R v Sutton
[2019] ACTSC 284
•15 October 2019
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 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 Crown submitted that the prohibition in s 4 did not apply because the use of the listening device was under an authority granted by a law of the Commonwealth, namely the Surveillance Devices Act 2004 (Cth).
For the reasons that follow I accept the submissions made on behalf of the Crown.
Relevant provisions
Section 4 of the Listening Devices Act provides:
4Use 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.
(2)Subsection (1) does not apply to—
(a)the use of a listening device under an authority granted by or under a law of the Commonwealth; or
(b)the unintentional hearing of a private conversation by means of a listening device.
(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)each principal party to the conversation consents to that use of the listening device; or
(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
(ii) the recording is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to any person who is not a party to the conversation.
(4)Subsection (3) (b) (i) does not apply so as to exempt a person from the application of subsection (1) if the relevant listening device is used by or on behalf of the Territory.
A listening device is defined in the Dictionary to the Act as follows:
listening device means any instrument, apparatus, equipment or device capable of being used to listen to or to record a private conversation, but does not include a hearing aid.
The relevant section of the Surveillance Devices Act is s 38(4) which needs to be read in conjunction with s 38(1). They are as follows:
38Use of surveillance devices without warrant for listening to or recording words in limited circumstances
(1) A federal law enforcement officer acting in the course of his or her duties may, without warrant, use a surveillance device for any purpose involving listening to, or recording, words spoken by a person:
(a) if the officer belongs or is seconded to the Australian Federal Police—that is within the functions of the Australian Federal Police set out in section 8 of the Australian Federal Police Act 1979; or
(aa) if the officer belongs or is seconded to the Australian Commission for Law Enforcement Integrity—that is within the functions of the Integrity Commissioner set out in section 15 of the Law Enforcement Integrity Commissioner Act 2006; or
(b) if the officer belongs or is seconded to the Australian Crime Commission—that is within the functions of the Commission set out in section 7A of the Australian Crime Commission Act 1979;
if the use of that device for that listening or recording purpose is confined to circumstances where:
(c) the law enforcement officer is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or
(d) the law enforcement officer listens to or records the words with the consent, express or implied, of a person who is permitted to listen to or record the words by paragraph (c) or by subsection (4).
…
(4) A person (other than a federal law enforcement officer) who is assisting a federal law enforcement officer acting in the course of his or her duties may, without warrant, use a surveillance device for any purpose:
(a) that involves listening to, or recording, words spoken by a person; and
(b) that is referred to in subsection (1);
if the first‑mentioned person is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard.
The explanatory memorandum for the Surveillance Devices Bill (No 2) 2004 provided relevantly:
173. … Similarly, subclauses 38(4) and (5) permit a non-[law enforcement officer] to wear a [listening device] to listen or record a conversation of which they are a participant when assisting a [law enforcement agency] in the investigation of a relevant offence or to locate and recover a child who is the subject of a recovery order. The limitations imposed on non-[law enforcement officers] using a [listening device] without a warrant are the same as those imposed on a [law enforcement officer] in the same situation. This means that a non-[law enforcement officer] must be the speaker of the words or the person to whom they are speaking must intend, or should reasonably expect the words to be heard by the non-[law enforcement officer] or class or group of such persons for the use of the [listening device] to be lawful. This reproduces the effect of the existing subsection 12F(2) of the AFP Act 1979. In extending this power beyond the use of [listening devices] by [law enforcement officers], informers can lawfully wear a [listening device] when assist [sic] police, for example, in a controlled operation.
The reference to s 12F(2) of the Australian Federal Police Act 1979 (Cth) as in force prior to the Surveillance Devices Act is a reference to the provision in the following terms:
12F Use of listening devices in relation to general offences
(2)It is unlawful for a person acting by arrangement with an official to use, for the purposes of general offence inquiries that are being made by members, a listening device for the purpose of listening to or recording words while they are being spoken by a person unless the first-mentioned person is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard.
…
(4) Despite any law of a State or Territory:
…
(b) a person acting by arrangement with an official does not act unlawfully merely because the person uses a listening device as mentioned in subsection (2) in circumstances in which the use of the device is not declared to be unlawful by that subsection.
A surveillance device is defined in s 6 of the Surveillance Devices Act as follows:
surveillance device means:
(a) a data surveillance device, a listening device, an optical surveillance device or a tracking device; or
…
A listening device is defined in s 6 as:
listening device means any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear.
Explanation of the operation of s 38(4)
Section 38(4) of the Surveillance Devices Act extends the permission granted by s 38(1) to federal law enforcement officers to persons who are “assisting a federal law enforcement officer acting in the course of his or her duties”. The subsection permits the use of a surveillance device “for any purpose” that meets the two requirements in ss 38(4)(a) and (b). Section 38(4)(a) limits the purpose to listening to, or recording, words spoken by a person. That is a limitation because surveillance devices can extend beyond listening to or recording spoken words as the definition of ‘surveillance device’ in the Act includes “a data surveillance device, a listening device, an optical surveillance device or a tracking device”. Section 38(4)(b) limits the purpose to a purpose which is referred to in subs 38(1). It is then necessary to locate the purposes in subs 38(1).
