The State of Western Australia v Coppola
[2023] WADC 30
•29 MARCH 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- COPPOLA [2023] WADC 30
CORAM: PRIOR DCJ
HEARD: 8 MARCH 2023
DELIVERED : 29 MARCH 2023
FILE NO/S: IND 378 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
FEDERICO FRANK COPPOLA
Catchwords:
Admissions - Covert audio recordings - Evidence unlawfully obtained - Discretion to exclude evidence
Legislation:
Criminal Code (WA), s 326
Evidence Act 1995 (NSW), s 138(3)
Surveillance Devices Act 1988 (WA), s 3, s 5, s 24, s 26
Result:
Accused's application dismissed
Covert audio recording by the complainant made on 24 March 2020 admitted into evidence
Representation:
Counsel:
| Applicant | : | Mr S Dworcan |
| Accused | : | Ms V Amidzic |
Solicitors:
| Applicant | : | Director of Public Prosecutions |
| Accused | : | Amidzic Legal |
Case(s) referred to in decision(s):
AW v Rayney [2010] WASCA 161
Bunning v Cross (1978) 141 CLR 54
Channel Seven Perth Pty Ltd v 'S' (A Company) [2005] WASC 175
Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 (S)
Kadir v The Queen [2020] HCA 1
Pihmea v The State of Western Australia [2017] WASC 282
R v Christie [1914] AC 545
R v Lee (1950) 82 CLR 133
PRIOR DCJ:
Introduction
Frederico Frank Coppola (the accused) is charged with two counts of sexual penetration without consent against his former de facto partner DDF (the complainant), in circumstances of aggravation that the accused was in a family relationship with the complainant, contrary to s 326 of the Criminal Code (WA).
The accused is alleged to have penetrated the complainant's vagina twice with his finger on 23 March 2020.
The incident allegedly occurred within the garage of the home of the complainant's parents in Yangebup. Leading up to the alleged offences, there was an argument between the complainant and accused as to whether she was involved in a relationship with another person.
The accused admits being with the complainant in the garage of her parents' Yangebup address on the date in question.
In response to the State's amended statement of material facts, the accused denies:
1.pulling the complainant's underwear off;
2.sexually assaulting her in any way; and
3.unbuttoning his pants or doing anything suggestive of an anticipated sexual assault.
The accused admits there was some jostling and a brief struggle with the complainant when he tried to grab her mobile phone and keys.
The parties spent one - two hours in the garage.
When the complainant went inside, the accused spoke to her for a further period of about 15 minutes through the bathroom window.
Eventually the complainant told the accused to leave, which he did.
The complainant did not make any complaint to the police of sexual assault against the accused until 1 July 2020.
The complainant and the accused were in a relationship for 18 years and have two children together. The relationship ended in July 2019, though they continued trying to repair the relationship up until January or February 2020.[1]
[1] Amended statement of material facts dated 13 May 2021, par 1.
There were ongoing Family Court proceedings between the complainant and the accused.
Accused's application
The State seeks to rely upon evidence of admissions against interest made by the accused, in the covert audio recording of part of a telephone conversation between the accused and complainant, said to have occurred at 8.36 pm on 24 March 2020 (the covert audio recording). The accused called the complainant, and she made the recording during the conversation. The accused was not advised that the conversation was being recorded. A transcript of the recorded conversation appears in the prosecution brief.[2]
[2] Prosecution brief, pages 122 - 130.
The State submits that 'the accused made implied admissions to the offences apologising to the complainant for what he had done the day before'.[3]
[3] Amended statement of material facts dated 13 May 2021, par 17.
The covert audio recording is 18 minutes in length. It is not a recording of the whole conversation between the complainant and the accused. The beginning and end of the conversation is not recorded. The State is unable to quantify how much of the conversation was not recorded. The parties accept the transcript of the covert audio recording in the prosecution brief is accurate.
