In Rathswohl v Court [2020] NSWSC 1490 [9]-[35] Rees J offers a useful discussion of covert private recording
Use of listening devices
It is an offence to use a listening device to record a private conversation: section 7(1)(b), Surveillance Devices Act 2007 (NSW). It is not an offence if the elements described in section 7(3)(b)(i) are established, which provides:
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, …
“Principal party” is a person by or to whom words are spoken in the course of the conversation: section 4, Surveillance Devices Act. ...
The mischief intended to be addressed by the earlier and relevantly identical Listening Devices Act 1984 (NSW) is described in the second reading speech of the Listening Devices Bill 1984 by the then Attorney-General of New South Wales (extracted by Branson J in, Violi v Berrivale Orchards Ltd (2000) 99 FCR 580; (2000) 173 ALR 518; [2000] FCA 797 at [21]):
The bill will establish safeguards against the unjustified invasion of privacy that can be occasioned by the use of electronic surveillance. In so doing, it seeks to protect one of the most important aspects of individual freedom - the right of people to enjoy their private lives free from interference by the State or by others ... People should not be expected to live in the fear that every word that they speak may be transmitted or recorded and later repeated to the entire world.
The second reading speech for the Surveillance Devices Bill 2007 does not advance matters.
The words and phrases in section 7(3)(b)(i) are not defined by the Surveillance Devices Act but have been considered in a number of cases. It is useful to analyse the authorities in the context of criminal law, family law (generally concerning domestic and family violence) and civil claims. My research has not revealed any specific case concerning the use of a listening device in a family provision claim. The closest case, factually, is Thomas v Nash (2010) 107 SASR 309; [2010] SASC 153, considered at [25], where a son recorded conversations with his mother said to bear upon whether she had capacity to make a will. Otherwise, the situation at hand fits most comfortably within the civil claims case law considered at [23]-[35].
Criminal cases
In the criminal arena, the first appellate decision of note is R v Le (2004) 60 NSWLR 108; [2004] NSWCCA 82. Ms Le was a friend of Phuong Ngo, who was convicted of the murder of John Newman. Ms Le claimed that Albert Ranse told her that he had shot Mr Newman but said that she could never use what he had told her as it would be her word against his. In cooperation with a friend who worked for Channel Nine, video cameras and microphones were installed in Ms Le’s car and conversations were thereby recorded with Mr Ranse. Adams J concluded that Ms Le had established that it was reasonably necessary to make the recording. The likelihood that Mr Ranse would deny the conversation was obvious and Ms Le had a lawful interest in protecting herself from the risk of the accusation that she had fabricated the conversation. “The avoidance of being labelled a liar is, to my mind, an important lawful interest, especially in the context of a criminal investigation, and it is clear that recording the conversation was the only practicable mode of preventing or refuting such an allegation”: at [83]. Further, at [84]:
… I do not accept that a purpose of the Act, let alone its whole object, is to prevent an irrefutable record to be made and communicated in a context where communication of the conversation is otherwise lawful. Of course, this is not to say that the mere intention of making an irrefutable record of a conversation to which one is a party will, without more, satisfy the defence: the circumstances in which the recording occurs will always be relevant to the determination of whether there is, indeed, a “reasonable necessity” for doing so.
Hulme J agreed, but expressed grave doubts whether, as a general proposition, the recording of the conversation in order to ensure there was an irrefutable record of it could be regarded as protected by the defence: at [79]. In dissent on this issue, Giles JA considered obiter that it was open to the trial judge to conclude that the elements of section 7(3)(b)(i) had not been established. At [47]: …
Different minds could give different answers in the application of reasonable necessity. I am quite unable to conclude, however, that only an affirmative answer was possible. Protection of credibility generally or in the event of giving evidence plainly did not dictate an affirmative answer. Concern to have a supporting record before making allegations is of more significance, but in my opinion it was open to the judge to regard it as insufficient.
In Sepulveda v R (2006) 167 A Crim R 108; [2006] NSWCCA 379, the identical provisions in the Listening Devices Act 1984 (NSW) were considered by Johnson J, with whom McClellan CJ at CL and Hislop J agreed. A complainant in respect of historical sex abuse made a clandestine recording of a conversation with the accused for the purpose of bringing the accused to justice for criminal acts committed against him and his brothers. At the time of the recording, the complainant was 29 years old and the abuse had occurred when he was between 9 and 14 years old. The complainant sought to obtain money from the accused in exchange for the recording. Johnson J held that the recording should not have been admitted into evidence at trial as it was not “reasonably necessary” to make the recording as the victim could have approached police with his complaints; the police could have applied for a warrant under the legislation with the consequence that any conversation recorded pursuant to the warrant would have been lawfully obtained: at [138]-[139].
