DPP (NSW) v Fordham; Byrne; TCN Channel Nine Pty Ltd [2010] NSWSC 795

Reported Decision : 202 A Crim R 254

New South Wales Supreme Court

CITATION : DPP (NSW) v Fordham; Byrne; TCN Channel Nine Pty Ltd [2010] NSWSC 795 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 6-12 April 2010

JUDGMENT DATE : 20 July 2010

JUDGMENT OF : Fullerton J

1. Each summons in which TCN Channel Nine Pty Ltd is charged with a breach of the Listening Devices Act is dismissed. 2. Each summons in which Mr Fordham is charged with a breach of s 7(1) of the Listening Devices Act is dismissed. DECISION : 3. The summons in which Mr Fordham is charged with a breach of s 5(1)(b) of the Listening Devices Act is dismissed. 4. In respect of the offence laid pursuant to s 6(1) of the Listening Devices Act that on 28 May 2008 Mr Fordham knowingly communicated a report of a private conversation, I find the offence proved but dismiss the summons as provided for in s 10(1)(a) of the Crimes (Sentencing Procedure) Act. 5. In respect of each of the four offences against Mr Byrne for breaches of s 5(1)(a) and s 6(1) of the Listening Devices Act, I find the offences proved but dismiss each summons as provided for in s 10(1)(a) of the Crimes (Sentencing Procedure) Act.

CATCHWORDS : Offences under the Listening Devices Act 1984 - s 5(1)(a) causing the prohibited use of a listening device to record a private conversation - s 5(1)(b) causing the prohibited use of a listening device to record a private conversation to which the person is a party - s 6(1) communication of a private conversation obtained in breach of the Act - s 7(1) communication of a private conversation obtained in breach of the Act where a party to a private conversation - s 8(1) being in possession of a record of a private conversation - leave to amend summonses at the close of the evidence where there is a failure to disclose all elements of an offence - whether either of the conversations recorded in breach of the Act were private conversations as defined in s 3 - meaning of causing another to record a private conversation by use of a listening device - whether a corporation is capable of contravening the Act where it is not a party to a private conversation - application of the 'rules of attribution' of criminal liability to a corporation for offences in Part 2 of the Act - whether a corporation can be vicariously liable for an offence involving mens rea