The accused, by his application dated 6 March 2023, seeks the covert audio recording evidence be excluded as evidence in his trial.
The accused has filed submissions in support of his application. The factual matters referred to in [4] - [9] are admissions the accused will make or contested facts set out in those submissions.[4]
[4] Outline of defence submissions dated 5 March 2023.
The accused's position is the only issue which will be in dispute as to the elements of the two offences charged is whether the accused sexually penetrated the complainant. His position is, no acts of sexual penetration occurred. Lack of consent by the complainant to any act of sexual penetration will not be contested by the accused.[5]
[5] ts 30.
The accused submits that:[6]
1.properly understood, having regard to substance, context and meaning, the accused's utterances do not amount to clear and unambiguous admissions of the conduct the subject of charges to be tried; and
2.the recording was made unlawfully by the complainant and as a matter of both public policy and fairness to the accused, ought not be admitted into evidence.
[6] Accused's submissions dated 5 March 2023, par 22.
Unlawfulness
As to the accused's submission that the covert audio recording was made unlawfully by the complainant, the accused relies upon provisions of the Surveillance Devices Act 1988 (WA) (the Act).
Both parties accept that when the complainant recorded her telephone conversation with the accused on her mobile telephone with an application, she was using a 'listening device' and the recording was 'a private conversation' and both parties were 'principal parties' as defined by s 3 of the Act.
The parties do not submit that the accused consented expressly or implicitly to the covert audio recording or that the complainant was acting as a law enforcement officer or was instructed or authorised by one at the time.[7]
[7] Section 5(3)(a), s 5(3)(b) and s 5(3)(c) of the Act.
The accused submits that the complainant's act of recording her conversation with the accused is an offence pursuant to s 5(1)(b) of the Act, therefore the covert audio recording was unlawfully obtained.
The State submits that the complainant's act of recording her conversation with the accused was lawful due to the provisions of s 5(3)(d) of the Act. The complainant as the principal party did what was reasonably necessary to protect her lawful interests or in the alternative, she was entitled to use a listening device pursuant to s 26(1) of the Act because there were reasonable grounds for believing that the use of the listening device was in the public interest.
Section 5 and s 26(1) of the Act provides as follows:
5Regulation of use, installation and maintenance of listening devices
(1)Subject to subsections (2) and (3), a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device -
(a)to record, monitor, or listen to a private conversation to which that person is not a party; or
(b)to record a private conversation to which that person is a party.
Penalty:
(a)for an individual: $5 000 or imprisonment for 12 months, or both;
(b)for a body corporate: $50 000.
(2)Subsection (1) does not apply to -
(a)the installation, use, or maintenance of a listening device in accordance with a listening device warrant issued under Part 4;
(b)the installation, use, or maintenance of a listening device in accordance with an emergency authorisation issued under Part 4;
(c)the installation, use, or maintenance of a listening device in accordance with a law of the Commonwealth;
(d)the use of a listening device in accordance with Part 5; or
(e)the use of a listening device resulting in the unintentional hearing of a private conversation.
(3)Subsection (1)(b) does not apply to the installation, use, or maintenance of a listening device by or on behalf of a person who is a party to a private conversation if -
(a)that installation, use or maintenance is carried out in the course of that person's duty as a law enforcement officer;
(b)that installation, use or maintenance is carried out by that person as instructed or authorised by a law enforcement officer in the course of an investigation into a suspected criminal offence;
(c)each principal party to the private conversation consents expressly or impliedly to that installation, use, or maintenance; or
(d)a principal party to the private conversation consents expressly or impliedly to that installation, use, or maintenance and the installation, use, or maintenance is reasonably necessary for the protection of the lawful interests of that principal party.
26Use of listening devices in the public interest
(1)A person who is a party to a private conversation may use a listening device to record or monitor the private conversation if a principal party to the private conversation consents expressly or impliedly to that use and there are reasonable grounds for believing that the use of the listening device is in the public interest.