Subsection 38(1) has two parts. The first part is that in which paragraphs (a), (aa) and (b) of the subsection operate. Where the law enforcement officer belongs or is seconded to the Australian Federal Police the relevant paragraph is (a). The opening words of subs 38(1) combined with paragraph (a) limit the use of a surveillance device to “any purpose involving listening to, or recording, words spoken by a person… that is within the functions of the Australian Federal Police set out in section 8 of the Australian Federal Police Act 1979”. Section 8 of the Australian Federal Police Act includes as a function of the Australian Federal Police “the provision of police services in the Australian Capital Territory”.
The second part of s 38(1) is that in which paragraphs (c) and (d) operate. Those two paragraphs confine the circumstances in which the listening or recording purpose operates to particular factual scenarios. The first scenario ((c)) is where the law enforcement officer is the speaker of the words or is a person by whom the speaker of the words intends, or should reasonably expect, the words to be heard. The second scenario ((d)) applies where the law enforcement officer listens to or records the words of another law enforcement officer or a person who is assisting the law enforcement officer within the scope of subs (4).
In summary, the first part of s 38(1) ensures that the surveillance device is only used for a purpose that is within the functions of the Australian Federal Police. The second part of s 38(1) limits the circumstances in which the listening or recording may be carried out to circumstances where the target is talking to a police officer.
Therefore, the reference in s 38(4) to “any purpose… that is referred to in subsection (1)…” is simply a reference to any purpose encompassed within paragraphs (a), (aa) or (b) of s 38(1). It avoids the need to repeat the three categories of federal law enforcement officers described in s 38(1) (a), (aa) or (b).
The words of subs 38(4) after paragraph (b) define the practical circumstances in which the recording can be made in the same way as is provided in s 38(1)(c).
Application in the present case
In the present case I consider that the complainant was assisting a member of the Australian Federal Police acting in the course of his duties. She was assisting police by making a recording of a telephone call with the accused for the purposes of Constable Kirby’s investigation of the allegations that she had made. I express no opinion as to whether or not that constituted her as an “agent” of the officer: cf R v Evans [2015] ACTSC 137 at [96]. It is sufficient for the section to apply that the threshold of “assisting” is met. It is not essential for the operation of the section that it receive the gloss of “agency” which may be significant for other aspects of the operation of the Evidence Act.
The use of a digital voice recorder to record the conversation involved the use of a “surveillance device” within the meaning of the subsection because it was a “listening device” as defined.
The complainant who made the recording was a person who was the speaker of words that were recorded and was a person by whom the accused intended the words to be heard. Therefore, the requirement in the closing words of subs (4) was met.
As a result, the use of a surveillance device was authorised by s 38(4). It was therefore not unlawful under s 4 of the Listening Devices Act because it involved “the use of a listening device under an authority granted by or under a law of the Commonwealth” within the meaning of s 4(2). As a consequence, the discretion to exclude the evidence under s 138 of the Evidence Act is not enlivened.
Other issues
The telephone call was made while the complainant was sitting in the interview room normally used for video recorded interviews. In addition to being recorded on the digital voice recorder, the making of the telephone call was also recorded on video. Although Constable Kirby did not expect this to be the case, the video recording also captured what was said by the accused during the conversation. As the case was argued, it turned upon the admissibility of the evidence of the telephone conversation, which turned upon the admissibility of the audio recording. In the event that the audio recording was admissible, no further submissions were directed to the admissibility of the video recording which, unexpectedly, also captured the accused’s side of the conversation. In those circumstances it is appropriate to make a ruling which does not distinguish between the two possible sources of evidence of what the accused said during the course of the conversation.
It should be noted that the application to exclude the evidence had initially also relied upon ss 85 and 90 of the Evidence Act. However, the arguments based upon those provisions were not pressed by counsel for the accused at the hearing.
In written submissions counsel for the accused submitted that only the admissions in the recording were relevant and that other parts were not. There were only small portions of the recording which related to matters other than events on the date of the alleged sexual assaults. There is no reason to exclude this material as it provides context for the making of the admissions and goes to the relationship between the parties at this point in time.
The written submissions also contended that the pretext call involved an impropriety for the purposes of s 138 because it was made prior to giving the accused an opportunity to respond to the allegations. This was not developed in oral submissions after Constable Kirby indicated that the conduct of a pretext call after the offering of an interview may have involved an impropriety, namely an infringement of the accused’s right to silence. I understood that ultimately the submission was not pressed.
No other basis for the exclusion of the evidence of the covert telephone conversation was identified. It is therefore appropriate to make a positive ruling that the evidence is admissible.
Order
The order of the Court is:
1. The evidence obtained by the covert telephone conversation between the complainant and the accused on 21 March 2019 is admissible at the trial of the accused.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 23 October 2019 |