Johnson J observed that the mischief which the legislation addressed was the protection of privacy by establishing safeguards against unjustified invasions of privacy that could be occasioned by the use of electronic surveillance: at [105]. The legislation created an elaborate structure whereby an application could be made to this Court for the issue of a warrant to record conversations. The steps prescribed by the legislation for obtaining a warrant provided an integrated scheme for controlling infringements of privacy: at [108]-[111]. The words of section 5(3)(b)(i), which is in identical terms to section 7(3)(b)(i), whilst broad, must be viewed against this context. At [115]:
… There is a strong argument that the words of s 5(3)(b)(i) ought be closely confined to avoid undermining the primary purpose of the [Listening Devices] Act. An undue willingness to include a multitude of differing circumstances within this statutory exception may serve to encourage persons to make a covert recording of a conversation rather than (in the present context), comply with the primary object of the Act by bringing the matter to the attention of relevant law enforcement authorities so that application may be made for a warrant to lawfully record a conversation.
In respect of “reasonably necessary”, his Honour proceeded on the basis that “necessary” meant appropriate but not essential and “reasonably” imported an objective test, to be assessed upon the grounds that existed at the time of the recording: at [116]-[118]. “Protection” meant ‘defence from harm, danger and evil’: at [120]. Whilst the term “lawful interest” was capable of broad construction, Johnson J considered obiter that the statutory context in which the words appeared suggested that the meaning was not open-ended, noting that the provision constituted a statutory exemption to the prohibition upon recording conversations and where the Act operated to protect privacy: at [141]. At [142]:
… The “lawful interests” identified by the learned trial Judge in the present case are of a somewhat nebulous kind. They do not appear to satisfy the requirement that the recording be undertaken for the protection of then existing lawful interests. It is important that a construction not be attached to this statutory exception which would serve to undermine, in a significant respect, a primary purpose of the [Listening Devices] Act.
In DW v R (2014) 239 A Crim R 192; [2014] NSWCCA 28, a different result pertained on the facts. A 14 year old girl made a secret recording of a conversation with her father, who was later convicted of indecent assault and child pornography offences. The girl’s friend suggested that she make the recording in circumstances where the police had yet to become involved in events at the family home and the girl thought that her stepmother would not believe her allegations. The girl was frightened of her father, who had convinced his wife that the girl was lying. She did not immediately take the recording to the police, or any authority figure, but hid the recording by renaming it in a different file so that her father could not access it. She did not seek to obtain money in exchange for the recording.
Ward JA, with whom Harrison and Hulme JJ agreed, found no error in the trial judge’s finding that the child’s interest not to be a victim of serious criminal offences was a “lawful interest” for the purposes of section 7(3) of the Surveillance Devices Act. Her Honour found that the facts were different to those in Sepulveda as the complainant was 14 years old and, although she had her own mobile phone, this did not mean she should be expected to have understood the legal avenues that she could take in order to have her complaints investigated: at [47]. It was open for the trial judge to infer that the recording was made for the purpose of protecting the complainant’s lawful interest in protecting herself from continuing abuse and exploitation: at [49]. It was not practicable in the circumstances of the case for the complainant to contact police in order to seek to arrange a warrant to record conversations with her father: at [51].
Similarly, in R v EP [2019] ACTSC 89, a woman made a complaint to the police that the accused had threatened to disseminate sexually explicit images of her. The woman later found – on the driveway to her home – an intimate image of herself, and took it to the police. She then made a covert recording of a conversation with the accused, in which the accused told her that she had to have sex with him for three months, else he would disseminate intimate images of her. The recordings were admitted into evidence as, on objectively reasonable grounds, the complainant considered it necessary to make the recordings to protect her lawful interests: at [42].
Family law cases
In Latham v Latham [2008] FamCA 877, a father made secret recordings of his wife and children, including abusive comments which suggested that the wife was a child abuser. Trench J accepted that the recordings were reasonably necessary to protect the father’s lawful interests, including the likelihood that the wife would deny the conversations; that the husband needed to protect himself from risk of the accusation that he had fabricated the conversations; and, to avoid being labelled a liar. The husband was entitled to be present where the recordings were made, was entitled to participate in the conversations and repeat the conversations. Further, Trench J was otherwise prepared to admit the evidence under section 138 of the Evidence Act. At [28]:
… the probative value of the evidence is potentially high. The evidence is potentially important. … The impropriety demonstrated by the husband in the obtaining of the evidence is, in my view, not gross. The recordings were made in the confines of a family. Whatever is evidenced by the recordings is not said to have been contrived or manufactured by the husband. It seems to be accepted that the recordings were made in the process of the ordinary function of this family. … it is highly unlikely that the husband would have been able to obtain the recordings with the knowledge or permission of the wife.