'Public interest' is defined widely in s 24 of the Act as follows:
… includes the interests of national security, public safety, the economic well‑being of Australia, the protection of public health and morals and the protection of the rights and freedoms of citizens.
The definition in s 24 of the Act is not exhaustive. Public interest is a wide concept. In my view, exposing serious crimes and obtaining evidence to prosecute those who commit them when an opportunity arises, is in the public interest.
The exclusions in s 5(3)(d) and s 26(1) of the Act make a person's acts of covertly recording a private conversation without consent of both principal parties under the Act lawful.
The significant and uncontroversial facts in relation to this matter are the following:
1.the accused has been charged with committing serious sexual offences on the complainant;
2.the covert audio recording occurred approximately within 24 hours of the alleged offences;
3.at the time of the covert audio recording, no complaint had been made by the complainant to the police about the alleged sexual offending;
4.there was no obligation on the complainant to make a complaint to the police about the accused alleged sexual offending;
5.the complainant in the covert audio recording informed the accused that she had not complained about his behaviour to the police, but told him she intended to do so;
6.at the time of the covert audio recording there were legitimate reasons for the accused and complainant to communicate with each other;
7.the covert audio recording was not planned or premeditated as the accused telephoned the complainant;
8.the covert audio recording does not record the total telephone conversation between the accused and the complainant;
9.the complainant used a commonly available device to make the covert audio recording;
10.the device used to make the covert audio recording was part of the same device the complainant was using to communicate with the accused;
11.there is no evidence to suggest the complainant knew that to covertly record the conversation was unlawful; and
12.the complainant could give evidence of her recollection of what was discussed between her and the accused in their telephone conversation and the covert audio recording is likely to be a more accurate record of the recorded parts of the conversation.
Admissions expressly or impliedly made by an accused to another party is an exception to the hearsay rule of evidence. The State submits the accused has made implied admissions in relation to the acts of sexual penetration without consent on the complainant in the covert audio recording.
In considering the exception under s 5(3)(d) of the Act, I am assisted by the useful summary of the various considerations and relevant authorities by Buss JA (as he then was) (McLure P agreeing) in AW v Rayney.[8]
[8] AW v Rayney [2010] WASCA 161 [257]; see also Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 (S) [16] (Allanson J).
In my view, in applying an objective test,[9] given the seriousness of the alleged offences, the close proximity in time between the alleged offences and telephone call, the likelihood of ongoing communication between the parties and the recording was done on a device which most members of the public have general access to, I consider that the covert audio recording was done in circumstances when it was reasonably necessary for the protection of the complainant's lawful interests as a principal party to the conversation.
[9] Channel Seven Perth Pty Ltd v 'S' (A Company) [2005] WASC 175 [93] (Le Miere J).
The complainant had a lawful interest in the proper investigation into the sexual offences allegedly committed upon her by the accused, and therefore, recording any admissions the accused made concerning such allegations.
I do not agree that the complainant could only protect her lawful interests once a complaint was made to the police. The complainant by recording any admissions the accused made concerning alleged unlawful sexual behaviour towards her the previous day was protecting her lawful interests as a private citizen.
Section 5(3)(d) of the Act applies and the complainant's conduct in recording her conversation with the accused was not unlawful.
When considering how s 26(1) of the Act is to be construed, I am assisted by Jenkins J's summary of the relevant principles in Pihmea v The State of Western Australia.[10]
[10] Pihmea v The State of Western Australia [2017] WASC 282 [29].
Given the width of the definition of public interest I have referred to in [26] and [27], I am satisfied the complainant's use of the listening device to record the accused's private telephone conversation with her was done when she had reasonable grounds for believing that she was using the listening device in the public interest. The exclusion under s 26(1) therefore applies to the complainant's covert audio recording.
Unfairness
Notwithstanding I have found that the covert audio recording containing the alleged admission by the accused was not unlawfully obtained, I still have a discretion to exclude this evidence if its admission would be unfair to the accused.[11]
[11] R v Lee (1950) 82 CLR 133.
