Paull v Queensland All Codes Racing Industry Board [2017 ...

CITATION: Paull v Queensland All Codes Racing Industry Board [2017] QCATA 92

PARTIES: Gregory Brian Paull (Applicant/Appellant)

v

Queensland All Codes Racing Industry Board (Respondent)

APPLICATION NUMBER: APL188-16

MATTER TYPE: Appeals

HEARING DATE: 14 February 2017

HEARD AT: Brisbane

DECISION OF: Justice Carmody

DELIVERED ON: 9 August 2017

DELIVERED AT: Brisbane

ORDERS MADE: IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1. Leave to appeal is granted.

2. The appeal is allowed to the extent that the decision of the tribunal made on 12 May 2016 in OCR 155-15 to refuse the application to exclude the listening device evidence is set aside and an order allowing the application is substituted insofar as it records a private conversation contrary to s 43 of the Invasion of Privacy Act 1971 (Qld) including, in particular, the audio at 9:56:24am to 9:58:28am.

CATCHWORDS: EVIDENCE – INTERLOCUTORY HEARING – ADMISSIBILITY – RECORDING OF PRIVATE CONVERSATION – MANDATORY EXCLUSION – where a conversation of the applicant with other third parties on a greyhound training course was recorded through the use of a listening device in alleged

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contravention of the Invasion of Privacy Act 1971 (Qld) – where the audio-visual recording was used in disciplinary proceedings brought against the applicant – where the applicant was sanctioned for engaging in live baiting practices and other related contraventions of the Greyhounds Australasia Rules 2015 – where the applicant sought external review of the adverse finding – where the respondent sought to rely on the audio-visual recording in the external review proceedings – where the applicant applied to have the audio component of the recording excluded on the basis of s 46(1) of the Invasion of Privacy Act – whether the recording was of a private conversation in contravention of s 43 of the Invasion of Privacy Act – whether disciplinary proceedings before the tribunal are ‘civil proceedings’ under s 46(1) of the Invasion of Privacy Act – whether s 46(1) of the Invasion of Privacy Act is a ‘rule of evidence’ which may be dispensed with by the tribunal.

EVIDENCE – INTERLOCUTORY HEARING – ADMISSIBILITY – EVIDENCE OBTAINED BY UNLAWFUL CONDUCT – DISCRETIONARY EXCLUSION – where the applicant applied to have the visual component of a recording of a private conversation excluded on the basis that it was obtained through the commission of a crime or civil wrong and the admission of such evidence would be contrary to public policy or unfair – where the tribunal refused to exclude the evidence of the conversation – whether the tribunal is vested with a discretion to exclude admissible evidence in civil proceedings for being forensically unfair or contrary to public policy – whether the tribunal should exclude the visual images of the recording by exercising any such discretion.

Acts Interpretation Act 1954 (Qld), s 14A Evidence Act 1977(Qld), ss 92, 95, 97 Legislative Standards Act 1992 (Qld), s 4 Queensland Civil and Administrative Tribunals Act 2009 (Qld), Ch 2 Pt 1 Div 3; Pt 2, ss 4, 43, 45, 46 Racing Act 2002 (Qld)

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Greyhounds Australasia Rules 2015, rr 86, 90 Racing Queensland Local Rules of Racing 2013, r 3A ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 281. Ball v Queensland All Codes Racing Industry Board [2016] QCA 369 Bropho v State of Western Australia (1990) 171 CLR 1 Carr v Western Australia (2007) 232 CLR 138 Coco v The Queen (1994) 179 CLR 427 David Syme & Co Ltd v Mather (1977) VR 516 Discoll v The Queen (1977) 137 CLR 517 Douglas v Hello! Ltd [2001] QB 967

Hartmann v Commissioner of Police (1997) 91 A Crim R 141

Jattan v Chief Executive, Queensland Health [2010] QSC 92 King v Bryant (No 2) [1956] St R Qd 570, 583. King v Greyhound Racing Victoria [2016] VCAT 701 Miller v Miller (1978) 141 CLR 119 Pearce v Butler (1985) 60 ALR 53 Pollard v R (1992) 176 CLR 177 Polycorpou v Australian Wire Industries Pty Ltd (1995) 36 NSWLR 49 Potter v Minahan (1908) 7 CLR 277 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 R v Belford and Bound [2011] QCA 43 R v Deputy Insurance Commissioner: ex parte Moore [1965] 1 QB 456

R v Henry [1992] QCA 336 R v Kay [2016] QDC (unreported, 1D109/16, 29 July 2016) R v Khan [1996] 3 All ER 289 R v McNamara (unreported, Victorian Court of Criminal Appeal, 14 June 1994, BC 940 1176) R v Regazzoli [1993] QCA 154 R v Senat (1968) 52 Cr App R 282 R v Shepard (1980) 71 Cr App R 120 The Queen v Swaffield (1998) 192 CLR 159 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479

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APPEARANCES and REPRESENTATION:

APPLICANT/APPELLANT G Paull (Self-represented)

RESPONDENT Mr J Horton QC and Mr D Purcell of Counsel instructed by Clayton Utz Lawyers

REASONS FOR DECISION

[1] The respondent is the regulator for greyhound racing in Queensland. It has responsibility for making and enforcing conduct rules with the assistance of officials, including stewards and a disciplinary board.

[2] As Thomas P noted in Queensland Racing Integrity Commission v Gilroy,1 the objects of the Racing Act and Rules include maintaining public confidence in racing, ensuring the integrity of all persons involved with racing, and safeguarding the welfare of animals.2

[3] The rule-making power is subject to s 4(3) the Legislative Standards Act 1992 (Qld) which is a provision that defines the concept of taking adequate account of individual rights and liberties in considering ‘fundamental legislative principles’. Moreover, statutes in a democracy are presumed not to encroach or curtail common law rights and freedoms unless they manifest a considered and definite intention to do so by “unmistakeable and unambiguous language”; 3 and, even then, are expected to adhere to the principles of legality, necessity or proportionality. The Racing Act 2002 (Qld) prevails over the rules to the extent of any inconsistency.