In Groom v Police (2015) 252 A Crim R 332; [2015] SASC 101, Mr Groom was recorded by his former partner during handover of access to their child. The former partner had made many allegations that Mr Groom was breaching an intervention order but had encountered problems proving the allegations and none proceeded to a conviction. The former partner said she held genuine concerns for her wellbeing. Nicholson J concluded, on appeal, that the recording was admissible. Nicholson J considered that, whilst breach of an intervention order was a relatively minor crime and there was no suggestion of physical violence, breach of such an order was still serious. A court should more readily accept that a recording was carried out in pursuance of a person’s lawful interest in circumstances where that person had a genuine concern for their own safety: at [40].
In Gawley & Bass (2016) 313 FLR 346; (2016) 55 Fam LR 396; [2016] FCCA 1955, a father installed a listening device in the mother’s home for some three weeks. The father recorded the mother with their children in an attempt to corroborate his assertions about the violence and parenting capacity of the mother, should this ever be questioned by an authority. The father made a report to Child Protection Services about the mother’s violent temper and mistreatment of the children, expressing a concern that the mother had assaulted one of the children. He arranged a meeting to discuss these concerns. Judge Baker concluded that the lawful interest of the father, as a parent of the children, was to protect the children from the risk of harm and concluded that it was reasonably appropriate for the father to record the conversation: at [52]-[55].
Civil claims
In the civil context, in Violi v Berrivale Orchards, Mr Violi sought damages for misleading and deceptive conduct, based largely on conversations between Mr Violi and an employee of Berrivale Orchards, Mr Pumpa. Mr Violi recorded the conversations with the purpose of publishing the conversations if Mr Pumpa later did “not tell the truth about what was happening” or if Berrivale Orchards later denied the existence of a contract between the parties: at [3]. Branson J considered that “lawful interest” did not equate with “legal interests” in the sense of a legal right, title, duty or liability but rather encaptured interests which were not unlawful: at [28]. Having regard to the statutory context, however, her Honour considered that the Parliament did not intend to exclude from the operation of the section the recording of private conversations for the purpose of using the recording as evidence in proposed or pending legal proceedings, notwithstanding that obtaining reliable and probative evidence was ordinarily a lawful and proper thing to do: at [30]. Thus, her Honour concluded that Mr Violi’s recording of conversations was not reasonably necessary for the protection of his lawful interests within the meaning of the Act: at [33].
See likewise Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266, where a joint venture partner sought declarations that it was entitled to record meetings of the joint venturers. The declarations were refused. Simply obtaining an accurate record of a meeting is not sufficient to constitute a “lawful interest”, nor is making a recording in contemplation that it might be used if there is some form of litigation in the future: at [48]-[49] per Sulan J. Similarly, in Georgiou Building Pty Ltd v Perrinepod Pty Ltd (2012) 86 ACSR 713; [2012] WASC 72, recording a meeting in accordance with one’s usual practice, at a time where no dispute was present or anticipated, does not demonstrate that recording the meeting was reasonably necessary to protect one’s interests: at [17] per Allanson J. More recently, in RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 3) [2018] FCA 404, White J held that recording a meeting “so I will be able to make notes and recall all the detail” did not constitute protection of the lawful interests of the person: at [30]-[31].
Probably the most detailed judgment on recordings made ‘just in case’ there is a dispute is Thomas v Nash, which concerned whether the deceased mother of Mr Nash had capacity to make a Will. Mr Nash had recorded conversations with his mother said to bear upon this issue. Mr Nash said that he made the recordings in case his mother forgot things but Doyle CJ did not accept this explanation. “If it played a part in his thinking, it played a minor part only. He said that he made the recordings so that he could prove things … I find that he made the recordings in case it might later prove to his advantage to have them”: at [25]. His Honour rejected the tender of the recordings. At [45]:
Mr Nash made the recordings in case it might later turn out that in some way he could use them to his advantage. There was no litigation in contemplation at the time. Even if there was, my conclusion would be the same. I do not consider that a person makes a recording to protect his lawful interests simply because he has a hope that in contemplated litigation the recording might be used to his advantage. …
Doyle CJ reviewed the authorities in respect of “lawful interests” and concluded at [47] to [48]:
[47] In none of those decisions is there an attempt to identify comprehensively the scope of the expression “lawful interests”. That is not surprising. It is an expression which is best left to be applied case by case, subject to some general guidelines.
