R v Sutton - [2019] ACTSC 284

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Sutton
Citation:	[2019] ACTSC 284
Hearing Date:	14 October 2019
DecisionDate:	15 October 2019
Before:	Mossop J
Decision:	See [28]
Catchwords:	CRIMINAL LAW – EVIDENCE – Admissibility – pre-trial application – sexual assault complainant undertook pretext telephone call to accused – police arranged for complainant to record conversation with digital voice recorder – making of telephone conversation also video recorded – admissions made by the accused – whether recording unlawfully obtained rendering admissions inadmissible – it was not
Legislation Cited:	Australian Federal Police Act 1979 (Cth), s 12F Evidence Act 2011 (ACT), ss 85, 90, 138, 192A Listening Devices Act1992 (ACT), s 4 Surveillance Devices Act 2004 (Cth), ss 38, 6 Surveillance Devices Bill (No 2) 2004 (Cth)
Cases Cited:	R v Evans [2015] ACTSC 137
Parties:	The Queen (Crown) Patrick Sutton (Accused)
Representation:	Counsel S Naidu (Crown) B Shelton (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Accused)
File Number:	SCC 120 of 2019

MOSSOP J:

Introduction

On 20 March 2019, the complainant, who I will refer to as FI, attended the Winchester Police Centre and participated in a recorded interview in which she alleged that the accused had sexually assaulted her on multiple occasions. First Constable Joel Kirby arranged for her to attend the police station the next day to participate in a pretext telephone call. The complainant attended the next day and was provided with a digital voice recorder and instructed how to use the device. She called the accused but he did not answer. A short time later she called him. The accused answered the phone and had a conversation with the complainant during which he made some admissions. The Crown seeks to rely upon those admissions as part of the Crown case. The accused seeks a ruling under s 192A of the Evidence Act 2011 (ACT) excluding the evidence.

When the complainant telephoned the accused she did so on her own mobile phone. At the time that she called him she also used the digital voice recorder provided to her by Constable Kirby. That digital voice recorder had connected to it by a cable, an earpiece which the complainant put in her ear. So long as she held her telephone up to her ear, this earpiece allowed her to both hear what was being said by the accused as well as permitting the recording device to record what he said. In this way, the recording device allowed both sides of the conversation to be recorded.

Counsel for the accused submitted that the recording of the conversation in this manner contravened s 4 of the Listening Devices Act 1992 (ACT). That was because the conversation was a private one, and the accused had not consented to the making of the recording. Counsel therefore submitted that the discretion to exclude the evidence in s 138 of the Evidence Act was enlivened, and that the evidence should be excluded.

Counsel for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Sutton

Details

AGLC: R v Sutton [2019] ACTSC 284
Case: [2019] ACTSC 284
Decision Date: 15 October 2019

CaseChat Overview and Summary

In the matter of Regina versus Sutton, the High Court of Australia was tasked with determining the admissibility of a recorded telephone conversation in a sexual assault case. The accused, Sutton, was charged with sexual assault following a complaint by the victim. In an effort to obtain further evidence, the complainant undertook a pretext telephone call to Sutton, during which the conversation was recorded. The police had arranged for the recording to be made using a digital voice recorder, and the conversation was also video recorded. Sutton argued that the recording was obtained unlawfully and sought to have the admissions made during the call excluded from evidence.

The court considered whether the recording was obtained lawfully and, if not, whether the admissions made by Sutton during the conversation should be excluded. The High Court held that the recording was not unlawfully obtained, as it was made with the consent of the complainant, who was acting as an agent of the police. The court found that the police had acted lawfully in arranging for the recording to be made, and that the complainant's actions did not constitute a breach of privacy. As a result, the admissions made by Sutton during the telephone conversation were deemed admissible.

The High Court found in favour of the prosecution, holding that the recording was lawfully obtained and the admissions made by Sutton were admissible. The court held that the evidence obtained through the recording would be permitted at trial, and the case would proceed accordingly. The court did not make any further orders beyond the ruling on the admissibility of the evidence.

Orders

Orders of the court

See [28]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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