WK v R

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0099

W K	Applicant
v
THE QUEEN	Respondent
and
VICTORIAN EQUAL OPPORTUNITY & HUMAN RIGHTS COMMISSION	Intervener
and
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Intervener

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JUDGES	MAXWELL P, NETTLE and HARPER JJA
WHERE HELD	MELBOURNE
DATES OF HEARING	19 & 31 May 2011
DATE OF JUDGMENT	30 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 345
JUDGMENT APPEALED FROM	DPP (Vic) v K W (Unreported, County Court of Victoria, Judge Mullaly, 2 May 2011)

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CRIMINAL LAW – Trial – Attempt to procure act of penetration by threats – Interlocutory appeal – Evidence – Admissibility – Pretext conversation – Complainant recorded conversation with accused at request of police – Use of recording device provided by police – Whether recording unlawful – Whether device ‘used’ by complainant or by requesting officer – Whether evidence should have been excluded in exercise of discretion – Recording not unlawful – No error in decision to admit evidence – Leave to appeal refused – Crimes Act 1958 (Vic) s 57(1) – Surveillance Devices Act 1999 (Vic) ss 6, 11; Evidence Act 2008 (Vic) ss 90, 138; Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 13(a), 32(1).

WORDS AND PHRASES – ‘Use’, ‘install’, ‘maintain’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms A Richards QC with Mr S R Johns and Ms A M M Kapitaniak	Victoria Legal Aid
For the Crown	Mr G J C Silbert SC with Mr C P Young	Mr C Hyland, Solicitor for Public Prosecutions
For the Victorian Equal Opportunity & Human Rights Commission	Ms K L Walker
For the Attorney-General for the State of Victoria	Ms J Davidson	Victorian Government Solicitor’s Office

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MAXWELL P:

Introduction and summary

This is an interlocutory appeal concerning the admissibility of evidence. More accurately, it is an application for leave to appeal against a ruling of the trial judge admitting into evidence a tape recording of a telephone conversation between the applicant and the complainant (‘DTY’).[1]
[1]Criminal Procedure Act 2009 (Vic) s 295(2).

The applicant is facing trial on one count of attempting, by threats or intimidation, to procure DTY to take part in an act of sexual penetration with him, contrary to s 57(1) of the Crimes Act 1958 (Vic). It is common ground that, if the tape recording were ruled inadmissible, the prosecution case would be ‘eliminated or substantially weakened’, within the meaning of s 295(3)(a) of the Criminal Procedure Act 2009 (Vic).

The facts of the case are straightforward but the issues are of general importance. The tape recording is of what is conventionally referred to as a ‘pretext conversation’, that is, a conversation initiated by a complainant the purpose of which is to elicit admissions from a person alleged to have committed an offence against the complainant.[2] As is usually the case, the pretext conversation took place at the suggestion of investigating police. The Court was told that there would be significant implications for criminal investigation if, as the judge found, the making of the recording was unlawful and/or if, as the applicant contends, the circumstances of its making rendered the recording inadmissible.
[2]See, for example, R v Van Doorn [2004] VSCA 65, [20]; R v Workman (2004) 60 NSWLR 471.

The circumstances were as follows. DTY complained to police that, some time after the end of her relationship with the applicant, he had threatened to publish photos which he had taken of her naked, unless she agreed to have sexual intercourse with him twice a month. The investigating officer (‘officer’) subsequently advised DTY that, without corroborating evidence, he could not proceed to arrest and interview the applicant about the allegation. The officer told DTY

that she could assist by telephoning the accused and engaging him in conversation about the meeting they had [and] trying to talk about what had been spoken about between them.[3]

The complainant said she was willing to assist the investigation in this way.

[3]DPP (Vic) v KW (Unreported, County Court of Victoria, Judge Mullaly, 2 May 2011), [49] (‘Reasons’).

DTY subsequently telephoned the applicant and, in the course of the conversation, he made what the prosecution contends are relevant admissions. The conversation between them was recorded on a tape recorder which the officer had provided to DTY. He had instructed her on how to operate the recorder. It is that recording – or, to be precise, the transcript of the conversation which was recorded – which was the subject of the judge’s ruling.