[48] Each decision is an application of the expression to its particular facts. In most of those decisions it was accepted that a mere desire to have a reliable record of a conversation is not enough. I agree. Most of the decisions proceed on the basis that a desire to gain an advantage in civil proceedings would not ordinarily amount to a relevant lawful interest, although of course each case has to be considered on its facts. Several of the cases proceed on the basis that where the conversation relates to a serious crime, or an allegation of a serious crime, or to resisting such an allegation, a court is more likely to find that the recording of a conversation relating to the crime can be made in the protection of the person’s “lawful interests”.
If asked to exercise his discretion to exclude the evidence, Doyle CJ considered that he would have done so as Mr Nash’s actions amounted to a substantial intrusion of privacy where no public interest called for the admission of the evidence. To admit the evidence in the circumstances would amount to the Court condoning what Mr Nash had done. His Honour doubted whether the excluded recordings would provide any information not already available about the capacity of his mother: at [56]-[57]. Further, to the extent that Mr Nash had also recorded conversations with the executors which might be used to contradict something which they said in evidence, Doyle CJ considered that there was no reason to think from anything that Mr Nash had put to those witnesses that a finding that their evidence was wrong in the matter of detail would lead anywhere: at [57]. An important factor in his Honour’s judgment was that Mr Nash appeared for himself in the trial and appears to have done so in a most unsatisfactory manner.
The result may be different where the parties are already in dispute. In Chao v Chao [2008] NSWSC 584, Brereton J held that a recording by the plaintiff of a telephone conversation with the defendant was reasonably necessary where, at the time of the conversation, “a serious dispute had erupted” between them and it was obvious that who was going to be believed as to the different versions of the arrangements originally made between them in respect of a property were highly contentious where, on the plaintiff’s case, the defendant was threatening to eject her from the property and litigation had already commenced: at [8]. Likewise in Metz Holdings Pty Ltd v Simmac Pty Ltd (No 1) (2011) 193 FCR 195; [2011] FCA 263, the applicant sought to rely on recordings of conversations with the respondent in support of a trade practices claim. Barker J accepted that the recordings were made to protect the lawful interests of the applicant as, at the time that the recordings were made, the parties were in dispute: at [24]. The applicant had become quite concerned with the respondent’s behaviour and was unable to have a rational discussion with him, which led to the recordings: Metz Holdings Pty Ltd v Simmac Pty Ltd (No 2) [2011] FCA 981 at [160].
Perhaps the most comprehensive judgment on a recording made where the parties were in serious dispute is Dong v Song (2018) 331 FLR 326; [2018] ACTSC 82. Ms Dong bought a restaurant with Mr Song but had difficulty extracting a copy of the contract for sale from Mr Song and became suspicious about her business partner. Ms Dong recorded a meeting with Mr Song and, a month later, commenced proceedings against him for misleading and deceptive conduct. McWilliam AsJ considered that, in a civil context, the ability for a party to obtain a warrant, as described in Sepulveda v R, was less significant. At [35]-[36]:
[35] It is difficult to see how the above reasoning as to the proper construction of the exception is applicable in a civil context. Respectfully, I do not accept the Act ought be construed so that the obtaining of a warrant is seen as the ‘primary exception’, by which other exceptions that directly follow it (in this case, s 4(3)(b)(i) of the Act) ‘ought be closely confined’. The context of the section does not require such a construction, and it does not sit well with the fact that the particular exception provided for by the Act is equally apt to the use of listening devices to protect a person’s interests in a civil context. A person who seeks to protect their private interests in a civil context cannot entreat the relevant law enforcement authorities to use their resources to apply for a warrant: see Crimes (Surveillance Devices) Act 2010 (ACT) s 11. The exception in s4(3)(b)(i) of the Act is necessarily unrelated to the exception covering warrants in s4(2)(a) of the Act.
[36] In my view, neither a broad nor a confined construction attaches to the exception created by s 4(3)(b)(i) of the Act. Rather, in line with Doyle CJ’s comment in [Thomas v Nash] … it is preferable to simply consider the expression ‘lawful interests’ in the context of the circumstances of each case, focussing on the words not in isolation, but in the context of the section being an exception to a criminal offence, and with the purpose of the Act in mind. It may be that the more tenuous the lawful interest, the less likely that it will be objectively necessary to protect it through the means of a listening device.