[4] It is a violation of rr 86(aa) and (af) of the Greyhounds Australasia Rules 2015 (GARs) for a licensed trainer to encourage greyhounds to run faster by getting them to chase a live animal tied to a lure as bait. So is witnessing and failing to report the grisly practice.

[5] The applicant is a licensed trainer that has applied to QCAT for external review of a 10 year disqualification for live baiting rule violations.

[6] Racing Queensland’s case rests on secret surveillance tapes said to show him knowingly engaging in live baiting on an unregistered private training track outside Ipswich in 2014.

[7] Specifically, the applicant is ‘heard’ talking about the cost of live lures compared with dead ones at 9:56:19 am (audio). At 10:00 am he is ‘seen’ in the proximity of a small marsupial moving on a lure (visual).

1 [2016] QCATA 146. 2 Racing Act 2002 (Qld) s 4. 3 Bropho v State of Western Australia (1990) 171 CLR 1, 18; Potter v Minahan (1908) 7

CLR 277, 304 (O’Connor J).

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[8] The audio-visual information was reportedly intercepted and automatically recorded by synchronised miniature electronic devices planted by unidentified and unauthorised animal rights activists. It was somehow copied onto videotapes, which eventually found their way into the hands of Racing Queensland officials after some of the footage was televised nationally on the ABC.

[9] There is no verifying witness and Racing Queensland relies solely on the tribunal’s evidentiary freedom to dispense with the rules of evidence, the appellant’s adoption of the tapes in the disciplinary board appeal proceedings or, if needs be, the statutory exceptions to documentary hearsay.

The internal proceedings

[10] Under GAR 90, stewards inquiring into a suspected breach of the Rules may ‘require’ any person associated with greyhound racing who, in their opinion, has relevant knowledge or information to give ‘evidence’ and answer questions as directed.

[11] The Oxford English Dictionary defines ‘evidence’ to mean:

Information, whether in the form of personal testimony, the language of documents, or the production of material objects, that is given in a legal investigation, to establish the fact or point in question.

[12] There is no express authority in the Racing Act or Rules authorising stewards to administer an oath or affirmation to witnesses, although a panel does have power to direct (compel) answers under the GAR 86(e).

[13] Ordinarily the privileges against self-incrimination and from exposure to civil penalties or property forfeiture are implied legal excuses for refusing to answer questions at investigative hearings. A professional disqualification on account of wrongdoing is unquestionably a penalty.4

[14] However, the availability of the privilege in the disciplinary jurisdiction is purely a question of statutory interpretation and depends on the effect of the relief or orders sought more the nature or purpose of the proceeding itself.

[15] In Pyneboard Pty Ltd v Trade Practices Commission5 the High Court held that immunities like the privilege against self-incrimination were ‘too fundamental a bulwark of liberty to be categorised simply as a rule of evidence applicable to judicial and quasi-judicial proceedings’ and could not be displaced without clear legislative intent.

4 Jattan v Chief Executive, Queensland Health [2010] QSC 92. 5 (1983) 152 CLR 328; cf the detailed discussion of implied abrogation principles in the

QCA in Nugent v Stewart [2016] QCA 223.

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[16] The Racing Act and Rules are silent on the excuses and immunities of witnesses or parties to internal investigative hearings into rule breaches.

[17] The applicant was summoned to attend a steward’s panel in 2015.

[18] He claimed privilege on most material matters and was not actually ‘directed’ to answer any specific question put to him.

[19] Presumably, if the applicant’s claim of privilege at the stewards inquiry was validly claimed (albeit misnamed) he was not liable to any disciplinary charge or penalty for invoking it and he would probably never have made the concessions Racing Queensland now invokes to verify the otherwise unauthenticated copies of the video-tapes it relies on to prove liability in the review.

[20] Be that as it may, the applicant was subsequently called on by Racing Queensland to show cause why he should not be disciplined for violations of GAR 86 (af) and (aa) on 20 August 2014, refusing to ‘give evidence’ to the stewards in breach of GAR 86(e), and ‘engaging in conduct detrimental or prejudicial to the interest, welfare, image, control and promotion of greyhound racing’ contrary to GAR 86(q).

[21] The regulator found that the listening device evidence ‘… appears to clearly show (the applicant) … used the live baiting of animals for a purpose connected with greyhound racing. The evidence and the findings of fact demonstrate that (the appellant), by his conduct, acted in a manner that amounted to an infringement of paragraphs (af), (aa), (e) and (q) of Rule 86 of GAR …’.

[22] The applicant was disqualified and warned off all racecourses for life. All his dogs were forfeited too.6 He appealed to the disciplinary board.

[23] Board appeals are by way of full rehearing. The procedures are at the discretion of the disciplinary board. It has the power to have witnesses examined on oath or affirmation, is not bound by the rules of evidence and can inform itself in any appropriate way provided natural justice is observed.

[24] In making submissions on his own behalf the applicant impliedly confirmed the accuracy of the video-taped evidence, but disputed any guilty inferences arising from it. He claimed that the audio was mere ‘banter and innuendo’ not meant to be taken literally and despite reasonable appearances to the contrary he believed the lures were ‘benign’; that is, the animals were already dead before being attached. His reliance on privilege was put down to an error of judgment based on bad legal advice.

[25] At T9:5-25 of the record of the board proceedings the applicant explained (apparently not under oath or on affirmation):

… I just wanted to reiterate the fact that in regards to the charges 1, 2 and 4, that Racing Queensland have brought

6 See Racing Queensland Local Rules of Racing 2013 (LR), r 3A.

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against me in regards to live baiting, I wanted to reiterate the fact that I went there (to the track) with the intention of trialling my dog just onto a benign lure. I asked the question when I did see an animal on the arm and I was told that it was definitely dead. As I said, I was totally under the impression that it was dead, from a lay point of view.

