R v EP
[2019] ACTSC 89
•29 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v EP |
Citation: | [2019] ACTSC 89 |
Hearing Dates: | 15, 17, 24, 25 October 2018 |
DecisionDates: | 15, 29 October 2018 |
ReasonsDate: | 4 April 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [18]; [46]. |
Catchwords: | CRIMINAL LAW – EVIDENCE – application for leave to cross-examine the complainant on prior sexual activities – operation of s 51(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – whether leave required CRIMINAL LAW – EVIDENCE – admissibility of covert audio recordings – whether the recordings were unlawfully obtained – whether the complainant had objectively reasonable grounds for considering the recording to be necessary for the protection of her then existing lawful interests – recordings not unlawfully obtained pursuant to s 4(3)(b)(i) of the Listening Devices Act 1992 (ACT) |
Legislation Cited: | Crimes Act 1900 (ACT) ss 53, 60, 72E Criminal Code Act 1995 (Cth) s 474.17(1) Evidence Act 2011 (ACT) ss 90, 138 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 51-53 International Covenant on Civil and Political Rights, 1966, 999 UNTS 171 (opened for signature 16 December 1966, entered into force 28 January 1993) Listening Devices Act 1992 (ACT) ss 4, 10 |
Cases Cited: | Dong v Song [2018] ACTSC 82; 331 FLR 326 DW v R [2014] NSWCCA 28; 239 A Crim R 192 R v CH and JW [2010] ACTSC 75 R v Fernando [2009] ACTSC 137; 238 FLR 6 R v Le [2004] NSWCCA 82; 60 NSWLR 108 Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108 |
Texts Cited: | Australian Institute of Family Studies and Victoria Police, Challenging Misconceptions about Sexual Offending: Creating an Evidence Based Resource for Police and Legal Practitioners, (Commissioned Report, September 2017) |
Parties: | The Queen (Crown) EP (Accused) |
Representation: | Counsel P Burgoyne-Scutts (Crown) P Edmonds (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds & Associates (Accused) | |
File Numbers: | SCC 197 of 2018; SCC 198 of 2018 |
LOUKAS-KARLSSON J
Introduction
This matter involves two applications by EP (the accused).
The accused has pleaded not guilty to six counts on an indictment dated 30 August 2018, including three counts of an act of indecency without consent contrary to s 60(1) of the Crimes Act 1900 (ACT) (Crimes Act), one count of sexual assault in the third degree contrary to s 53(1) of the Crimes Act, one count of threatening to distribute an intimate image contrary to s 72E of the Crimes Act, and one count of using a carriage service to menace, harass or offend contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth). The offences all relate to the same complainant, TC. The accused and the complainant had been in a relationship for about six years before it broke down in April 2017, and have a daughter from their relationship.
The first application is for leave to be granted to the accused to cross-examine the complainant in relation to prior sexual experience, pursuant to s 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). On 15 October 2018, I allowed that application, with reasons to be provided at a later date.
The second application is to exclude all evidence obtained by the complainant on 19 February 2018 and 22 February 2018 from evidence pursuant to either ss 90 or 138 of the Evidence Act 2011 (ACT) (Evidence Act). The application pursuant to s 90 was not pressed in the accused’s written submissions, and the matter proceeded under s 138. On 29 October 2018, I dismissed that application, with reasons to be provided at a later date.
I now provide reasons for both of those applications.
The Leave Application
By way of an application in proceeding lodged 24 September 2018, the applicant sought the following orders:
(a)Leave be granted to the accused, EP, to cross-examine the complainant in relation to her prior sexual experiences with him;
(b)Leave be granted to dispense with the need to file any affidavit in support of this application; and
(c)Any other orders the Court thinks fit.
The grounds of the application as set out in the application in proceeding were as follows:
(a)Count 3 on the indictment alleges the accused assaulted the complainant on 9.2.18 with intent to have sexual intercourse with her without her consent (third degree sexual assault);
(b)Counts 1 & 2 also respectively allege he committed acts of indecency in the presence of, and upon, the complainant on the same date;
(c)However, the evidence set out at p.4 of the Case Statement confirms the complainant had consensual sex with the accused a number of times in the days following the alleged sexual assault;
(d)Accordingly, that sexual experience with the accused in the days following the alleged offence on 9.2.18 is a proper matter for cross examination about credit, being evidence that, if accepted, would be likely to substantially impair the confidence of the jury in the reliability of the complainant’s evidence, given the inherent implausibility of the complainant engaging in consensual sex with the accused several times in the days after he allegedly sexually assaulted her.