At the time of the recording, Ms Dong felt cheated by Mr Song, and mistrustful of him. Her Honour found that the purpose of the recording was consistent with seeking to obtain admissions from Mr Song: at [47]. Her Honour concluded that section 7(3)(b)(i) was established. At [48]:
As at [the date of the recording], the plaintiff had then existing legal rights in relation to the past conduct of the defendants. She was not in the position of a victim of crime who might invoke the assistance of police. She was in the position of a person who had an interest in confirming the previous representations that had actually been made to her and in having a reliable record of what the defendants said to corroborate her position, not in the abstract or in the hope that it might be used to her advantage (c.f. [Thomas v Nash] at [45], [48]), but in circumstances where the plaintiff now had real doubts about the honesty of the defendants and where legal proceedings were not only in contemplation but imminent, and would turn on oral conversations between those parties.
The recording may not be admitted where it was made for improper purposes. For example, in Levy v Bablis [2013] NSWCA 28, “The conversation was not recorded for the purpose of obtaining admissions as to the transactions which had been undertaken and in respect of which [the principal party] may have had legal rights. It was recorded to trap [those being recorded] into engaging in further conduct, the threat of disclosure of which [the principal party] could then use to “persuade” them to meet their asserted obligations under the earlier transactions”: at [109] per Meagher JA (with whom Beazley and Macfarlan JJA agreed).
The fact that the person being recorded is engaging in a dishonest act may suggest the recording was necessary. In Arcaba v K & K Real Estate Pty Limited [2016] NSWSC 1793, Hall J admitted into evidence a recording of a conversation where the plaintiff, who was suing the defendant for damages for breach of an oral contract, was asking for a piece of paper that falsely represented that the defendant owed him $550,000, in order to mislead creditors. Whilst his Honour’s ex tempore judgment is not available, it appears that it was relevant to Hall J that the conversation consisted largely of the plaintiff speaking without interruption and calmly, thus, presumably not entrapped by the principal party. Further, the subject matter recorded was of a serious nature, indicating a preparedness by the plaintiff to resort to unprincipled and dishonest measures: at [167].
Lastly, in Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd (2018) 132 SASR 63; [2018] SASC 116, a truck driver brought proceedings in respect of the withdrawal of trucking work by the defendants, due to allegations that he was a bad driver. The truck driver made a series of recordings of conversations with the defendants and other persons “just to keep a record of who said what” and because, where someone abused the truck driver, he had a record so that nobody could later say that there was no abuse. As he was often driving at the time, it was not practical to take notes. He denied that he was gathering evidence for trial. After a masterful review of the case law, Doyle J observed at [101]:
Drawing all of the above threads together, it remains the case that the concept of “lawful interests” is of uncertain content. While some general propositions hold true, and some guidance may be gained from a consideration of the authorities, the issue of whether a recording was made for the protection of a person’s lawful interests remains one very much anchored in the facts of the particular case.
In the civil context, his Honour observed that not every commercial or legal interest, or dispute in relation to such an interest, would suffice to establish a lawful interest for the purposes of the legislation. At [105]: However, it would seem that where a dispute has arisen, and has crystallised into a real and identifiable concern about the imminent potential for significant harm to the commercial or legal interests of a person, this may suffice to give rise to lawful interests warranting protection through the use of a listening device…
Thus, in that case his Honour considered the plaintiffs had a lawful interest in attempting to maintain, and avoid losing, their flow of work from the defendants and understanding and attempting to refute allegations about bad driving which represented a threat to that work. Recordings of such conversations were admissible whilst other recordings were not.
Summary
The following considerations may indicate whether recording a private conversation without consent may be “reasonably necessary for the protection of the lawful interests” of the person making the recording.
Whether the purpose of the conversation was to obtain admissions in support of a legitimate purpose. The contentious subject matter of the conversation, or the characteristics of the person being recorded, may indicate that it was necessary to make the recording in order to secure the admission. Recording a conversation for the purpose of extracting money, inducing further improper conduct or to blackmail the recorded party will indicate to the contrary.
Whether it was important to protect oneself from being accused of fabricating a conversation and recording the conversation was the only practical means of refuting such an allegation. This is more likely to be the case where the conversation concerns a serious criminal matter or the principal party has a genuine concern for their safety or that of their children.
Whether there were other practical means of recording the conversation, for example, reporting the matter to police or making a contemporaneous file note.
Whether there was a serious dispute on foot between the parties, including where determination of the dispute would vitally depend upon oral evidence and thus, one person’s word against another. Recordings of conversations ‘just in case’ there is a dispute, or for the sake of making an accurate record of what was said, is not enough.
