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District Court 12 August 2009

R v Constantinos RIGANIAS

[2009] NSWDC 216

Fraud & dishonesty
CRIMINAL LAW JUDGMENT ADMISSIBILITY OF EVIDENCE RECORDED TELEPHONE CONVERSATION

Citation: R v Constantinos Riganias [2009] NSWDC 216
Court: District Court of New South Wales
Date: 12 August 2009
Judge(s): Berman SC DCJ

Background

The accused faced a 32-count indictment alleging that he obtained money from multiple people by deceiving them about how their funds would be used. The Crown alleged he told investors their money would go into a residential property development at Pyrmont. Forensic accounting evidence showed the funds were instead used for share purchases, personal living expenses, credit card debts, and TAB betting account deposits.

One investor, who had handed over $194,000, grew increasingly suspicious after repeated requests for proof of investment went unanswered. Over time, he used his mobile phone to record fifteen telephone conversations with the accused without the accused's knowledge. He later downloaded the recordings, burned them to CDs, and eventually provided them to police.

The Crown sought to use those recordings at trial to show the accused had told the investor the money was going into property developments, directly contradicting the accused's own account to the Department of Fair Trading. The defence challenged the admissibility of the recordings.

  • Whether the investor's covert recording of private telephone conversations breached section 5 of the Listening Devices Act 1984
  • If a breach occurred, whether the exception in section 5(3)(b)(i) applied because the recording was reasonably necessary to protect the investor's lawful interests
  • If a breach was established, whether the evidence should nonetheless be admitted under section 138 of the Evidence Act 1995

Decision

The court first considered whether the investor's conduct breached section 5 of the Listening Devices Act 1984. The Crown conceded the conversations were private, and the investor was a party to them, so the general prohibition was engaged. The question was whether the section 5(3)(b)(i) exception applied: that recording was reasonably necessary for the protection of the investor's lawful interests.

Applying an objective test and looking at the circumstances at the time the recordings were made, the court found the exception was satisfied. The investor had parted with $194,000, had genuine concerns it was lost through deception, and needed to preserve evidence of what the accused was telling him in circumstances where the accused was evasive and would not provide documentation. The court rejected the argument that the only permissible inference was that the investor always intended to hand the recordings to police, finding instead that his primary purpose was to protect his own financial interests by preserving evidence of those conversations.

On the section 138 question, the court proceeded on the assumption that even if a technical breach had occurred, the balance clearly favoured admission. The court noted the evidence was highly probative, the offences were serious, and the only likely impropriety was that the investor recorded the calls himself rather than lodging a complaint with police who might then have sought a warrant. The investor had acknowledged some awareness that his recording might not be lawful.

Weighing all factors under section 138(3), the court concluded the desirability of admitting the evidence outweighed the desirability of exclusion, and ruled the recordings admissible.

Orders Made

  • The recorded telephone conversations are admitted into evidence.

Key Takeaways

  • The District Court confirmed that section 5(3)(b)(i) of the Listening Devices Act 1984 involves an objective test, assessed against the circumstances existing at the time the recording was made, not the party's ultimate intentions for the recording.
  • A person who has parted with significant funds in circumstances suggesting fraud may satisfy the "reasonably necessary to protect lawful interests" exception when covertly recording the suspected wrongdoer, provided their purpose is genuinely self-protective rather than purely investigative on behalf of authorities.
  • The Court of Criminal Appeal's decision in Sepulveda v Regina [2006] NSWCA 379 was distinguished: that case involved a victim recording suspected historic offending, whereas here the investor was recording ongoing representations directly relevant to his financial loss.
  • Under section 138 of the Evidence Act 1995, even where a technical breach of the Listening Devices Act may have occurred, highly probative evidence of serious offending will generally be admitted if the nature of the breach is relatively minor, particularly where lawful means of obtaining equivalent evidence were available but uncertain.
  • Evidence obtained through private covert recording does not become automatically inadmissible in criminal proceedings; courts undertake a balancing exercise that weighs the probative value and seriousness of the alleged offending against the nature and degree of any contravention.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 138
- Listening Devices Act 1984 (NSW), ss 5, 5(3)(b)(i)

Cases
- Sepulveda v Regina [2006] NSWCCA 379