R (Commonwealth) v Mark William Standen [2011] NSWSC 1040

Supreme Court New South Wales

Medium Neutral Citation: R (Commonwealth) v Mark William Standen [2011] NSWSC 1040 Hearing dates: 21 March 2011 Decision date: 21 March 2011 Jurisdiction: Common Law - Criminal Before: James J Decision: Proposed procedure can be implemented in relation to conversations that were recorded by surveillance devices Legislation Cited: Telecommunications (Interception and Access) Act 1979, Commonwealth - s 7(1), Chapter 2, ss 45, 63, 74 Surveillance Devices Act Cases Cited: Wood v Beves (1997) 92 A Crim R 209 John Fairfax Publications Pty Limited v Doe (1995) 37 NSWLR 81 John Fairfax Publications Pty Limited v District Court New South Wales (2004) 61 NSWLR 334 Category: Interlocutory applications Parties: Regina, Mark William Standen Representation: T Game SC, H Dhanji SC, S Buchen (Crown) M Ierace SC, G Farmer (Accused)Published Commonwealth DPP (Crown) Gordon Elliot, Elliot Lawyers (Accused) File Number(s): 2009/8922 Publication restriction: Published

Judgment 1HIS HONOUR: This trial commenced on 14 March and the giving of evidence commenced on 16 March. Much of the evidence given so far has consisted of evidence of telephone conversations, emails and faxes lawfully obtained as telecommunications intercepts by warrants issued under the Telecommunications (Interception and Access) Act 1979, Commonwealth. 2The giving of the evidence has included the playing in court of recordings of telephone conversations and the projection of texts of the emails and faxes on screens in the courtroom. As to the recorded telephone conversations, jurors have been issued with individual devices for listening to recordings. However, the recordings have also been played using sound equipment installed in the courtroom. What was said is clearly audible by this means and has thus been heard by persons in the courtroom, including members of the public and representatives of the media. 3I understand that there will be much further evidence in the trial consisting of intercepted telephone conversations, emails and faxes, and this evidence will be given in the same manner. I will refer to the evidence given and proposed to be given as "the telecommunications intercept evidence". 4The media has requested access to electronic or documentary copies of the telecommunications intercept evidence. In response to that request, a procedure has been proposed whereby the prosecution would provide to the Court's Information Officer electronic or documentary copies of the telecommunications intercept evidence, after that evidence has been adduced in evidence in open court in the trial. 5Last Friday morning, the Crown drew my attention to a possible risk perceived by the Crown that the proposed procedure for providing copies of the telecommunications intercept evidence to the media might involve a contravention of the Act . On Friday morning, the Crown sent me a document containing eight pages of submissions on this question. I was also referred by the Crown to a number of cases containing inconclusive and sometimes conflicting dicta having some relation to the question. 6Last Friday I declined to interrupt the trial to engage in a further consideration of the question. I directed that notice of the possible contravention of the Act be given to the Commonwealth Attorney-General and that a copy of the Crown's document be furnished on request to representatives of the media. On Friday I said that for the time being the proposed procedure should not be implemented. 7This morning counsel for the ABC and John Fairfax has appeared. On Friday notice was given to the Commonwealth Attorney-General and this morning a legal practitioner has appeared for the Commonwealth. The practitioner has indicated that counsel will be briefed and that counsel may be available to appear before the Court late this week or early next week. I was informed that the Commonwealth has not yet adopted any position in relation to the question. 8Although I have not had the benefit of hearing submissions on behalf of the Commonwealth, I consider that there is a public interest in my making an early ruling on the question. I will be prepared to reconsider the question if submissions are subsequently made to me that I should give the question further consideration. 9Last Friday morning I had very short notice of the question and only a few minutes to consider it. I have now had the opportunity of further considering the question and have reached a conclusion that the proposed procedure does not involve any contravention of the Act . 10It is necessary to refer to certain provisions of the Act . Section 7(1) of the Act provides that "a person shall not intercept a communication passing over a telecommunications system". However, parts of Chapter 2 of the Act provide for the lawful interception of telecommunications and in particular Part 2-5 provides for warrants authorising agencies to intercept telecommunications. Part 2-6 of the Act is headed "Dealing With Intercepted Information etc". Section 63 in Part 2-6 provides that "no person shall communicate to another person, make use of, or make a record of; or give in evidence in a proceeding lawfully obtained information, or information obtained by intercepting a communication in contravention of 7(1)." 