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Court of Criminal Appeal 7 May 2004

Regina v Le

[2004] NSWCCA 82

Also reported as 60 NSWLR 108
Public order & justice offences
LISTENING DEVICES

Citation: Regina v Le [2004] NSWCCA 82
Court: NSW Court of Criminal Appeal
Date: 7 May 2004
Judge(s): Giles JA; Hulme J; Adams J

Background

The appellant was a friend of a man charged with murder. She claimed that another person had confessed to her that he was the actual shooter. To obtain an irrefutable record of this confession, she co-operated with a Channel 9 contact to covertly record two subsequent conversations with that person, on 21 and 22 February 1999. Video cameras were concealed in her car, and a microphone was attached to her jacket.

The microphone transmitted audio to recording equipment located in a separate vehicle. It did not itself record anything. The appellant was charged with two offences under s 5(1)(b) of the Listening Devices Act 1984, which prohibits a party to a private conversation from using a listening device to record it without the consent of all parties.

The Local Court found her guilty of both charges but dismissed them without conviction under s 10. Both the appellant and the Crown appealed to the District Court. The District Court judge then submitted three questions of law to the Court of Criminal Appeal by way of stated case under s 5B of the Criminal Appeal Act 1912.

  • Whether the microphone alone, which could transmit but not itself record a conversation, qualified as a "listening device" within the definition in s 3(1) of the Listening Devices Act 1984
  • Whether the appellant's use of that microphone constituted "using a listening device to record" a private conversation under s 5(1)(b) of the Act
  • Whether the District Court judge erred in finding that the appellant had failed to establish the statutory defence under s 5(3)(b)(i) of the Act, which permits recording where it is reasonably necessary for the protection of the party's lawful interests

Decision

On the first question, the Court of Criminal Appeal held that the District Court judge had erred. The statutory definition of "listening device" requires an instrument "capable of being used to record or listen to" a private conversation. Because the microphone, as particularised by the Crown, could only transmit and could not itself record, it did not meet that definition. The Court noted this outcome was driven directly by the Crown's particularisation of the microphone as the listening device, rather than the microphone together with the recording equipment.

On the second question, the Court nonetheless answered "No" to the question of whether the judge had erred in finding that using the microphone constituted using a listening device to record. Despite the microphone not being a listening device on its own, the Court found that the overall apparatus involved did amount to a listening device being used to record, even if the microphone was only one component. The reasoning here is somewhat technical: the answer to question two reflects that, even accepting the error on question one, the overall use of the equipment involved using a listening device to record.

On the third question, the Court found the District Court judge had erred in law in relation to the s 5(3)(b)(i) defence. That defence applies where recording was reasonably necessary to protect the lawful interests of the person making the recording. The judge below had focused on whether having the conversation was reasonably necessary, rather than on whether the recording of it was. The Court held this was the wrong question. Given that a participant in a conversation is otherwise lawfully entitled to repeat or report it, and given that the law had arguably imposed a duty to report the matter to police, it was not open on the evidence to find the defence unavailable to the appellant.

Orders Made

  • Question 1 (whether the microphone alone was a listening device): answered Yes, the District Court erred in so holding
  • Question 2 (whether use of the microphone constituted using a listening device to record): answered No, the District Court did not err
  • Question 3 (whether the District Court erred in finding the s 5(3)(b)(i) defence not established): answered No, the District Court did not err on this ground
  • The findings of guilt and the sentences imposed on the appellant were set aside
  • The summonses were ordered to be dismissed

Key Takeaways

  • A microphone that can only transmit audio to separate recording equipment does not, on its own, satisfy the definition of "listening device" in s 3(1) of the Listening Devices Act 1984, which requires a device capable of recording or listening to a conversation.
  • The Crown's particularisation of the specific device said to constitute the listening device carries significant consequences. A narrow particularisation identifying only the microphone, rather than the full recording apparatus, can be determinative of the charge.
  • Under s 5(3)(b)(i) of the Act, the question for the statutory defence is whether the recording itself was reasonably necessary for the protection of the recorder's lawful interests, not whether having the underlying conversation was reasonably necessary.
  • A participant in a private conversation has a general legal entitlement to repeat or report that conversation to others. The Court of Criminal Appeal confirmed this is a relevant consideration when assessing whether covert recording by a party to the conversation was reasonably necessary.
  • Where a person faces circumstances that arguably engage a reporting duty (such as under s 316 of the Crimes Act), and records a conversation to create an irrefutable account, it may not be open to find the s 5(3)(b)(i) defence unavailable without examining those circumstances carefully.

Legislation and Cases Referenced

Legislation:
- Listening Devices Act 1984 (NSW), ss 3(1), 5(1)(b), 5(3)(b)(i)
- Criminal Appeal Act 1912 (NSW), s 5B
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), ss 17, 26
- Crimes Act 1900 (NSW), s 316

Cases cited:
- Barbaro v Director of Public Prosecutions (1999) 49 NSWLR 68; (2001) 51 NSWLR 419
- Beckwith v R (1976) 135 CLR 569
- Miller v TCN Channel 9 (1988) 36 A Crim R 92
- Ousley v The Queen (1997) 192 CLR 69
- R v Adams (1935) 53 CLR 563
- R v Giaccio (1977) 93 A Crim R 462
- Steiner Wilson & Webster Pty Ltd v Amalgamated Television Services Pty Ltd (2000) Aust Torts Reports 81-537