A Current Affair has a good chance of avoiding conviction over alleged breaches of the Listening Devices Act, a surveillance expert has told Crikey. But the hidden camera exposé — a staple of tabloid TV — continues to highlight the destruction of journalism ethics in the race for an exclusive.

Hot on the heels of the controversial Hey Dad! scoop, the show’s reporter Ben Fordham and producer Andrew Byrne are facing the Supreme Court this week over allegations they illegally recorded and broadcast a conversation with former Waverley mayor James Markham.

The court has heard the pair used a “tricked up” Channel Nine car to capture an audio and visual recording of Markham ordering a “hit” on a male prostitute. They also learned Fordham dressed up as a hit man in order to obtain the confession, which was subsequently broadcast on May 28 and 29, 2008. In order to establish any wrongdoing, the court is viewing edited and unedited footage of the incident.

Based on the intricacies of the legislation, Warren Mallard — a private investigator with 28 years of experience — believes Fordham and Byrne may have a good chance of beating the rap.

“I can see what they’ve done because they’ve cottoned on to a very good story,” Mallard told Crikey. “Ben has seen the story and thought; ‘if I can get this evidence on video and audio, the police are going to love that’.”

Mallard, the managing director of Lyonswood Investigations and Forensic Group, says it will be the audio recording that the court will be interested in, not the video.

“With sound devices, it is very, very clear about the definition of when you can and can’t record. For a start you must be a party to the conversation and have lawful intent,” he said.

Mallard believes Fordham and Byrne could argue they were party to the conversation, as they spoke with Markham in person about the “hit”. However it is the question of “lawful interest” which may decide whether the pair will be found guilty on the matter. Crown prosecutor John Pickering argued their only interest in speaking with Markham was to “create a good story”.

Under the Listening Devices Act, devices may not be used to record conversations unless they are used in lawful interest. However, just what is and what isn’t lawful interest is a grey area and difficult to define.

“They can argue that their interests were lawful. As well as an intent to run the story, I’m sure they would have wanted to get a confession and hand it over to the authorities,” Mallard said. “[Fordham’s] lawful interest was that he had become aware of something that was illegal and he wanted to deal with it.”

The case raises more questions about the conduct of ACA, regardless of the verdict. The Media Alliance code of ethics states journalists must “use fair, responsible and honest means to obtain material. Identify yourself and your employer before obtaining any interview for publication or broadcast”.

A guilty verdict could alter how tabloid television programs use listening devices in the future, with the serious deterrent of criminal conviction hanging over the heads of reporters.

Fordham has been no stranger to controversy during his career, having covered everything from the scandals of the Catholic Church to the Bingle-Clarke split. He alluded to the hits he has taken as a tabloid television journalist on his Twitter account on Monday, commenting that “a few bruises never hurt anyone, I have the scars to prove it.”

In a conversation with Crikey, Fordham wisely chose to stay off the record. The court case continues.