The accused relied on the decision of Penfold J in R v CH and JW [2010] ACTSC 75 (R v CH and JW) as to the interpretation of s 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
The prosecution submitted that the cross examination for the reason set out in the accused’s application is “not relevant to the matter and cannot amount to evidence of credibility”. The prosecution submitted that the accused’s submission that the evidence would “substantially impair the confidence of the jury in the reliability of the complainant’s evidence” was founded on “stereotypes and assumptions, which are incorrect”.
10. Sections 51- 53 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) as at the time of the application provided as follows:
51 General immunity of evidence of complainant’s sexual activities
(1) Evidence of the sexual activities of the complainant is not admissible in a sexual offence proceeding without leave of the court dealing with the proceeding.
(2) Subsection (1) does not apply to evidence of the specific sexual activities of the complainant with an accused person in the sexual offence proceeding.
52 Application for leave under s 51
Application for leave under section 51 (General immunity of evidence of complainant’s sexual activities) in a sexual offence proceeding must be made–
(a)in writing; and
(b)if the proceeding is before a jury––in the absence of the jury; and
(c)in the absence of the complainant, if an accused person in the proceeding requests.
53 Decision to give leave under s 51
(1) The court must not give leave under section 51 (General immunity of evidence of complainant’s sexual activities) unless satisfied that the evidence—
(a)has substantial relevance to the facts in issue; or
(b)is a proper matter for cross-examination about credit.
(2) Evidence (sexual activity evidence) that relates to, or tends to establish, the fact that the complainant was accustomed to engage in sexual activities is not to be regarded as having a substantial relevance to the facts in issue because of any inference it may raise about general disposition.
(3) Sexual activity evidence is not to be regarded as being a proper matter for cross-examination about credit unless the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant’s evidence.
11. In R v CH and JW, Penfold J considered the interpretation of s 51(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Her Honour concluded at [43] that:
…evidence of prior consensual sexual intercourse between the complainant and each of the applicants is not subject to s 51 of the Miscellaneous Provisions Act, so leave is not required under s 51(1) before that evidence is admissible.
12. On the basis of Penfold J’s interpretation, the accused submitted that leave would not be required to cross examine the complainant on her sexual history with the accused.
13. In the alternative, if an alternative interpretation of s 51 was adopted by the Court, the accused submitted that leave should be granted pursuant to s 53, as the evidence is a proper matter for cross-examination about credit, as it would “substantially impair confidence in the reliability of the complainant’s evidence”. The applicant submitted that a reasonable jury may have “some or serious doubts” about the truthfulness of an allegation, given that there are at two or three instances in the week following the offences in which consensual intercourse took place between the parties.
14. The prosecution submitted that R v CH and JW was not binding authority. The prosecution submitted that on the basis of R v Fernando [2009] ACTSC 137; 238 FLR 6, an earlier decision of Penfold J referred to in R v CH and JW at [34] – [36], the Court would need to be satisfied of its own interpretation of the words of subsection (2), being that “specific sexual activities” could relate to more than simply the acts for which the accused has been charged in order for s 51(2) to be applicable.
15. In relation to leave pursuant to s 53, the prosecution referred to a report entitled Challenging Misconceptions about Sexual Offending: Creating an Evidence Based Resource for Police and Legal Practitioners, at page 12. The report in short summary indicates that it is not uncommon for people who have been sexually assaulted to engage in sexual activity after the offence with the same offender.
Consideration
16. In my view, the reference in s 51(2) to “the specific sexual activities of the complainant with an accused person in the sexual offence proceeding" is, as a matter of statutory construction, arguably ambiguous. It may refer specifically to sexual activity that is the subject of the proceedings. On the other hand, it may be construed to refer more broadly to the sexual activities of the complainant with an accused person. On this application this question need not be definitively settled. On the broader construction leave is not required. On the stricter construction leave is required. For more abundant caution, it is appropriate that I consider the question of leave.