Given the letter that I received from the veterinarians, I wanted to use that, or to show that there’s no way that Racing Queensland can view that tape and say definitely that the animal was alive. So in that regard, I feel that the charges that they have brought against me as live baiting and using live animals to change the performance in a dog – a greyhound – was unjust. And I think without proof that I’d done that, it’s brought great shame to myself and to my family and people that I associate with. Basically I’m using that, as I said, to challenge those first charges.

In regards to charge 3, which entails that I refused to answer questions in the inquiry, I did fail to answer questions in the inquiry, but I did answer several questions. And as I mentioned to you before in regards to claiming privilege, I feel that I was just in doing so.

Today I’ve basically said to you that – and I wanted you to know also, sorry, that I feel that the solicitors were taking me in a direction I didn’t want to go. I’ve always been a person that people have held in high regard. I’ve always honoured – like, always thought of myself as a very honourable person, a very honest person, especially in my dealings throughout my life. It was a direction that they were taking me that I wasn’t happy to go and say - I saw the solicitors and said to them I wasn’t comfortable with the way they were taking me and I wanted to go in to an appeal by myself and basically put my case forward and explain to you the way that this has all transpired.

[26] The disciplinary board held that the appellant was not ‘entitled to act in such an unresponsive manner (at the stewards inquiry) regardless of what (legal) advice he had received… [h]e was a licensee and obliged to answer questions properly posed to him by stewards in the course of their investigations’ and went on to make the reviewable finding:

…from the evidence that has been supplied to the stewards and by way of video tape to this Board that (the appellant) was present at the time live baiting was being conducted on the premises in question and as a result thereof he is guilty of the charges…

[27] The penalty was reduced to disqualification for 10 years but the appeal against conviction was dismissed.

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QCAT merit reviews

[28] The purpose of a QCAT review of racing disciplinary decisions is to produce the correct and preferable decision in accordance with the QCAT Act and Racing Act by way of a fresh hearing on the merits. The reviewable decision may be confirmed, amended or set aside and replaced or returned to the decision-maker for reconsideration.

[29] A review tribunal ‘stands in the shoes’ of the original decision-maker and has all the same powers of the board not merely to correct error but to reconsider the reviewable decision, usually on the same but sometimes on additional or updated materials. It can but does not have to consider or give the same significance to the evidence relied on internally.

[30] The tribunal has the duty to produce the decision that should have been correctly reached in the first place by either confirming or changing the Board’s decision depending on its findings and inferences of fact. It performs this function by applying probability and deductive reasoning to all the logically probative information available to it.

[31] In conducting proceedings, the tribunal is ‘master of its own procedure’. It must ensure that contested issues are resolved with the benefit of all the relevant facts and apply the rules of natural justice, including giving a party a reasonable opportunity to call or give evidence, question witnesses and make submissions, but it is not bound by civil procedures or customary court practices. It is empowered to do whatever is necessary, incidental or convenient for exercising its jurisdiction and achieving the stated objects of conducting proceedings consistently with fairly dispensing justice and treating like case alike.7

The evidentiary decisions

[32] After the application for a QCAT review was filed and the tribunal was informed that Racing Queensland proposed to tender the video recordings into evidence the applicant objected to their admissibility. A pre-hearing proceeding was held to decide the issue.

[33] Counsel representing the applicant complained, in effect, that listening device evidence of the private conversation at 9:56:19 (the audio) is absolutely protected from disclosure in proceedings by the Invasion of Privacy Act 1971 (Qld) and the visual recording at 10:00 was liable to discretionary exclusion for illegality or unfairness.

[34] Similar evidence was admitted in R v Kay8 and King v Greyhound Racing Victoria9 but later rejected by a differently constituted QCAT tribunal in Ball

7 QCAT Act Ch 2 Pt 1 Div 3; Pt 2. 8 [2016] QDC (unreported) 1D109/16, 29 July 2016. 9 [2016] VCAT 701.

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v Queensland All Codes Racing Industry Board10 (Ball) for illegality and, alternatively, unfairness.

[35] The tribunal ruled that the Invasion of Privacy Act did not to apply to merit reviews because of the dislodgment of the common law rules of evidence by the QCAT Act and considered that neither the illegal origins of the tapes nor the applicant’s privacy rights, if any, overrode the overall public interest in the ethical regulation of the greyhound racing industry.

[36] The review tribunal’s ruling to admit all of the audio-visual footage evidence over the applicant’s objection is the subject of this application for leave to appeal and appeal.

The leave requirement

[37] The applicant repeats and relies on the original submissions made to the tribunal on his behalf as ‘legally sound’. He “feels” that they were not ‘fully considered’ or the consequences ‘fully understood’. He says that the fact that the evidence was obtained during the commission of an indictable offence warrants appellate reconsideration of the interlocutory decision.

[38] Permission to appeal interlocutory decisions on points of evidence and procedure is seldom given especially where discretions are at play and any error can always be identified and corrected by the review tribunal itself at any time before substantive rights or interests are finally decided, but this application raises important legal and mixed questions the appeal tribunal has not considered before which justify doing so now to help achieve the stated policy goal of consistency and predictability in future tribunal decisions at all levels. For this reason leave is granted.

[39] The first appeal issue is whether the Invasion of Privacy Act bars a witness from giving the audio evidence in the review proceedings. This is a matter of construction. There is only one legally right answer and no margin for getting it wrong. It is reasonably arguable that the tribunal made an error in construing the Act that needs to be corrected now rather than later to avoid undue prejudice during the hearing.

[40] The second is whether the tribunal is bound by discretionary principles or precedent to reject any or all of the footage because of how it was obtained. This depends on the degree of evidentiary freedom the tribunal has in the search for the correct and preferable merit-based solution, on the other hand, the practical content of the duty to act fairly in s 28(2) of the QCAT Act.

The Invasion of Privacy Act

[41] The Invasion of Privacy Act makes detailed provision for the licensing and control of credit reporting agents and private inquiry agents, for regulating the use of listening devices and for other purposes. It does what the

10 [2016] QCAT 369.