The threshold issue was whether the making of the recording contravened the Surveillance Devices Act 1999 (Vic) (‘SDA’). Did the officer ‘use’ the device to record the conversation? This is a question of statutory interpretation, to which s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’) is applicable. The second issue was whether, lawfulness apart, the evidence should have been excluded in the exercise of the Court’s discretion under ss 90 and 138 of the Evidence Act 2008 (Vic).

The relevant prohibition is that set out in s 6(1) of SDA, which provides that:

a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation.

The officer was not a party to the recorded conversation and there had, of course, been no consent from the applicant to its being recorded. His Honour held that, in the circumstances, the officer had ‘used’ the device to record the conversation between DTY and the applicant. (The relevant part of the ruling is in the Appendix.) No warrant having been obtained, this was unlawful. His Honour declined, however, to exercise his discretion to exclude the evidence.

Because of the importance of the issues, the parties consented to the bench being enlarged following the conclusion of oral argument. Accordingly, Nettle JA has dealt with the application on the basis of the reasons for decision, the transcript of argument in this Court and the written submissions.

For reasons which follow, I would refuse leave to appeal. Although I have come to a different conclusion from the judge on the question of contravention, the decision to admit the evidence was unimpeachable, in my respectful opinion.

A question of statutory interpretation

The first question is whether the conduct of the officer amounted to ‘installation, use or maintenance’ of the device in question ‘to overhear, record, monitor or listen to’ the conversation between DTY and the applicant. That is a question of statutory interpretation of some importance, as Victoria Police have up to now proceeded on the basis that such conduct did not fall within s 6(1) and, hence, did not require a warrant under s 6(2)(a).[4] The judge correctly took the view, in accordance with the submission of the applicant and of the Victorian Equal Opportunity & Human Rights Commission (‘Commission’), that the interpretation question was to be resolved in accordance with s 32(1) of the Charter.
[4]Reasons, [54]–[57].

Section 6 of the SDA provides as follows:

6 Regulation of installation, use and maintenance of listening devices
(1)Subject to subsection (2), a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation.
…

(2) Subsection (1) does not apply to—
(a)the installation, use or maintenance of a listening device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or
(b)the installation, use or maintenance of a listening device in accordance with a law of the Commonwealth; or
(c)the use of a listening device by a law enforcement officer to monitor or record a private conversation to which he or she is not a party if—
(i)at least one party to the conversation consents to the monitoring or recording; and
(ii)the law enforcement officer is acting in the course of his or her duty; and
(iii)the law enforcement officer reasonably believes that it is necessary to monitor or record the conversation for the protection of any person's safety.

The following definitions, set out in s 3 of the SDA, are relevant:

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 …
private conversation means a conversation carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be heard only by themselves, but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it may be overheard by someone else.

As the High Court has repeatedly emphasised, the task of statutory construction must begin with a consideration of the text itself. For it is the language actually employed in the text which provides the surest guide to legislative intention.[5] The words ‘install’, ‘use’ and ‘maintain’ are ordinary English words. They should be given their ordinary and grammatical meaning,[6] as understood in the context of the Act as a whole.[7]
[5]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(NT) (2009) 239 CLR 27, 46–7 [47]; Commissioner of Taxation v BHP Billiton Ltd (2011) 277 ALR 224, 233 [47].
[6]R v Momcilovic (2010) 25 VR 326, 463–4 [98] and the cases there cited.
[7]See, for example, Singh v Commonwealth (2004) 222 CLR 322, 332–4 [12]–[14].

The inclusive definitions in the SDA confirm that the words are used according to their common understanding:

install includes attach; …
maintain, in relation to a surveillance device, includes –
(a) adjust, relocate, repair or service the device; and
(b) replace a faulty device. …
use of a surveillance device includes use of the device to record a conversation or other activity.[8]

[8]SDA s 3.