17. In my view, the evidence of subsequent consensual sexual intercourse is relevant as it has “substantial relevance to the facts in issue". The jury may consider that is unlikely that the complainant would undertake consensual sexual intercourse after non-consensual sexual activity. It is ultimately a question for the jury to determine. The evidence of the subsequent sexual activity is relevant in the circumstances of this case. I therefore granted leave.
Conclusion
18. On 15 October 2018, I ordered that leave be granted for the relevant cross-examination.
The Exclusion Application
19. By way of an application in proceeding lodged 24 September 2018, the accused sought the following orders:
(a) All evidence obtained by the complainant, TC, on 19 February 2018 and 22 February 2018, by use of covert audio recordings of conversations between her and the accused, be excluded pursuant to either ss 90 or 138 of the Evidence Act; and
(b) Any other orders this honourable court thinks fit.
20. The grounds of the application as set out in the application in proceeding were as follows:
(a) On 19 February 2018 and 22 February 2018 the complainant made covert recordings of conversations between her and the accused (the recordings), contrary to s 4 of the Listening Devices Act 1992 (ACT) (the Act);
(b) Whilst the recordings were made after certain allegations about the accused were made by the complainant to the AFP, such were not made at the suggestion of, or with any assistance from, the AFP;
(c) The complainant did not have objectively reasonable grounds for considering the recordings to be necessary for the protection of her then existing lawful interests;
(d) During the recordings the accused made a number of admissions and other representations sought to be relied upon by the Crown; and
(e) The evidence was thus unlawfully obtained, making it prima facie inadmissible, subject to the exercise of the Court’s discretion to admit the same having regard to the factors set out in s 138(3) of the Evidence Act.
21. The accused’s ultimate submission was that the recordings were made unlawfully, as they were made in contravention of s 4 of the Act. Therefore, the recordings are not admissible pursuant to s 138 of the Evidence Act or s 90 of the Evidence Act.
The Recordings
22. The complainant spoke with officers at the Tuggeranong Police Station by telephone on 15 February 2018. The complainant told officers that earlier in the evening, the accused had threatened to disseminate sexually explicit images of the complainant. The complainant later found an “intimate image” of herself face down on the driveway of her residence. The complainant later, at 0:00 on 16 February 2018, attended Tuggeranong Police Station to provide officers with the image. The police officers made arrangements for the complainant to return to the police station on 20 February 2018.
23. On 19 February 2018, the complainant made a covert recording of a conversation between herself and the accused (the 19 February recording).
24. On 20 February 2018, the complainant attended the Tuggeranong Police Station, were she gave a statement to police officers.
25. On 21 February 2018, the complainant called police officers at the Tuggeranong Police Station to indicate her concerns for the accused.
26. On 22 February, the complainant made a covert recording of a conversation between herself and the accused (the 22 February recording).
27. The prosecution submitted that the recordings contain part of the physical conduct of the accused which make up the offences charged. Namely, the recordings contain direct evidence of the accused telling the complainant that she had to engage with him in sexual intercourse for three months, otherwise he would disseminate intimate images of her. Counsel for the offender did not appear to contest the prosecution’s submission relating to the content of the recordings.
Relevant Law
28. This application is made pursuant to s 138 of the Evidence Act.
29. In the matter of Dong v Song [2018] ACTSC 82; 331 FLR 326, McWilliam AsJ provided the following outline of relevant provisions and the legislative intent of the Act at [5]-[16]:
5. Section 4(1) of the Act creates an offence for using a listening device. It provides:
Use of listening devices
(1) A person must not use a listening device with the intention of—
(a) listening to or recording a private conversation to which the person is not a party; or
(b) recording a private conversation to which the person is a party.
Maximum penalty: 50 penalty units.
6. There was no dispute that a video camera fell within the definition of a listening device in the Dictionary to the Act, and that the plaintiff intended to record her conversation with the defendants.