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common law refuses to do and protects some personal information against unauthorised interception and publication.

[42] In introducing the Bill the Minister for Justice described privacy as ‘… the most valued by civilised man’.

[43] He also said:

The right to privacy includes more than simply the right to be let alone. Its most important characteristic is the exercising of control over the number of participants in our communications – determining whether we wish our words locked away in a diary for no eyes but our own; restricted to conversation at dinner; or blazoned in the public media.

The claim to privacy is a matter of great and increasing importance, especially in an age of unbelievable technological resources and inventiveness. It is crucial that individuals and groups be able to protect themselves from unwarranted invasions of their privacy, as it is a commonly held and justifiable belief that a man without privacy is a man without dignity.

[44] Part IV sets out a detailed regime for the use of listening devices and the publication of private conversations recorded or overheard through their use.

[45] Section 43(1) of the Act prohibits the use of listening devices to overhear ‘private conversations’. It is not concerned with other classes of conduct or conversations. A person guilty of an offence under s 43 is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for 2 years. Importantly, the Invasion of Privacy Act does not exclude the original recording produced in contravention of s 43(1) alone but extends also to a transcript prepared from that recording, copies, and the second hand hearsay evidence of a non-party to the conversation who heard the recording.

[46] Section 43(2) provides a number of exceptions including provision for issuing a judicial warrant in aid of law enforcement, border protection, or national security. Other exceptions apply where the person using the device is a party to the conversation or unintentionally overhears a private conversation by means of a telephone.

[47] It is also an offence for a person to publish or communicate a private conversation that has come to his or her knowledge as a result of the illegal use of a listening device.

[48] Under s 45 not even a party to a private conversation (including a person who overhears or records it with implied consent) can publish it or any record of it without consent, except (a) to another actual or deemed party, (b) in the course of legal proceedings, (c) not more than reasonably necessary in the public interest, (d) in performance of a duty, (e) for the

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protection of his or her own lawful interests, or (f) to a person reasonably believed to have such an interest as to make publication reasonable in the circumstances.

[49] Section 46(1) states:

Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device used in contravention of section 43, evidence of that conversation may not be given by that person in any civil or criminal proceedings.

[50] The section denies illegal users the forensic fruits of unauthorised or unjustified electronic invasions of private conversation in litigation, but only in ‘any civil or criminal proceeding’.

[51] In other words, evidence of a ‘private conversation’ (but not unconnected actions) derived from the illegal use of a listening device cannot be proved in any civil proceeding by a witness with no independent knowledge of it. The effect of the rule is that any inadvertent admissions the appellant made in the private conversation are immune from disclosure in civil proceedings.

[52] A listening device is characterised in s 4 of the Act by its capability to overhear, record, monitor or listen to a private conversation.

[53] A video camera was held not to be a listening device in R v McNamara11 because the term was interpreted as being intended to refer ‘to sound…not sight signals’. Taking the same approach here, the identities of the parties to a private conversation are admissible, but not their words, and s 46 would not apply at all to the visual images.

[54] This is consistent with Ball where the tribunal held video evidence inadmissible under s 46 ‘… insofar as it contains the spoken word or conversation (the audio) …’. It is arguable, however, that the phrase “evidence of a private conversation” extends to its happening at all as well as its content and includes related gestures.

[55] However, Racing Queensland submits that the Invasion of Privacy Act has no functional role to play in racing reviews, primarily because, insofar as the audio is concerned, they are not ‘civil or criminal proceedings’ while the audio reproduced ‘very vocal’ self-incriminating comments and not a protected ‘private conversation'.

Private conversations

[56] Whether a set of facts meets a statutory description or definition is a facts dependant question of law. The audio record is protected only if it is, in fact, of a private conversation. Procedurally, therefore, as the proponent,

11 R v McNamara (unreported, Victorian Court of Criminal Appeal, 14 June 1994, BC 940

1176).

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Queensland Racing had to satisfy the tribunal that it was not a private conversation at least to a prima facie level.

[57] There must be more than conflicting inferences of equal force. Conjecture or surmise is not enough. If the available evidence is incomplete or inconclusive for this purpose, the tenderer fails and the benefit of any doubt given to the party opposing the tender.

[58] A conversation is ‘private’ under the Invasion of Privacy Act where ‘the circumstances indicate that the [parties] desire the words to be heard or listened to only by themselves or some other person’.

[59] A conversation is not ‘private’ in cases where the parties to it ‘ought reasonably to expect’ that it ‘may be overheard, recorded, monitored or listened to by some other person’ without their express or implied consent.

[60] In R v Henry 12 a police watchhouse keeper recorded a conversation between three arrestees in the same cell with an audio-visual device. The evidence was objected to as contrary to s 43(1) of the Invasion of Privacy Act and inadmissible under s 46. The Queensland Court of Appeal held that the evidence was admissible because two of the direct parties were prosecution witnesses and impliedly consented to the disclosure pursuant to s 46(2)(a) and, in any event, the conversation was reasonably likely or expected to be overheard.

[61] The review tribunal left the question of whether the videos record a ‘private conversation’ unresolved because the evidence was too equivocal or weak to support logical inferences about the desires, intentions, actual and implied consent and reasonable expectations of the parties.

[62] The statute posits a two stage test. The first inquiry is into whether ‘either’ participant subjectively ‘desires’ the conversation to be heard or listened to only by themselves and some other person? The second is whether they ought to have ‘reasonably expected’ that, despite their wishes, it might be heard by some other person, who does not have the express or implied consent of either of them. This is tested objectively.

[63] The content and place of a conversation are logically relevant to both questions but neither is decisive. Exchanges about personal affairs, health or finance will often indicate that privacy is intended even in public.

[64] In Australian Broadcasting Corporation v Lenah Game Meats Limited,13 Gleeson CJ relevantly observed in the context of an attempt to stop a television broadcast of covert film footage taken by animal liberation campaigners of licensed possum killing in a pet meat abattoir:

There is no bright line which can be drawn between what is private and what is not. Use of the term "public" is often a convenient method of contrast, but there is a large area in

12 [1992] QCA 336. 13 (2001) 208 CLR 199, [42] per Gleeson CJ.