Although the prohibition in s 6(1) covers a variety of possible circumstances, it is convenient to take the prohibition in the form most directly relevant here, that is, that ‘a person must not use a listening device to record a private conversation to which the person is not a party’. (As the judge said, this was the ‘real focus’ of the argument.[9])
[9]Reasons, [68].

What does it mean to say that a person ‘uses’ a listening device to record a conversation? It means, in my view, that the person is the operator of, and the one who engages, the recording capability of the device at the time when it is put to use for the purpose of recording the conversation. (I will refer to this as ‘direct’ use.) As a matter of ordinary language, a person (A) does not ‘use’ a thing if another person (B) uses it at A’s request, even if A has provided instruction about how to use it. (Nor, as the New South Wales Supreme Court has recently held in a similar legislative context, does A ‘use’ a listening device when it is worn and operated by B in A’s presence, even though A is aware that the device is being used to record a conversation in which he/she is participating.[10])
[10]DPP (NSW) v Fordham [2010] NSWSC 795, [53].

The point can be illustrated by the example debated in argument, concerning the use of a lawnmower. Where a teenager mows the lawn with a lawnmower provided by the parent, and does so at the parent’s request and after instruction from the parent, it is the teenager and not the parent who uses the lawnmower. It would be a misuse of language, in my view, to say that the parent was ‘using’ the lawnmower. The parent is, instead, enlisting the services of the teenager, who uses the lawnmower to mow the lawn.

So too with a listening device. If a person is in charge – as DTY was – of operating a device so that it records a conversation in which she participates, it is she who ‘uses’ the device for that purpose. It does not cease to be her use merely because she uses the device at the request of, and after instruction from, another person. (I leave aside, for this purpose, the case of a true principal-agent relationship. The act of the agent in the course of such a relationship may be regarded in law as the act of the principal.[11])
[11]See, for example, O’Reilly v Commissionersof State Bank of Victoria (1983) 153 CLR 1, 10–11.

That was the view taken by this Court in R v Bandulla,[12] which concerned the equivalent prohibition in s 4(1)(a) of the Listening Devices Act 1969 (Vic) (the predecessor of the present Act).[13] According to Brooking JA (with whom Winneke P and O’Bryan JA agreed), police had ‘arranged’ for a woman (C), to whom the accused was alleged to have supplied drugs, ‘to record, or have recorded’ conversations with the accused, both at her home and on the telephone.[14] The Court disposed of the issue of contravention in a single sentence, holding that ‘s 4(1)(a) was inapplicable, since the conversations were recorded by [C], who was a party to them’.[15]
[12][2001] VSCA 202.
[13]The prohibition in the 1969 Act was as follows: ‘A person shall not use any listening device to overhear, record or monitor a conversation to which he is not a party’.
[14]R v Bandulla [2001] VSCA 202, [4].
[15]Ibid [14].

On this view, the officer in the present case did not ‘use’ the device to record DTY’s conversation with the applicant. The only person who did so was DTY herself. Although the device did not belong to her, and although she needed the officer’s instruction as to how to operate it, it was she alone, acting of her own volition, who operated the device – engaged its recording capability – so that it recorded her conversation with the applicant.

DTY was not acting under direction or coercion. She was acting autonomously,[16] just as she was when she took her complaint to police in the first place. The decision to record the conversation was hers, and hers alone. That she did so at the officer’s express request does not make it any the less her own act, in my view. It follows, on this view, that there was no contravention of s 6(1), since the prohibition only applies to the use of a device by a person who is not a party to the conversation.
[16]See Stuart v Kirkland-Veenstra (2009) 237 CLR 215, 248 [87]–[89].

On the argument for the applicant, however, an alternative, and broader, interpretation of the word ‘use’ was said to be available. It was submitted that ‘use’ for this purpose included, in addition to direct use of the kind to which I have referred, indirect use of a kind said to be exemplified by what occurred here. This was said to be a ‘possible’ interpretation, within the meaning of s 32(1) of the Charter, which provides as follows:

So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

The argument for the applicant, and the Commission, was that the provisions of the SDA ‘engaged’ the applicant’s right, under s 13(a) of the Charter, not to have his privacy ‘unlawfully or arbitrarily interfered with’. It was submitted that the broader interpretation, encompassing ‘indirect’ use of a listening device, was more compatible with that right than an interpretation of s 6(1) which limited the prohibition to what I have called the ‘direct’ use of a device. That being so, it was submitted, s 32(1) obliged the Court to prefer the alternative, broader, interpretation of the prohibition.

