Citation: R v Bloodsworth; R v Errington (No 2) [2017] NSWSC 1483
Court: Supreme Court of New South Wales
Date: 23 October 2017
Judge(s): Adamson J
Background
Two accused, referred to here as Bloodsworth and Errington, stood trial for the murder of Errington's half-brother, alleged to have occurred between 28 and 30 August 2015. The Crown case was that the pair acted in a joint criminal enterprise to cause grievous bodily harm to the deceased, resulting in his death.
A Crown witness named Chris Barbara had a mobile phone application that automatically recorded calls made and received on his device. The disk containing those recordings captured several conversations between Barbara, Errington, and in some calls, Bloodsworth, in the period immediately after the death and before the pair's arrest at Central Station on 31 August 2015.
Counsel for Errington applied to have the recordings tendered in the Crown case. The Crown had declined to tender them, citing concerns about illegality and relevance. Counsel for Bloodsworth opposed admission. Adamson J resolved the dispute in a ruling delivered on the sixth day of trial.
Legal Issues
- Whether the recording of the telephone calls constituted an unlawful interception under the Telecommunications (Interception and Access) Act 1979 (Cth), or alternatively under the Surveillance Devices Act (NSW)
- Whether, as between the two accused, some or all recordings were unlawfully obtained
- Whether the unlawfully obtained recordings should nonetheless be admitted under section 138 of the Evidence Act 1995 (NSW), having regard to the balancing exercise between probative value and the undesirability of admitting illegally obtained evidence
- Whether admission of a reference in the recordings to Bloodsworth requesting "crack" would cause unfair prejudice to her under section 137 of the Evidence Act
Decision
Issue 1: Which law governs telephone interception, and were the recordings unlawful?
The court confirmed that a recording made by an application internal to a mobile telephone constitutes an "interception" within the meaning of section 6(1) of the Telecommunications (Interception and Access) Act 1979 (Cth). Following the High Court's reasoning in Miller v Miller (1978) 141 CLR 269 about the relationship between the Commonwealth and NSW statutory predecessors, the court held that the Commonwealth Act covers the field of telephone interception, leaving no room for the Surveillance Devices Act (NSW) to operate (at [14]).
Issue 2: Were the recordings lawfully or unlawfully obtained?
The interception prohibition does not apply where all parties to the communication know it is being recorded. The court found that Barbara knew (he was using his own phone), and that Errington also knew, having been told about the recording application (at [12]). Bloodsworth, however, had no knowledge that the phone was capable of recording calls (at [13]). Accordingly, the court found that calls 7, 28 and 31, to which Bloodsworth was a party, were unlawfully obtained, while calls 8, 17, 29, 30 and 32 were not unlawful (at [13]).
Issue 3: Should the unlawfully obtained recordings be admitted under section 138?
Adamson J conducted the balancing exercise required by section 138 of the Evidence Act and was satisfied that the desirability of admitting the recordings of calls 7, 28 and 31 outweighed the undesirability of their admission (at [26]). The recordings had substantial probative value: they provided a contemporaneous, unmediated window into the relationship between the two accused in the hours after the death, showing their continuing co-operation, their plan to flee, and the assertiveness of Bloodsworth in demanding action from Errington (at [25]). The court noted that the contravention was not deliberate in any meaningful sense: Barbara had not activated the application to capture evidence, and Errington had been told about it (at [24]). The illegality was therefore characterised as relatively insignificant and not comparable to a deliberate breach by an investigating authority (at [25]).
Issue 4: Unfair prejudice to Bloodsworth from the drug reference
Call 7 contained a request by Bloodsworth for "crack." Counsel for Bloodsworth argued this was unfairly prejudicial under section 137 of the Evidence Act. The court rejected that submission, finding no appreciable danger of unfair prejudice because the trial already contained substantial evidence of Bloodsworth's regular ice use and of Errington supplying her (at [27]). The court further noted that the drug dependency evidence could actually assist Bloodsworth by offering an innocent explanation for why she remained with Errington and travelled with him toward Queensland (at [27]).
Orders Made
- Evidence of recorded telephone conversations admitted.
Key Takeaways
-
An application internal to a mobile telephone that records calls constitutes an "interception" within the meaning of section 6(1) of the Telecommunications (Interception and Access) Act 1979 (Cth), provided not all parties to the conversation knew the recording was occurring (at [11], [13]).
-
The Commonwealth Act covers the field of telephone interception, and the Surveillance Devices Act (NSW) has no room to operate where the Commonwealth statute applies: the Supreme Court confirmed this follows directly from the High Court's reasoning in Miller v Miller (at [14]).
-
Under section 138 of the Evidence Act, recordings can be admissible despite unlawful interception where the contravention was inadvertent rather than deliberate, and where the evidence has substantial probative value, particularly when it is uniquely contemporaneous with the events in issue (at [24]-[26]).
-
The probative value of recordings capturing tone, assertiveness, and real-time co-operation between co-accused was held to be substantial in a joint criminal enterprise case, where the Crown bore the burden of excluding an innocent hypothesis about one accused's participation (at [23], [25]).
-
No appreciable unfair prejudice arose under section 137 from a drug reference in the recordings where equivalent evidence of drug use was already extensively before the jury, and where the same evidence could serve an exculpatory purpose for the accused (at [27]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 137 and 138
- Listening Devices Act 1969 (NSW)
- Surveillance Devices Act (NSW), s 7
- Telecommunications (Interception and Access) Act 1979 (Cth), ss 6 and 7
- Telephonic Communications (Interception) Act 1960 (Cth)
Cases
- Clyne v Bowman (1987) 11 NSWLR 341
- Miller v Miller (1978) 141 CLR 269