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between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.

[65] The number of participants is also an obvious clue to the states of mind of the participants, such as intentions and desires, but may be too ambiguous. Plans for a bank robbery, for instance, are almost certainly intended to be kept quiet despite how many there are in the complicit group.

[66] The fact that the information had been selectively revealed to friends and professionals is not inconsistent with an ongoing and legitimate expectation of confidence. Here the applicant was talking to a select group of other trainers on private property discussing practices which they no doubt knew were highly contentious and generally disapproved of. They had no reason to suspect that what they said would be electronically overhead and shared by outsiders via listening devices concealed by unlawful entrants. ‘Banter’ or ‘innuendo’ is not sufficient to deprive a conversation’ of its private character. Nor, in the circumstances, is the volume of the discussions.

[67] As, in my opinion, the contrary inference is not reasonably open, , Racing Queensland is unable to establish as a fact that the tapes do not record a private conversation.

[68] The next question is whether the parties ought to have reasonably expected that the conversation might be overheard, monitored, listened to or recorded by some other person without their express or implied consent. This is tested objectively.

[69] The facts favouring the appellant include:

a) the conversations were on private property;

b) no other persons were within reasonable earshot of the conversation;

c) there were no other recording devices in the area, other than the concealed device; and

d) there is no evidence the participants gave express or implied consent to the presence of the recording device, or were aware of its presence.

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[81] Those against are :

a) the conversation was not just between two people, there were a number of people present;

b) the parties were talking over each other and loudly; and

c) the topics did not include personal affairs, health or finance.

[82] While the topic of a conversation may inform an inquiry into what parties to a conversation desire the same is not equally true of the process of inferring expectations about eavesdroppers.

[83] How the parties to a conversation behave is much more revealing about whether they should reasonably expect to be overheard or not than what they say. Bearing in mind that they were on private premises and reportedly ‘out of earshot’ of others, even quite loud conversations might not be reasonably expected to be overheard or published by strangers.

[84] In my view, the admittedly limited circumstantial evidence is incapable of supporting the conclusion that the appellant or anyone else privy to the conversation in issue ought to have reasonably expected that they would be overheard, electronically or otherwise.

[85] As it cannot be rationally inferred that the parties (a) did not desire the conversation to be confined to their group and remain private or (b) ought to have reasonably expected that their communications would be overheard or listened to, it cannot be reasonably concluded that the tapes do not record a ‘private conversation’.

[86] It follows that the review tribunal misapplied the law to the facts by not finding that Racing Queensland had failed to meet the mandatory admissibility threshold of satisfactorily demonstrating that (a) the tapes do not record a ‘private conversation’ and (b) the use of a listening device to record the private conversation did not contravene s 43(1) of the Act.

Civil or criminal proceedings

[87] Racing Queensland cannot give, or call a witness to give, the evidence of the private conversation in ‘civil or criminal proceedings’. The question is whether a QCAT disciplinary tribunal fits that description. Despite its regulatory nature and accusatory aspects the review is clearly not a criminal proceeding but may be a civil one.

[88] Whether a word or phrase in a statue is used in its ordinary or some technical sense is a question of law. Its ordinary meaning is a question of fact but which of its reasonably possible uses it was meant to have in the context of the statute (its legal effect) is a question of law.

[89] The text, subject matter, purpose and underlying policy of the statute are all important considerations in characterising a type of proceeding. So too is

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the jurisdiction and function of the decision-making body called upon to apply it.

[90] For some reason the draftsperson chose not to define the phrase ‘civil proceeding’, leaving its intended meaning to be ascertained without giving any clues as to whether, for s 46 purposes, it was supposed to have its ordinary meaning, or some narrower and more technical legal meaning.

[91] As in all cases of genuine ambiguity, neither proposed interpretation is incontestably correct or incorrect. The tribunal must prefer the interpretation that will best achieve the purpose of the Invasion of Privacy Act.14

[92] The New South Wales Court of Appeal held the expression ‘civil or criminal proceedings’ in Hartmann v Commissioner of Police15 was ‘intended to encompass the full category of possible future proceedings’ and was wide enough to include an investigative inquiry and a related appeal notwithstanding their administrative rather than judicial character.

[93] Hartmann was a police discipline case about the admissibility of self-incriminatory statements made under statutory compulsion at a corruption commission hearing conditioned on future use immunity.

[94] The police disciplinary tribunal held that it would be ‘absurd’ for it not to require ‘…a police officer who earlier gives an untruthful or inconsistent account of his conduct … to reveal this to (the body)… responsible for making a final assessment, inter alia, of his integrity’. It was arguably incompatible with (the tribunal’s) protective responsibilities to exclude from its deliberations on the question of the appellant's fitness or otherwise to return to the police service consideration of sworn testimony given by him on an earlier occasion about the very conduct which gave rise to his provisional dismissal’.

[95] The reasoning of the Court of Appeal in Hartmann was applied by the tribunal in Ball. In that case, the Member held that had the legislature intended the words ‘civil or criminal proceedings’ to be read narrowly so as to exclude administrative or disciplinary proceedings, it ‘could have enacted a restricted definition of ‘civil proceedings’’.

[96] This reasoning is sometimes criticised by textbook writers, but I find it compelling. It is highly improbable that the legislature wanted to protect private conversations from intrusion through the use of covert listening devices in civil claims or criminal prosecutions, but not in administrative proceedings.

[97] The phrase ‘civil proceedings’ cannot be ascribed standard form and content. It derives its meaning from its context. Given the protective purpose of s 46 of the Invasion of Privacy Act, it is appropriate to construe ‘civil proceedings’ to include administrative and disciplinary proceedings.

14 Acts Interpretation Act 1954 (Qld), s 14A(1). 15 (1997) 91 A Crim R 141, 147.

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This does not unduly strain the natural and ordinary meaning of the phrase, and best achieves the objects of the statute.