According to the submission, which the judge accepted, the prohibition in s 6(1) would apply to an indirect use, where

a police officer procures another person to physically activate the device but where the circumstances are such that the law enforcement officer is in substance a ‘person who uses a listening device … to record’ the conversation.

What is contemplated here is the following:
·A requests B to operate a listening device in order to record a conversation between B and a third party;
·the request is made, to the knowledge of B, because of A’s view that the recording of the conversation with the third party will advance A’s purposes (including purposes which A is employed to advance);
·A provides B with the device, and instructs her in how to operate it;
·B activates the device as she begins her conversation with the third party; and
·after the conversation is concluded, B turns off the device and returns it, together with the tape on which the conversation has been recorded, to A.

In these circumstances, it was said, the operation of the device by B could properly be characterised as a ‘use’ of the device by A to record a conversation to which A was not a party. It was said by the Commission that this interpretation would avoid ‘arbitrary’ interference with privacy, which would occur if police were free to ‘bring about recordings of private conversations without judicial or regulatory supervision’.

I am not persuaded by that submission. In my view, what is postulated is not a ‘use’ of the listening device by A within the ordinary meaning of the word. It is something quite different, namely, the act (on A’s part) of causing or inciting B to use the device, in order to record a conversation to which B is a party.

If Parliament had intended to prohibit such conduct, it could obviously have done so, but only by making express provision to that effect. Although offences of incitement are well known in the criminal law,[17] it would be most unusual to make it an offence for A to incite B to do something which was not itself an offence, that is, to record a conversation to which B was a party.[18] It is because B’s conduct is lawful that the present case does not attract the principles of ‘innocent agency’, to which both counsel for the Commission and counsel for the Crown referred.[19] In such cases, a crime has been committed but the person charged ‘does not physically undertake some or all of the elements of the offence’.[20]
[17]See, for example, Crimes Act 1958 (Vic) s 321G.
[18]Cf Crimes Act 1958 s 321G; Competition and Consumer Act 2010 (Cth) s 76; O’Sullivan v Truth and Sportsman Limited (1957) 96 CLR 220.
[19]R v Hewitt [1997] 1 VR 301; Pinkstone v The Queen (2004) 219 CLR 444 (‘Pinkstone’).
[20]Pinkstone (2004) 219 CLR 444, 465 [59].

In short, I do not consider that the ‘indirect use’ interpretation is open on the language of s 6(1). For the provision to be read as the applicant contends would instead amount to amending the provision, so as to create an offence of inciting a person to record a conversation to which that person was a party. To take that step would be to legislate, not to interpret, and that is no part of the Court’s function under s 32(1). That was the view of this Court in Momcilovic v The Queen[21] – that being the decision by reference to which this proceeding was conducted, both at first instance and on appeal – and it was emphatically confirmed by six members of the High Court in the subsequent decision on the appeal in that case.[22]
[21](2010) 25 VR 436.
[22]Momcilovic v The Queen (2011) 280 ALR 221, 244 [50] (French CJ), 274– 5, [146(vi)] and 280 [170] (Gummow J, with whom Hayne J agreed), 378, [545] and 384, [565]–[566] (Crennan and Kiefel JJ), 412, [684] (Bell J).

My view of s 6(1) is reinforced by the language of s 6(2)(c), which defines one of the exemptions from the prohibition. That provision permits ‘the use of a listening device by a law enforcement officer’ to record a conversation to which the officer is not a party, in circumstances where at least one of the parties to the conversation consents to it being recorded.[23] The provision is quite clearly speaking of the direct use of the device by the officer, with the consent of at least one of the parties. The present case is quite different. DTY did not consent to the conversation being recorded by someone else. Instead, she agreed to the officer’s request that she record it herself. As I have said, the fact that the device was provided to her by the officer does not alter the conclusion that it was she who used the device to record the conversation.
[23]The exemption only applies if, in addition, the officer ‘reasonably believes’ that the recording is necessary ‘for the protection of any person’s safety’.