7. The Act then creates a number of exceptions to the offence. The one that is material to the present case is s 4(3)(b)(i) of the Act:
(3) Subsection (1) (b) does not apply to the use of a listening device by, or on behalf of, a party to a private conversation if—
(a) …
(b) a principal party to the conversation consents to the listening device being so used, and—
(i) the recording of the conversation is considered by that principal party, on reasonable grounds, to be necessary for the protection of that principal party's lawful interests; or
…
8. Section 5 of the Act creates an offence for a party to a private conversation who communicates or publishes a record of a private conversation if the person knows that the record was made using a listening device, whether or not in contravention of s 4. However, one of the exceptions to the offence is where the communication/publication was made in the course of civil proceedings: s 5(2)(c) of the Act.
9. The offences, and the exceptions to them, feed into pt 3 of the Act, headed ‘Evidence’. Section 10 of the Act (found in pt 3) governs the admissibility of evidence obtained using listening devices. Again, the structure of the provision makes the use of the evidence inadmissible but then creates exceptions. Section 10(1) of the Act provides (emphasis added):
(1) If a private conversation, or a report of a private conversation, has come to the knowledge of a person as a result (direct or indirect) of the use of a listening device in contravention of section 4, or as a result (direct or indirect) of the use of a listening device in circumstances referred to in section 4 (2) (b) or 4 (3)—
(a) evidence of the conversation; or
(b) evidence obtained as a direct consequence of the conversation so coming to the knowledge of that person;
may not be given by that person in any civil or criminal proceedings.
10. Section 10(2) of the Act carves out exceptions to the inadmissibility created by s 10(1). Material to the present case are the following exceptions:
(2) Subsection (1) does not apply—
…
(c) if the listening device was used in the circumstances referred to in section 4 (3) (b) (i)—so as to render any evidence inadmissible for the purpose of protecting the lawful interests of the principal party to the conversation who consented to the use of the device; or
…
(e) if the person referred to in subsection (1) also obtains knowledge of the conversation or report in circumstances other than those referred to in that section.
11. The reference in s 10(2)(e) of the Act to obtaining knowledge otherwise than as set out in sub-s (1) is a reference to the words emphasised above, namely evidence coming to the knowledge of a person as a result of the use of a listening device. Where the person has knowledge of the conversation because he or she was actually a party to it, and not because of the use of the listening device, then the section excluding admissibility of that evidence does not apply. That is consistent with decisions based on similar wording in s 13(2)(b) of the now repealed Listening Devices Act 1984 (NSW) (NSW Act): see Chao v Chao [2008] NSWSC 584 (Chao) at [7] per Brereton J; Violi v Berrivale Orchards Ltd [2000] FCA 797; 99 FCR 580 (Violi) per Branson J at [35]; Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108 (Sepulveda) at [146]-[147].
12. Of significance for the discussion of the authorities below, s 5(3)(b)(i) of the NSW Act was the statutory equivalent of s 4(3)(b)(i) of the Act, and ss 13(1) and 13(2) of the NSW Act were in similar terms (but not identical) to those in ss 10(1) and 10(2) of the Act respectively. The NSW Act has been replaced by the Surveillance Devices Act 2007 (NSW), although the exceptions discussed above have been preserved through ss 7(3)(b) and 11(3) of that statute, the terms of which it is unnecessary to consider further here.
Legislative intent of the Act
13. Due to the nature of the submissions made by the defendants below, consideration has been given to the purpose of these provisions.
14. The general legislative intent of the Act is the protection of unjustified interference with a person’s privacy. That is consistent with judicial statements where the NSW Act was under consideration: see R v Le [2004] NSWCCA 82; 60 NSWLR 108 (R v Le) per Giles JA at [20], in dissent but not in relation to purpose of the NSW Act. Perhaps more generally in Violi at [21], Branson J referred first to the mischief which was intended to be addressed by the NSW Act as being the protection of privacy. However, her Honour later specifically addressed the intent lying behind the admissibility provisions in s 13 of the NSW Act at [36]:
…The intent of the legislature would appear to be that where a person would ordinarily be able to give evidence of a conversation otherwise than because of the use of a listening device (for example, from his or her recollection as a party to the conversation) the fact that he or she has obtained knowledge of the conversation as a result of the use of a listening device should not render his or her evidence inadmissible. Moreover, it would appear from the opening words of s 13(2) to be the intent of the legislature that in such a circumstance the best evidence of the conversation, and not merely the [presumably imperfect recollection of the witness], should be available to the court.