[98] Racing Queensland submits that s 46(3) confers a power on courts to make orders forbidding the publication of evidence in proceedings referred to in s 46(2)(c). As the power is only conferred to ‘courts’, rather than courts and tribunals, Racing Queensland submits that s 46(1) should be construed as only precluding the use of evidence of a private conversation recorded in contravention of s 43 in civil or criminal proceedings before a court.

[99] This submission is misconceived. A precondition to the use of the power conferred under s 46(3) is that the proceedings must be of a kind described in s 46(2)(c). Section 46(2)(c) refers to ‘proceedings for an offence against’ the Invasion of Privacy Act. As such proceedings would always be of a criminal nature, they would invariably be brought before a court. It would have been inutile and unnecessary for the legislature to have extended the scope of s 46(3) to encompass courts and tribunals. Accordingly, s 46(3) of the Invasion of Privacy Act does not justify the imposition of artificial limitations on the otherwise general language of s 46(1).

[100] The artificial construction urged by Racing Queensland would also lead to forum shopping and legal complexity. This is because a party would be deprived of the protection of s 46(1) merely because he or she commenced proceedings in QCAT, rather than in the Magistrates Court. Such an absurd result militates against the construction advanced by Racing Queensland.

[101] The better view is that s 46(1) should be construed in accordance with its natural and ordinary meaning, having regard to the purpose of the Invasion of Privacy Act. Nothing in the text of s 46(1) indicates that Parliament intended it to be limited to proceedings before a court. Importing such a requirement into s 46(1) would not assist that section in achieving its objectives. Therefore, s 46(1) of the Invasion of Privacy Act should be interpreted as applying to proceedings before courts and tribunals.

[102] Racing Queensland also submits that because QCAT is not bound by the rules of evidence16 it may admit the recording of the private conversation notwithstanding s 46(1) of the Invasion of Privacy Act. This was accepted by the tribunal at first instance.

[103] However, as King v Bryant (No 2)17 makes clear :

if the Legislature has forbidden the use of certain evidence, the court cannot treat it as evidence, even if admitted without objection and logically relevant to the issues… if a party tenders evidence not forbidden by statute but inadmissible under the ordinary rules of evidence, and the other party stands by and lets it in without objection, that other party

16 QCAT Act, ss 28(3)(b) and (e). 17 King v Bryant (No 2) [1956] St R Qd 570, 583.

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cannot be heard to attack the decision because of its reception so long as the evidence so admitted was relevant.

[104] A distinction is drawn between: (a) evidence which is excluded under the rules of evidence; and (b) evidence the admission of which has been forbidden under statute. In my view, a statutory proscription against the admission of specific evidence cannot be described as a mere ‘rule of evidence’ according to the proper meaning of that phrase.

[105] It also follows from the separation of powers and doctrine of parliamentary supremacy that where the legislature has forbidden the admission of certain evidence, a court or tribunal cannot elect to dispense with or displace it without such power being conferred by the legislature.

[106] Section 28(3)(b) of the QCAT Act states that the tribunal is ‘not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures’. Section 46(1) of the Invasion of Privacy Act is not a mere rule of evidence, nor is it a ‘practice’ or ‘procedure’ applying to courts of record. Therefore, s 28(3)(b) of the QCAT Act does not permit the tribunal to dispense with s 46(1) of the Invasion of Privacy Act.

[107] In R v Regazzoli18 the Court of Appeal queried if the sweeping mandatory effect of s 46(1) was a defect in drafting rather than a deliberate legislative policy because it does not allow the court to overlook minor breaches in major criminal cases where the evidence is compelling and the public interest in conviction is strong but left the question open.

[108] Coco v the Queen19 is a good example. In that case the High Court excluded damaging evidence in a bribery case recorded by a listening device illegally installed on private premises by undercover police who did not know it the warrant they were acting under was invalid to the extent that it purported to deny of the suspects rights as a landowner to refuse entry to trespassers and who quashed the conviction because there was no other evidence.

[109] If there was ever a good reason for admitting the sort of evidence s 46(1) of the Invasion of Privacy Act excludes, stamping out the deplorable practice of live baiting to train greyhounds run faster for money at the expence of defenceless smaller animals would be it. However, the section does not provide any residual discretion to admit evidence of the private conversation recorded in contravention of s 43 into evidence.

[110] It follows that the review tribunal:

a) erred in fact and law by finding that the use of a listening device to record a private conversation between the applicant and other persons did not constitute a contravention of s 43(1) of the Invasion of Privacy Act; and

18 R v Regazzoli [1993] QCA 154, [1]. 19 (1994) 179 CLR 427.

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b) erred in law in admitting the audio component of the audio-visual material which was evidence of the private conversation, contrary to s 46(1) of the Invasion of Privacy Act.

[113] No doubt, this is a discouraging result from the point of view of animal welfare and racing integrity. It will probably mean that live baiting and other iniquitous activities may go unpunished and be even harder to detect, but that it seems to me, is the inescapable effect of the statute which has to be followed to the letter and given practical expression by the tribunal.

[114] The general law still needs to be considered in case I have mischaracterised the meaning and effect of statutory words or phrases and s 46(1) of the Invasion of Privacy Act does not apply or can otherwise be dispensed with.

Admissibility

[115] The tribunal is required by s 28(3) of the QCAT Act to ensure that it has all relevant information needed to make a decision. In fulfilling this demanding self-informing inquisitorial-based responsibility, it can access any reliable source and does not have to adopt (or adapt) the restrictive practices and rules of evidence applied in the court system. However, the conventional practice is the higher the stakes and more accusatory the process the more adversarial and exacting the procedures should be for deciding what information is acceptable for finding facts.

[116] The regulator claims, in effect, that the tapes are virtual ‘eye witnesses’ to the applicant’s disciplinary breaches. In evidentiary language they are copy documents capable of proving any stated fact under the common law rules of evidence if the author or witness with direct knowledge personally identifies and vouches for them or the affected party voluntary (that is willingly and not inadvertently or forcibly) admits or adopts them as true.