11In the rest of Part 2-6 of the Act various express exceptions to the general prohibition in section 63 are stated. The only express exception which appears to be relevant is that in section 74 of the Act . Section 74 provides that "a person may give lawfully obtained information in evidence in an exempt proceeding". The present proceeding is an exempt proceeding within the provision of section 5B of the Act . Accordingly, the giving in evidence of the telecommunications intercept evidence in the present trial is expressly authorised by section 74 of the Act . However, section 74 does not expressly authorise the proposed procedure whereby electronic or documentary copies of the telecommunications intercept evidence would be provided to the media. 12The extent of any implied authorisation of the communication of lawfully obtained telecommunications information beyond that expressly conferred by section 74 has been discussed in a number of cases. In some cases it has been suggested that, as soon as lawfully obtained telecommunications information has been given in evidence, the status of the information changes and section 63 of the Act ceases to have any application. On the other hand, such a suggestion was repudiated by Cole JA, with whom Studdert J agreed, in Wood v Beves (1997) 92 A Crim R 209. 13I do not consider that it is necessary for me to attempt to resolve this particular question in order to determine whether the procedure proposed in the present case would involve a contravention of the Act . It is well established that, although not expressly authorised by section 74, the publication by the media of a fair and accurate report of evidence given in accordance with section 74 is necessarily impliedly authorised by section 74 of the Act and will not constitute a contravention of section 63. (See John Fairfax Publications Pty Limited v Doe (1995) 37 NSWLR 81 per Gleeson CJ at 87 and Kirby P at 112, 113; see also Wood v Beves per Handley JA at 213 and Cole JA at 222.) 14If publication by the media of a fair and accurate report of evidence given in accordance with section 74 is protected by section 74, then the providing to the media of electronic or documentary copies of evidence which has already been given in court in accordance with section 74, for the purpose of assisting the media in making a fair and accurate report of the evidence is also impliedly protected by section 74. I note that in John Fairfax Publications Pty Limited v District Court New South Wales (2004) 61 NSWLR 334, Spiegelman CJ said at paragraph 353(20):- "The entitlement of the media to report on court proceedings is a corollary of right of access by the members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings." 15Wood v Beves , to which I have already referred and which might be thought at first sight to be opposed to the view I have expressed, is a quite different case from the present. In that case Beves had declined to answer questions during the Royal Commission conducted by Wood J. The questions which Beves declined to answer were based on recordings of a number of lawfully obtained intercepts of telephone conversations. Proceedings for contempt of court were brought against Beves . The proceedings for contempt of court came before a single judge of the court who referred a number of questions to the Court of Appeal for determination by the Court of Appeal. It was held inter alia by the Court of Appeal that the proceedings for contempt were not an "exempt" proceeding and hence, unlike the present case, section 74 of the Act had no application. It was further held by the majority of the court that section 63 precluded the lawfully obtained telecommunications intercept evidence being used in the contempt proceedings, even though the evidence had previously been used in an open session of the Royal Commission. 16I conclude that the proposed arrangement would not involve any contravention of the Act and that it can be implemented. 17I have been referred this morning with respect to conversations recorded by listening devices or surveillance devices to section 45 of the Surveillance Devices Act subsections (1), (2), (3) and (4). Section 45 (1) and (2) create offences and subsection (3) provides that subject to subsections (4) and (5) protected information may not be admitted in evidence in any proceedings. However, section 45 (4) provides a broadly stated exception to the prohibitions in the earlier subsections of the section. Subsection (4) provides that subsections (1), (2) and (3) do not apply to the use, recording, communication or publication of any information that has been disclosed in proceedings in open court lawfully. 18Accordingly, under the Surveillance Devices Act , once information has been lawfully disclosed in proceedings in open court, its use, recording, communication or publication will not amount to an offence under the Surveillance Devices Act . 19Accordingly, the proposed procedure can be implemented in relation to conversations that were recorded by surveillance devices.