Regina v Le

(2004) 60 NSWLR 108; [2004] NSWCCA 82

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Listening devices
3. › Definition of 'listening device'
4. › Whether microphone alone constitutes listening device
5. › Microphone transmitting to separate recording equipment
6. › Whether component part of composite device is itself a listening device
7. › Listening Devices Act 1984 (NSW), s 3(1)
1. Criminal Law
2. › Listening devices
3. › Use of listening device
4. › Whether person carrying microphone 'uses' listening device
5. › Distinction between 'mere carrier' and active user
6. › Listening Devices Act 1984 (NSW), s 5(1)(b)
1. Criminal Law
2. › Listening devices
3. › Statutory defence
4. › Recording reasonably necessary for protection of lawful interests
5. › Whether defence requires showing conversation itself was necessary or only that recording of conversation was necessary
6. › Listening Devices Act 1984 (NSW), s 5(3)(b)(i)
1. Statutory Interpretation
2. › Criminal statutes
3. › Principle of strict construction
4. › Beneficial purpose of privacy protection legislation
5. › Uncertainty in reach of criminal offence provisions to be resolved in favour of alleged offender

Quick Take

A microphone that transmits to separate recording equipment is a 'listening device' under s 3(1) of the Listening Devices Act 1984 (NSW), even though it cannot record by itself (majority, Hulme J and Adams J; Giles JA dissenting). A person who carries a microphone for their own purposes of obtaining a recording is not a 'mere carrier' and 'uses' the device within s 5(1)(b). The proper question under the s 5(3)(b)(i) defence is whether recording the conversation was reasonably necessary, not whether having the conversation was necessary (Adams J; Giles JA and Hulme J held the contrary finding was open). The split on the definition question and the defence question leaves some uncertainty.