[117] Otherwise, they are inadmissible for the purpose of proving what it records unless exempted by Part 6 of the Evidence Act 1977(Qld) from the absolute ban on second hand documentary hearsay.

[118] Section 97 provides that where any statement of fact in a document (including video tape recordings and sound tracks) is proposed to be given in evidence by virtue to that part it may be proved by production of the original or copy of a material part of it, authenticated in such manner as the court or tribunal approves. Even if a document meets the statutory admissibility conditions there is a specific discretion in s 98 to reject the statement of fact if for any reason it appears in the interests of justice to admit it.

[119] A documentary statement produced by a device tending to establish a relevant fact is admissible in evidence under s 95 of the Evidence Act only if it is certified by ‘a responsible person’.

[120] Section 92 facilitates the proof of a statement in civil proceedings admissible on condition that oral evidence of it is permitted, the maker gives evidence

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or cannot ‘with reasonable diligence’ be found or identified or is not liable to cross-examination.

[121] The weight of written hearsay depends on all the circumstances, including its contemporaneity and whether the author or supplier has direct knowledge and any incentive to falsify or conceal the facts.

[122] Video tapes may, of course, also be proved simply by production in tribunal proceedings, but it would seldom be fair or just to allow and act on anonymous hearsay in disciplinary proceedings where, as here, a regulator has the onus of proving contested liability facts to the standard of reasonable satisfaction.

[123] Eavesdroppers, snoops and snitches were occupational hazards for the criminal classes well before the advent of modern electronics and ‘… evidence is admitted daily which results from what people would say is really outrageous conduct, in the sense of being an invasion of privacy - namely conduct spying through peep holes, climbing up and looking through windows, fixing speaking apparatus, recordings and so on.’20

[124] In R v Khan,21 for instance, a damning conversation about international drug smuggling was overheard by a bugging device concealed on the outside walls of the home of a suspect.

[125] The appellant did not contest the truth of the tape but challenged its admissibility on invasion of privacy grounds based on international human rights. The prosecution admitted that the bugging was unauthorised and installing the devices technically constituted a civil trespass.

[126] The House of Lords unanimously dismissed the appeal against conviction because statute aside there is nothing intrinsically unlawful about invading privacy to passively overhear and repeat unguarded comments and common law does not protect private information from disclosure unless it was confidential or privileged.

[127] In Heery v Criminal Justice Commission22 an order for the destruction of unauthorised listening device evidence of both confidential conversations and privileged communications in advance of a prosecution for perjury.

[128] There is no suggestion that the recorded data is privileged.

[129] The pre-publication protection of confidential communications or correspondence at risk of unauthorised disclosure was held by the High Court in Lenah Game Meats23 to extend to ‘… illegal records of genuinely

20 R v Senat (1968) 52 Cr App R 282, 286-287. 21 [1996] 3 All ER 289. 22 [2001] 2 Qd R 610. 23 Australian Broadcasting Corporation v Lenah Game Meats Limited (2001) 208 CLR 199.

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private conversations (not merely those engaged in on private property) restricted to a group or zone to which the defendant does not belong.’24

[130] Gleeson CJ held that even if an enforceable legal or equitable right had been asserted by the company the implied constitutional freedom of discussion stood in the way of a grant of injunctive relief. His Honour suggested that illegally or surreptitiously obtained footage was capable of being confidential information if it was private enough.25 In such a case, he said, the law would protect ‘what might reasonably be called a right to privacy’ via an action for breach of confidence where there is no public interest defence or justification26 but only if the activity was ‘some private act’ (not merely engaged in on private property) (e.g. a private wedding27 or matters restricted to a group to which the defendant does not belong).28

[131] His Honour also acknowledged that covertly recorded audio visual footage of private activities might give rise to a duty of non-disclosure on the persons who recorded them and those into whose possession it came, if they knew, or ought to have known, how they were obtained29 but did not accept the invitation to support or declare the existence in modern Australian law a tort of invasion of privacy, which would have been contrary to long-standing authority.30

[132] Kirby J acknowledged a power to restrain the use of information secretly or improperly obtained by a trespasser or other tortious means where it would be ' unconscionable ' to do so.

[133] The appellant does not assert that the content of the videotapes is (or was ever) confidential, and even if it was it has since been publicly broadcast on television and cannot now be recalled and cancelled.

[134] The tribunal was right to hold that the videos are legally admissible and not immune from disclosure at common law despite any breach of private property or personal privacy rights because their contents are neither confidential nor privileged and while disclosure may be highly embarrassing and even incriminating cannot be said to be ‘unconscionable’.

Discretionary exclusion

[135] The applicant submits that the tribunal erred in refusing to exercise its discretion to exclude the video evidence on the basis that the admission of the evidence would be unfair or contrary to public policy.

24 Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 281. 25 Australian Broadcasting Corporation v Lenah Game Meats Limited (2001) 208 CLR 199,

[34]-[35]. 26 cf Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804, 807. 27 Douglas v Hello! Ltd [2001] QB 967. 28 Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 281. 29 Australian Broadcasting Corporation v Lenah Game Meats Limited (2001) 208 CLR 199,

[39]. 30 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479.

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[136] There is no residual discretion to reject admissible evidence solely because of how it was obtained but any category of evidence can be rejected at common law for illegality or police misconduct (public policy discretion) or if, for any reason, the strict rules of admissibility would put the defendant at an unfair forensic disadvantage to the point of jeopardising basic fair hearing rights (fairness discretion).31

[137] The unfairness discretion is a shield against unacceptable risk of injustice either because the adjudicative process is somehow compromised or procedural rights have been infringed.

[138] The public policy discretion is only aroused where evidence is obtained by illegal or improper law enforcement or prosecutorial conduct.

