Tritton v R and Birchall v R

The Full Court of the Supreme Court of the Northern Territory considered appeals by Tritton and Birchall against their convictions for offences under the *Criminal Code* (NT). The appeals concerned the admissibility of evidence obtained through covert surveillance and the proper application of the "unlawful sexual intercourse" provisions of the *Criminal Code*.

The central legal issues before the Court were whether the evidence obtained via covert surveillance was unlawfully obtained and, if so, whether it should have been excluded under section 130 of the *Northern Territory Evidence Act*. The Court also had to determine whether the trial judge had correctly interpreted and applied the elements of the offences of unlawful sexual intercourse, particularly in relation to the issue of consent.

The Court held that the surveillance, while conducted without a warrant, was not unlawful in a manner that mandated exclusion of the evidence under section 130. It reasoned that the surveillance was authorised by relevant legislation and that the circumstances did not give rise to a breach of privacy that would justify exclusion. Regarding the sexual offences, the Court clarified that the prosecution bore the onus of proving the absence of consent beyond reasonable doubt, and that the trial judge's directions on this matter were adequate. The appeals were dismissed.