In exercising my discretion in consideration as to whether the covert audio recording should be admitted as evidence, I need to consider the probative value of the evidence against the prejudice to the accused.[12]
[12] R v Christie [1914] AC 545.
The exclusionary discretion in criminal proceedings referred to in Bunning v Cross[13] is not the same as the discretion required to be exercised here because, in that case, unlawful conduct occurred by persons whose task it was to enforce the law. The High Court in Kadir v The Queen[14] has described:
Bunning v Cross is an exclusionary discretion that applies in criminal proceedings and requires the court to balance the desirable goal of convicting wrongdoers against the undesirable effect of giving curial approval, or even encouragement, to the unlawful conduct of those whose task it is to enforce the law.24
(FN24 Bunnings v Cross (1978) 141 CLR 54 [74] (Stephen & Aickin JJ).)
[13] Bunning v Cross (1978) 141 CLR 54.
[14] Kadir v The Queen [2020] HCA 1.
The accused has relied upon the High Court decision of Kadir v The Queen in relation to the discretionary exercise. In that case there are three distinguishing factors. Firstly, the High Court was considering the provisions of the Surveillance Devices Act 2007 (NSW). Secondly, it was found the conduct of a documentary photographer in obtaining surveillance evidence (video recordings) was unlawful. Thirdly, then the court was bound to consider the criteria in s 138(3) of the Evidence Act 1995 (NSW) as to whether the evidence the prosecution sought to adduce should be excluded as it had been improperly obtained. There is no statutory equivalent to s 138 of the Evidence Act 1995 (NSW) in Western Australia.
In exercising my discretion, I am conscious of the fact these are criminal proceedings and that admissions made (expressed or implied) against the interests of an accused are commonly admitted as evidence in criminal trials. Here, any admission by the accused that he expressly or implicitly admitted in engaging in sexual conduct with the complainant on the previous day in the covert audio recording would have significant probative value, given he denies such conduct occurred.
The prejudice to the accused of admitting the covert audio recording can arise in two ways. First, the convert audio recording is not a complete audio recording of the total conversation between the accused and the complainant. Second, it is submitted the accused has made no admissions (expressed or implied) in relation to the fact in issue that he committed acts of sexual penetration on the complainant the day before.
When I consider the length and detail of the covert audio recording, I am satisfied the context of the topics of the conversation between the parties can be ascertained and weighed by a jury. As to the unrecorded parts of the conversation between the accused and the complainant, the complainant can give evidence about this conversation, and the accused is able to give evidence of this conversation. In those circumstances, I consider the fact that the covert audio recording does not contain the complete conversation between the parties, is of limited prejudice to the accused.
My examination of the transcript of the covert audio recording indicates that the accused does make some implied admissions in relation to sexual behaviour towards the complainant the previous day. He asks the complainant why 'her knickers' and 'her pussy' were wet. He says he was sorry for what he has done, he 'stuffed up' and he 'really regrets what he has done'. Whether they are in fact implied admissions, may be a matter for the jury.
The accused also makes some express denials of sexual behaviour towards the complainant. He says he did not sexually assault the complainant and specifically denies he pulled her knickers off, put his fingers in her and tried to put his penis in her. The denials are relevant to factual matters in dispute referred to in [5]. The denials also inform me that some of the conversation in the covert audio recording must have been about what happened between the two parties the previous day.
The probative value of the comments made by the accused in the covert audio recording outweighs the likelihood of any prejudice to the accused if the covert audio recording is admitted into evidence. Therefore, in exercising my discretion, I would not exclude the evidence of the covert audio recording.
I dismiss the accused's application dated 6 March 2023. The complainant's covert audio recording of her conversation with the accused on 24 March 2020 is admissible as evidence in the accused's trial.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior
28 MARCH 2023
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