[139] Though conceptually different the judicial discretions are complementary and often overlap in practice especially in the context of undercover operations to ensure a fair trial and protect the integrity of the administration of criminal justice by the courts from being ‘demeaned by the uncontrolled use of the fruits of illegality in the judicial process’.32

[140] Swaffield33 is the most recent High Court example. In that case, a defendant

being investigated for suspected drug dealing admitted to an undercover agent previous property offences he had never been tried on. The conversation was lawfully but covertly recorded. There was no doubt about the voluntariness and reliability of the admissions. He initially failed to have the recordings excluded for breach of his right to silence but his conviction was quashed in the High Court because the police agents level of participation was ‘the functional equivalent of an interrogation and involved the exploitation of special characteristics of the relationship that had developed between the parties.

[141] Although they have been held to be of broader application34 the decided cases dealing with the overall fairness or institutional propriety of admitting illegally obtained evidence to use in proof of disputed litigation facts are almost entirely criminal and they do not apply to civil litigation as strictly or in the same way as they used to before the demise of the civil jury and they almost certainly have no role in a disciplinary review regardless of whether the rules of evidence are followed or not.35

31 Discoll v The Queen (1977) 137 CLR 517, 541. 32 Pollard v R (1992) 176 CLR 177 per Deane J at 202-203; Swaffield v The Queen (1998)

192 CLR 159. 33 The Queen v Swaffield (1998) 192 CLR 159; Carr v Western Australia (2007) 232 CLR

138; cf. R v Belford and Bound [2011] QCA 43. 34 cf Miller v Miller (1978) 141 CLR 119 (a family law dispute) and WRCC v York Civil Pty

Ltd [1997] SWAT 22 (a personal injuries action). See too, Pearce v Butler (1985) 60 ALR 53 per Pincus J and Lander J saw no objection in principle why evidence cannot be excluded in civil proceedings because of how it was obtained in SECL (in Liq) v Bond (2001) 78 SASR 70.

35 Polycorpou v Australian Wire Industries Pty Ltd (1995) 36 NSWLR 49; David Syme & co Ltd v Mather (1977) VR 516; Miller v Miller (1978) 141 CLR 119.

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[142] Natural justice (or procedural fairness) has developed its own specific principles for ensuring hearing fairness36 in administrative settings.

[143] Plainly, any meaningful assessment of whether the risk of an unfair hearing depends on the circumstances of the case, including the course and quality of the evidence generally. The nature of the issues and the consequences of adverse findings of fact, the significance of the disputed evidence, whether the affected party gives evidence and, if so, the extent of cross-examination and the independent reinforcing effect of other corroborative material.37

[144] Any residual discretion to ignore relevant information derives from the obligation to conduct tribunal proceedings fairly consistently with the rules of natural justice not by analogy to the judicial procedures and practices of the courts developed in different contexts for different purposes.

[145] The tribunal plainly has power to protect the integrity of its processes by staying or dismissing proceedings dependent on evidence tainted by “outrageous” illegality or incurable unfairness such as where the veracity of a document that cannot be effectively tested by the defence .

[146] Alternatively, a binding declaration could have been sought under s 60 QCAT Act to the effect that Racing Queensland was not entitled to rely on the applicant’s adoption of the tapes because it is inadmissible having been induced by racing official who mistakenly believed that he was guilty of an offence against GAR 86(e) when he might not have been because he had a valid excuse for not giving incriminating answers to investigative questions.38

[147] A stay is arguably the preferable remedy because it allows the interests of the defendant and the community to be compared and not circumvented by appealing a discretion to exclude the evidence concerned only on the rights of the defendant and does not have regard to the overall public interest.39

[148] The common law exclusionary discretions are not engaged here at any rate because the cameras were secreted by unlicensed private investigators, not racing officials, and the appellant was deprived of his privacy, not a legally protected fundamental freedom or due process right equivalent to the right of silence.40

[149] Accordingly, the admission of the evidence of those private conversation does not itself condone any tort or crimes responsible for recording the

36 R v Deputy Insurance Commissioner: ex parte Moore [1965] 1 QB 456, 488. 37 Compare the comments in R v Shepard (1980) 71 Cr App R 120 about the admissibility

of prior conviction. 38 Jattan v Chief Executive, Queensland Health [2010] QSC 92. 39 Police v Dunstall [2015] 256 CLR 403, 434. 40 Although, it has long been the case in criminal trials that a document adopted under

compulsion and, arguably, or as appears to have happened here the involuntary (or impropriety induced) waiver of the privilege in an investigative proceeding may be excluded as a matter of fairness or public policy: Discoll v The Queen (1977) 137 CLR 517, 541.

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private conversation, or that it would encourage a regulator to disregard the law in the future.

[150] There is no reason to question the reliability of the audio-visual material. The applicant can expect to be given the opportunity to explain, refute, criticise, contradict or discredit the material. As long as the tribunal is reasonably satisfied as to the authenticity of the video tapes (which it should be circumspect about) unavailability of any verifying witness to cross-examine is a matter going more to the weight than admissibility.

[151] There is a troubling collateral risk of unfairness in placing too much reliance on unverified second hand video documents and their adoption by the appellant where he had initially (arguably validly) claimed privilege and already (perhaps wrongly) penalised by Racing Queensland for doing so but that is a matter for the tribunal to consider and decide.

[152] Even if it did involve the tribunal and the parties acting on a wrong principle of law the exercise of discretion to include the audio-visual material into evidence was not plainly or manifestly wrong and does not resolve the

parties’ substantive rights and interests.

[153] Accordingly, the tribunal did not commit discretionary error by declining to exercise its discretion to exclude the evidence mentioned in [7] above. It is not open to the appeal tribunal to interfere even if it disagrees.

Orders

1. Leave to appeal is granted.

2. The appeal is allowed to the extent that the decision of the tribunal made on 12 May 2016 in OCR 155-15 to refuse the application to exclude the listening device evidence is set aside and an order allowing the application is substituted insofar as it records a private conversation contrary to s 43 of the Invasion of Privacy Act 1971 (Qld) including, in particular, the audio at 9:56:24am to 9:58:28am.