15. Although the analysis is obiter because her Honour later concluded that the NSW Act was not binding on a Federal Court, there is no reason why the intention of the ACT legislature in enacting the Act should be construed differently. The explanatory memorandum of the Listening Devices Bill 1992 (ACT) describes the intent of what became s 10 of the Act as being to render evidence inadmissible in civil or criminal proceedings if it was obtained by a person by the unlawful use of a listening device.
16. Further, the specific limited exceptions to the offence created, and to the subsequent admissibility of evidence prescribed by the Act, are plainly not an arbitrary interference with the individual right to privacy such as to give rise to any concern under s 12 of the Human Rights Act 2004 (ACT).
30. At [17]-[18], McWilliam AsJ outlined the following steps required to determine the admissibility of evidence of this kind:
17. Applying the above provisions to the evidence under consideration:
(a) If the video recording was made in the circumstances described in s 4(3)(b)(i) of the Act, then it will be admissible through the exception in s 10(2)(c) of the Act.
(b) If the video recording was not made in those circumstances (and thus contravened s 4 of the Act), it would still be admissible under s 10(2)(e) of the Act, because it was nevertheless evidence of a conversation that the plaintiff had obtained knowledge of in lawful circumstances, namely because she was there and could remember it. However, s 138 of the Evidence Act would operate, which permits the Court to exercise discretion to exclude improperly obtained evidence.
(c) Similarly, with regard to the plaintiff’s affidavit evidence, if the video recording did not contravene s 4 of the Act, then the plaintiff’s use of it to revive her memory and then prepare her affidavit evidence is admissible under s 10(2)(c) of the Act. Conversely, if the video recording contravened s 4 of the Act, then the issue of illegality or impropriety again arises for consideration pursuant to s 138 of the Evidence Act: see, by analogy, Sepulveda at [147]-[148] and the authority there-cited.
18. The overarching question on admissibility then, is whether the recording falls within the s 4(3)(b)(i) exception under the Act. That may be broken down into a number of elements. In order for the evidence in the present case to be admissible under the Act:
(a) The person must be a principal party to a conversation;
(b) The person must consent to using a listening device;
(c)The reason for the recording must be because the person considers it necessary to protect his or her lawful interests;
(d) There must be reasonable grounds for that belief; and
(e)The evidence must be led for the purpose of protecting those lawful interests (picking up the purpose referred to in s 10(2)(c) of the Act).
Were the recordings unlawful?
Section 4(1)(b) of the Act
31. The starting point is s 4(1)(b) of the Act, which states that a person must not use a listening device with the intention of recording a private conversation to which the person is a party. It is clear that in this case, the complainant was a principal party to the conversation, and that she consented to using the listening device.
Does the exception in s 4(3)(b)(i) apply
32. The next question is whether an exception to s 4(1)(b)(i) applies. If the exception applies, the evidence will be admissible through the exception in s 10(2)(c) of the Act. The prosecution submitted that s 4(3)(b)(i) applies; that is, that it was in the complainant’s lawful interest to make the recording.
33. The accused submitted that the applicable legal principles were those set out at [24]-[43] of Dong:
Applicable legal principles
24. A number of authorities in other jurisdictions have given consideration to the meaning of ‘necessary’, ‘reasonable grounds’, and ‘protection’ of ‘lawful interests’ in the same or similar statutory contexts.
Necessary
25. In this statutory context, ‘necessary’ has been held to mean appropriate, but not essential: Sepulveda at [117].
Reasonable grounds
26. The reasonableness of such necessity is to be judged objectively, and upon bases or grounds that exist at the time of the recording: Sepulveda at [118], in relation to the terminology used in the NSW Act, being ‘reasonable necessity’.
Protection
27. The ordinary meaning of ‘protection’ as shelter, defence or preservation from harm, danger, or evil has been said to be apt in this statutory context: Sepulveda at [120]; Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72; 261 FLR 211 (Georgiou) at [16].
Lawful interests
28. The words ‘lawful interests’ are not defined and the scope of those words has not been comprehensively identified in the authorities: DW v R [2014] NSWCCA 28; 239 A Crim R 192 (DW v R) at [27]. It is an expression best left to be applied case by case, subject to some general guidelines: Thomas v Nash [2010] SASC 153; 107 SASR 309 (Nash) per Doyle CJ at [47].
