply of the prohibited drug Ecstacy), counsel for Mr Eade made the following submission: "… a charge of inciting the supply of a prohibited drug is, at least potentially, a serious narcotics offence within the definition contained in s3 of the Listening Devices Act. In those circumstances there is a discretion arising under the provisions of s13 of the Listening Devices Act as to whether the evidence, although unlawfully obtained, might be admitted as a matter of discretion." 52 In respect of count 2 (alleging false testimony before the Royal Commission), the following was said: "If the recording is unlawful, evidence of that recording cannot be introduced unless one of the exceptions to s13 of the Listening Devices Act, 1984, can be invoked. For the charge of giving false evidence, there is nothing available under s13 to enable the evidence to be admitted." The Construction of Section 13 of the Listening Devices Act. 53 Section 13 of the Listening Devices Act is an odd provision. The heading is in these terms: "Inadmissibility of evidence of private conversations when unlawfully obtained." 54 That heading rather suggests an intention on the part of the legislature to render inadmissible (subject to exceptions) all evidence of private conversations unlawfully obtained. The Second Reading Speech of the Attorney General encourages a similar view. The Attorney General (Mr Landa) said this: (Hansard 17 May 1984, p1094) "Clause 13 will render evidence inadmissible in civil or criminal proceedings if it was obtained by the unlawful use of a listening device, whether directly or indirectly. The clause, however, will enable any such evidence to be admissible if, among other things, the parties consent or, in the case of certain serious offences, the court in special circumstances so determines." 55 However, the extrinsic material, and the heading, are useful only where there is ambiguity. Here, on the Crown's submission, there is none. The Crown pointed to the opening words of s13(1) which, for convenience, I repeat: "S13(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 …." 56 That section is not dealing with evidence by a party concerning a conversation in which he or she was a participant. In Amalgamated Television Services Pty Limited v Marsden [2000] NSWCA 167, the Court (Priestley and Powell JJA, and Foster AJA), construing s13(1), said this: (at 11) "… the opponent (John Marsden), besides being a principal party to the conversation, had also listened to the recorded conversation after the tape had been made available to him and his representatives during the course of the trial and also had had access to the transcript of the tape. In our opinion, as a matter of construction, the section does not apply in the circumstances. The recorded conversation was a ' private conversation' as defined in s3 of the Act and the opponent and Elomari were each a ' principal party ' to it. In our opinion the section does not apply where the ' person called to give the evidence ' is a ' principal party ' to the private conversation. The conversation could not be said to ' come to the knowledge ' of such a party. He had knowledge of the private conversation directly and contemporaneously as a participant in it. The person contemplated by the section is one who acquires knowledge of it other than as a participant in it. It would apply to someone overhearing the conversation or acquiring knowledge of it in some way other than through the use of a listening device." (parenthesis added) 57 See also Wood J in R v Ellis Hill (23 February 1988, unreported, at 21-22); Graham DCJ R v Zubrecky (unreported, 22 February 1991 at 17ff); cf Violi & Ors v Berrivale Orchards Ltd ((2000) 173 ALR 518 at 528). The Transcript and Tape 58 The issue of admissibility having been raised before the trial, it was not entirely clear how the Crown intended to introduce the audio and video material. It would, presumably, seek its tender through Ms Hart, or a police officer responsible for the Listening Device. Is there any inhibition upon the reception of such evidence? The warrant being invalid, the tape has been illegally obtained (s5(1)(b)). Since, however, it was made with the complicity of Ms Hart, it may be used in the course of legal proceedings (s7(2)(b)). The Act does not prohibit its use. Its admissibility must be determined according to s138 of the Evidence Act, 1995. That section is in these terms: "S138(1) Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless 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." 59 In determining that issue, the Court is obliged to consider, amongst other things, the matters identified by s138(3). That section is in these terms: "S138(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." 60 These issues will, no doubt, call for findings of fact, made on the balance of probabilities (s142 Evidence Act). It is for the Crown to satisfy the Court, in the light of those facts, that the desirability of admitting the evidence outweighs the undesirability (cf ALRC 26, Vol 1, para 959). 61 His Honour, whilst not specifically adverting to s138, plainly recognised the need to balance competing interests. He said this: "It is clear that in criminal proceedings there is a public interest in ensuring that reliable evidence of an accused person's guilt should be admitted into evidence at his trial for the consideration of the tribunal of fact. Conversely that public interest also requires a trial Judge to look at the circumstances in which the questioned evidence may have been obtained because there is certainly a public interest in minimising the extent to which law enforcement agencies will be allowed to act outside the scope of their lawful authority. Indeed it seems to me that the principles enunciated by the High Court in Bunning v Cross and Ridgeway v The Queen as well as the Evidence Act itself should always be borne in mind when a trial Judge comes to decide on how he/she should exercise his/her discretion in relation to what evidence should or should not be allowed to be placed before the jury in a criminal trial in the exercise of his/her discretion." 62 He determined that the evidence should not be excluded. His judgment on admissibility included the following: "While the taping of the subject conversations was unlawful in the sense that those tapings were not authorised in accordance with the Act to which I have previously referred this in my opinion is not a case where there was a calculated disregard for the law or any intentional or reckless illegality involved on the part of any law enforcement officer nor could it be said there will be any fundamental unfairness to the Accused if the evidence is allowed to be placed before the jury. On the contrary the conversations in question were recorded in good faith and would clearly entitle a jury to conclude that the Accused was involved in serious criminal activity." 63 His Honour's remarks, however, may suggest that he regarded the onus as being upon the accused to satisfy him, on balance, that the material should be excluded (cf s135 Evidence Act). He concluded his judgment with these words: "In these circumstances I am satisfied that I should not exercise my discretion in favour of the Accused and exclude the evidence from being placed before the jury. To my mind it is proper for the circumstances surrounding all four conversations to be led into evidence." 64 The issues arising under s138 must be redetermined. The Court should address (by reference, inter alia, to the matters identified in s138(3)) the precise issue raised by s138(1), namely, whether the desirability of admitting the evidence outweighs the undesirability (the onus being upon the Crown). 65 In view of the conclusion I have reached, I need not deal with the alternative argument of the Crown, which was directed towards count 1 (inciting the supply of the prohibited drug, Ecstacy). It was argued that, even if s13(1) applied, count 1 relates to a "serious narcotic offence". Evidence obtained under the invalid warrant would be admissible (s13(2)(d)(ii)), subject to the Court exercising the discretion provided by s13(3) of the Listening Devices Act, 1984. Conclusion 66 Returning to the questions posed by Kinchington DCJ, I would suggest that they should be answered as follows: 1. Yes, the warrants were invalid. 2. Section 13 of the Listening Devices Act, 1984, does not exclude evidence by a principal party to the conversation which was illegally recorded. The admission of the recording must be determined under s138 of the Evidence Act, 1995, the onus being upon the Crown. Order 67 I have had the advantage of reading the judgment of Priestley JA in draft. I agree with his Honour's reasons. Leaving aside the jurisdictional issue, and approaching the matter in the way in which it was argued, I would propose the following orders: 1. That the appeal against the refusal of stay be dismissed. 2. That the appeal in respect of the decision to admit evidence of the four conversations be upheld, and his Honour's ruling set aside. 3. That the matter be returned to the District Court to be determined according to law. Since it is apparent that Kinchington DCJ certified that his judgment or order (in respect of which he stated two questions) was a proper one for determination on appeal, it is unnecessary for leave to be granted (s5F(3)). ********** 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.