Barrister and solicitor were parties to secret recording of mobile phone conversation while a trial was in progress ... Impropriety ... Application to tender recording rejected ... Breach of Surveillance Devices Act and Evidence Act ... Alix Piatek reports
Fish shop case and improperly recorded phone conversation
NSW Dizzo Court Judge Philip Taylor had some strong things to say about the roles of a solicitor and a barrister in what purports to be the illegal recording of a mobile phone conversation.
"The gravity of the impropriety of the secret recording is increased by the circumstances of this case in that it involved counsel and solicitor and it involved an impropriety in relation to the administration of justice as it concerned proceedings then being heard."
Sydney barrister Robert Newell and solicitor Leonardo Murintini acted for Serge Wachtenheim and his company, who were sued by De Costi Seafoods and the De Costi franchise operation for monies owed by a Dee Why fish shop.
The trial ran for 75 days and De Costi was successful in the main claim and defeated a cross-claim alleging damages for misleading conduct.
The defendants/cross-claimants sought to tender a recording of a mobile phone conversation between a witness, David Shnider, and barrister Newell (second floor Wentworth).
Shnider was giving evidence in-chief at the time the application was made.
The phone conversation took place in a District Court conference room in John Maddison Tower six weeks into the trial.
There were a number of people present, including Wachtenheim, James Turner (a witness), solicitor Murintini and Murtini's wife, Faith.
Wachtenheim made the call to Shnider and after they had spoken briefly he handed the phone to Newell.
According to Turner's affidavit Wachtenstein said:
"David I am here with my barrister and solicitor and with some other people. Robert wants to speak to you. David, do you mind if I put you on loudspeaker so we can all hear you, is that alright with you?"
An unidentified person in the room said:
"It might be good if we made notes of what David is saying."
Turner recorded the conversation on his Samsung S2. When the recording was finished Wachtenstein downloaded the conversation from the mobile phone to his digital recorder.
Judge said witness not told he was on speakerphone
Judge Taylor rejected the application to tender the recording. He accepted Shnider's evidence that he "lacked trust in Mr Newell and Mr Muriniti".
Neither Newell nor Muriniti gave evidence, which the judge described as "significant".
Shnider said that he did not know that he was on speakerphone.
The judge said:
"In all these circumstances, I am not persuaded that the recording happened on a whim of Mr Turner. The circumstances (and the unexplained absence of any evidence from Mr Newell, Mr Muriniti or Mr Wachtenheim) persuade me that the matter was planned before the call was made, and that Mr Newell, Mr Muriniti and Mr Wachtenheim were all aware of the plan. I prefer Mr Shnider's evidence, and accept that he was not told about, and did not consent to, either the mobile phone being on loudspeaker or that 'other people' were able to hear the conversation."
Stephen Stanton, for De Costi, pointed out that Turner was still under cross-examination and should not have been present discussing evidence with the cross-claimants.
Wachtenheim had not yet given evidence and he too should not have been having discussions with a witness.
Taylor DCJ agreed:
"The impropriety of counsel and solicitor in having Mr Turner and Mr Wachtenheim present at the time of the conversation with Mr Shnider on loudspeaker is a basis for exclusion."
He found that the conversation constituted a breach of s.7 of the Surveillance Devices Act NSW for recording a private conversation; and that both Newell and Muriniti acted improperly in allowing Turner and Wachtenheim to hear the conversation and record it without Shniders' consent, both a breach of s.138(1) of the Evidence Act NSW.
However, he didn't think that any remedy would be likely in respect of the "inappropriate conduct".
The application to tender the conversation was rejected during the trial last year, but the reasons have just been published (May 3).