29. In Violi at [28], it was said that ‘lawful interests’ means simply interests which are not unlawful. The words are to be distinguished from legal interests, and convey notions of ‘legitimate interests’ or ‘interests conforming to law’. Violi was a case involving a claim for breach of contract or alternatively for misleading or deceptive conduct. The conversations that had been recorded had taken place after the date upon which the alleged contract was entered into and the representations relied upon by the applicants to base their claims in misleading or deceptive conduct had already occurred. It thus has some resonance with the present case.
30. Violi was followed in Georgiou per Allanson J at [16], and in Dimech v Tasmania [2016] TASCCA 3; 257 A Crim R 495 at [8]. In Sepulveda, Johnson J (with whom McClellan CJ at CL and Hislop J agreed) suggested at [126] that the meaning of a lawful interest may not be as broad as that stated in Violi, although his Honour expressly declined to consider the issue as the parties had not submitted that what was stated in Violi was wrong.
31. The parties here have similarly not expressly submitted that Violi was wrong, but it arises for consideration here because the defendants have argued that ‘lawful interests’ does not encompass the interests of the plaintiff here and they rely in part on the reasoning in Sepulveda to support that submission.
32. Sepulveda was a criminal proceeding. Johnson J construed the structure of the equivalent exception in the NSW Act as follows at [115]:
…It is necessary to bear in mind that s 5(3)(b)(i) constitutes an exception to the general statutory prohibition on the use of a listening device, where the primary exception permits recording of conversations under warrant. There is a strong argument that the words of s 5(3)(b)(i) ought be closely confined to avoid undermining the primary purpose of the [NSW Act]. An undue willingness to include a multitude of differing circumstances within this statutory exception may serve to encourage persons to make a covert recording of a conversation rather than (in the present context), comply with the primary object of the Act by bringing the matter to the attention of the relevant law enforcement authorities so that application may be made for a warrant to lawfully record a conversation.
33. Johnson J (again with McClellan CJ at CL and Hislop J agreeing) went on to state at [142] (emphasis added):
Section 5(3)(b)(i) of the [NSW] Act should not be interpreted in such a way as to render otiose the primary purpose of the Act, which is to protect privacy by prohibiting covert recording of a conversation other than (usually) by way of a warrant under the Act. Section 5(3)(b)(i) operates as an exception. The construction of the learned trial Judge would leave open the covert recording of a conversation by any person who alleges that he or she is a victim of crime, and who speaks to the alleged offender for the purpose of obtaining admissions of offences. The ‘lawful interests’ identified by the trial judge in the present case are of a somewhat nebulous kind. They do not appear to satisfy the requirement that the recording be undertaken for the protection of then existing lawful interests. It is important that a construction not be attached to this statutory exception which would serve to undermine, in a significant respect, a primary purpose of the [NSW] Act.
…
36. In my view, neither a broad nor a confined construction attaches to the exception created by s 4(3)(b)(i) of the Act. Rather, in line with Doyle CJ’s comment in Nash (referred to in 28] of these reasons), it is preferable to simply consider the expression ‘lawful interests’ in the context of the circumstances of each case, focussing on the words not in isolation, but in the context of the section being an exception to a criminal offence, and with the purpose of the Act in mind. It may be that the more tenuous the lawful interest, the less likely that it will be objectively necessary to protect it through the means of a listening device.
37. Further, even in the case of victims of crime, the reasoning at [142] of Sepulveda has been distinguished where the facts of the case make it impracticable for someone to ask the police to apply for a warrant. In DW v R, one of the grounds of the appeal involved a recording made by a 14 year old child complainant of conversations with her father which had been admitted into evidence by the primary judge in a trial involving criminal charges of, among other things, aggravated indecent assault and use of a child for pornographic purposes.
38. In DW v R, Ward JA (as her Honour then was) at [45]-[46] referred to the appellant’s reliance on the above reasoning in Sepulveda at [142] in support of a submission that it was open to the complainant to have complained to the police. Her Honour found that the child could not be expected to have understood the legal avenues that she could take in order to have her complaints investigated (at [47]), going on to state at [48]-[49]:
[48]…Nor did she, as was the case in Sepulveda, seek to obtain money in exchange for the recording. Given the relatively short period of time between the making of the recording and the occasion on which the complaint was made to the police (about a month), there is no reason to infer that the recording was not made for the purpose of the complainant having some evidence which she could use to convince others to believe her or to corroborate her word (as was the context in which it was suggested that she make the recording in the first place) or to protect herself from further assaults. …
[49] In my opinion, it was open to the trial judge to infer that the recording was made for the purpose of the protection of the complainant’s lawful interest in protecting herself from continuing abuse and exploitation.
39. Her Honour went on to state at [51]:
The Crown submitted, and I accept, that it was not practicable in the circumstances of this case for the complainant to contact police in order to seek to arrange a warrant to record conversations with her father.
40. Similarly, the desire of a witness to protect her credibility generally; to support her credibility if she had to give evidence in court proceedings about the matter; and to protect herself against exposure to being charged with making false allegations against other people about matters of considerable seriousness, have been held to be lawful interests in R v Le at [83] per Adams J (with whom RS Hulme J agreed).
41. As stated at [23] of these reasons, the defendants relied on a passage in R v Le to the contrary, per Giles JA at [47]. However, his Honour was in dissent on that issue and the applicable reasoning to this case is that of the majority.
42. Such interests may be contrasted with a mere desire to have a reliable record of a conversation, or a desire to gain an advantage in civil proceedings, which would not ordinarily amount to a relevant lawful interest: Nash at [48] per Doyle CJ, noting again that each case has to be considered on its facts.
43. In Chao at [8] a recording made where a serious dispute had erupted, and it was anticipated there would be a dispute as to different versions of an arrangement, was held by Brereton J to give rise to a lawful interest (see also DW v R at [34]).
34. The accused conceded that it was common ground that the complainant held the requisite subjective belief, that is, that the complainant honestly believed that it was necessary for her to make the recording to protect her lawful interest. The accused submitted that the complainant did not have objectively reasonable grounds for considering that the recordings were necessary for the protection of her then existing lawful interests.
35. The accused submitted that, whereas the decision in Dong related to a civil dispute, in this case, various alternative options were available to the complainant seeking to protect her lawful interests, including an application by the AFP for a telephone intercept warrant following the earlier reporting of the complainant’s allegations to them. The accused submitted that no explanation had been put forward by the complainant as to why this was not done.
36. The accused further submitted that consistent with the observations of Johnson J (with whom McClellan CJ at CL and Hislop J agreed) in Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108, it is insufficient to establish reasonable grounds for the belief that a recording is in a person’s lawful interest merely because they are concerned that they may not be believed.
37. The prosecution submitted that the recordings were in the complainant’s lawful interest. The prosecution relied on DW v R [2014] NSWCCA 28; 239 A Crim R 192, and submitted that the context of the recordings was a situation where the accused had made previous threats, which were ongoing and an invasion of her privacy, and therefore the complainant was protecting her lawful interests. The prosecution further submitted that the recordings were consistent with the complainant protecting and supporting her own credibility, and protecting herself from charges of false allegations.
38. The prosecution submitted that as the recordings were made at the time that the offences were being committed, the complainant was acting on ‘reasonable grounds’ to protect her lawful interest.
39. The prosecution further submitted that it would not have been reasonably practicable for the complainant to speak to the AFP and apply for a warrant for this purpose, and that there was no evidence the complainant knew that this was an option.
Consideration
40. In my view, the recordings fall within the exception to the offence: s 4(3)(b)(i). Further, in my view the recording of the conversations was considered by the complainant, on reasonable grounds, to be necessary for the protection of her lawful interests.
41. I have formed this view for the following reasons:
(a)The context of the recordings was that of the accused allegedly having made previous threats that were ongoing, including:
(i)a threat made on the 10 February 2018, including that the complainant may need to “collect some things off the front lawn before too many people see them”;
(ii)on 15 February 2018, the complainant finding on the ground near her car an intimate image of herself taken with the accused some years ago, allegedly distributed by the accused; and
(iii)on 18 February 2018, when the complainant attended the accused’s house in order to receive some of her daughter’s possessions, as the accused handed over items to the complainant, five laminated intimate photos of the complainant fell to the ground. The accused later texted the accused, saying that there was “more of those things in [the complainant’s daughter’s] school bag”, and “I guess you’re happy for [the complainant’s daughters] teachers to see what’s in her bag all day”.
(b)The recordings were for the purpose of the complainant protecting herself in the circumstances from charges of false allegations. In this case, the accused:
(i)sent the complainant a text on 10 February 2018 suggesting that the complainant “kept trying” to have sex with him the previous night, and that he “had to defend [him]self and throw [the complainant] out”;
(ii)sent the complainant a text on 21 February 2018, accusing the complainant of “trying to make it look like [he was] harassing [her]”, suggesting that she had made “other degrading accusations about and against [him]” in the past, and further suggesting that the complainant had “put pictures of [her] self everywhere” and had “tried to pin it on” the accused; and
(c)The recordings were made at the time of an alleged admission (the 19 February recording, related to the incident of 15 February), and at the time of an offence being committed (the 22 February recording). During the 22 February recording, the accused said the following to the complainant:
·If you fuck me for three months, I will stop harassing you and leave you alone.
·You’re never going to pin it to me..It’s all prepared, gloves everything..I’m giving you the chance to strike a deal
·I’ll put them everywhere, everywhere you drink at, there will be one everywhere. I’m serious…and we can’t strike a deal
·I’m happy to share them with other people
·You think its funny, it’ll never be pinned on me but your face will be fucking everywhere with your cunt right above it looking disgusting
·It’s been all professionally done and everything
42. On these bases, in my view there were reasonable grounds for the recording of the conversations. The recordings were considered subjectively by the complainant, on objectively reasonable grounds, to be necessary for the protection of her lawful interests.
43. At this juncture it is important to observe that the Court in Sepulveda at [142] emphasised that the exception should not be interpreted in a way that renders ineffective the primary purpose of the act:
Section 5(3)(b)(i) LD Act should not be interpreted in such a way as to render otiose the primary purpose of the Act, which is to protect privacy by prohibiting covert recording of a conversation other than (usually) by way of a warrant under the Act. Section 5(3)(b(i) operates as an exception. The construction of the learned trial Judge would leave open the covert recording of a conversation by any person who alleges that he or she is a victim of crime, and who speaks to the alleged offender for the purpose of obtaining admissions of offences. The “lawful interests” identified by the learned trial Judge in the present case are of a somewhat nebulous kind. They do not appear to satisfy the requirement that the recording be undertaken for the protection of then existing lawful interests. It is important that a construction not be attached to this statutory exception which would serve to undermine, in a significant respect, a primary purpose of the LD Act.
44. Further, in R v Le [2004] NSWCCA 82; 60 NSWLR 108, Giles JA at [47] observed that “different minds could give different answers in the application of reasonable necessity”. Therefore, if I am wrong and the recordings do not come within s 4(3)(b)(i), it becomes necessary to consider whether the recordings are admissible under s 138 of the Evidence Act. Section 138(3) contains a non-exhaustive list of matters to be taken into account in relation to that determination. The relevant matters of this case to be considered under s 138(3) includes the following:
(a)The evidence has a high probative value;
(b)It is “direct’ evidence of what occurred in relation to Count 5 of the indictment, it is cogent and important evidence in the proceedings;
(c)The nature of the relevant offence and the nature of the subject matter of the proceedings are serious. It is a serious matter to make threats to disseminate intimate images of a person as alleged;
(d)The gravity of the impropriety is not high; this was not a case where a covert recording was made by a third party of a conversation between two other parties: see Sepulveda at [149];
(e)The impropriety was conceded to be deliberate;
(f)The impropriety or contravention may be considered to be inconsistent with a right of a person recognised by the International Covenant of Civil and Political Rights (ICCPR), that is, the right to silence;
(g)No other proceeding is being undertaken in relation to the alleged impropriety; and
(h)In relation to the difficulty of obtaining the evidence without impropriety, this is not a case where the complainant has acted as any type of ‘agent’ of the State to obtain the evidence.
45. If the recordings were unlawful, I would have nonetheless allowed the evidence to be admitted pursuant to s 138 of the Evidence Act, taking into account the relevant matters set out above.
Conclusion
46. For those reasons, on 29 October 2018, I dismissed the accused’s application to exclude the evidence.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: |
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