In his ruling (set out in the Appendix), his Honour concentrated attention on what had actually occurred, in particular what the officer did before and after DTY recorded her conversations with the applicant. He concluded that ‘this was conduct engaged in by the police that resembled commonplace third party surveillance by the police.’ His Honour interpreted the word ‘use’ by looking at ‘the broader context of what was done by whom to secure a permanent and complete record of the impugned conversation’. On that basis, he upheld the broader interpretation contended for by the applicant.

With great respect, the facts of the particular case could not provide the answer to the interpretive question. Of necessity, it was the words of the statute, as properly construed, which defined the scope of the prohibition. Only after s 6(1) had been construed was it possible to decide whether the prohibition applied to the present case.[24]
[24]See, for example, Commissioner of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287.

‘Install’ or ‘maintain’

Nor, in my view, can it be said that the officer ‘installed’ the listening device to record the relevant conversation. As I have already said, he provided the device to the complainant so that she could use it herself. Once the recording was completed, she gave the device and the micro-cassette back to the officer.[25]
[25]Reasons, [26].

In my view, the notion of ‘installation’ is directed at something quite different, as exemplified by Brown v Palmer.[26] In that case, the offender had purchased a camera with audio microphone and power supply, and a receiver with an aerial and audio and video connections to a monitor. He had placed the camera part of the device in a locker in the staff change-room at the hotel. In a nearby room, he plugged the receiver into a television and attempted to tune it in order to observe the images produced by the camera in the change-room. Williams J concluded that it had been open to the magistrate to conclude that he had ‘installed’ the device by putting the camera in the locker-room and the receiver in the adjacent room.[27] No such act of installation took place in the present case.
[26](2008) 192 A Crim R 18.
[27]Ibid 29 [53].

As to maintenance, the prohibition is only engaged if a person ‘maintains a device to record or monitor a conversation’. It follows, in my view, that there would only be a breach if the maintenance were shown to be so closely connected with the recording of the particular conversation as to constitute the offence of maintaining the device ‘to record’ – that is, for the purpose of recording – that conversation.

In this context, it seems clear that the notion of ‘maintaining’ a listening device was intended to apply to a device which has been installed for the purpose of recording or monitoring conversations. It is easy enough to imagine a device being installed in particular premises, for the purpose of recording conversations between residents of and/or visitors to those premises over a period of time. No doubt such devices require maintenance and Parliament was clearly concerned to prohibit ongoing maintenance of a device which is being used for recording, as well as its initial installation, unless covered by an appropriate warrant.

Plainly enough, that prohibition has no application to the present case. The evidence showed that the officer had put new batteries, and a tape, into the recorder before he gave it to DTY.[28] This amounted to no more than the provision to her of a device in working order, for her to use.
[28]Reasons, [50].

No breach of privacy

The judge concluded that, by reason of the breach of s 6(1) of SDA, the officer had acted unlawfully within the meaning of s 38(1) of the Charter because (on his Honour’s view) he had acted incompatibly with, and failed to give proper consideration to, the applicant’s privacy.[29] (This was relevant, at least indirectly, to s 138(3)(f) of the Evidence Act2008 (Vic), set out below.)
[29]Reasons, [150]–[152].

On the view I have taken, however, the making of the recording was not an act of the officer, but of DTY as a private citizen. No question of an infringement of the Charter arises, therefore. In any case, in my view, the action of DTY did not interfere with the applicant’s privacy. What occurred was an unremarkable exercise by DTY of her right as an autonomous individual to make a recording of a telephone conversation to which she was a party, without informing the other party to the conversation that it was being recorded.

The notion of a ‘private conversation’ is well captured in the definition in the SDA.[30] It is a conversation between two persons which they desire should not be ‘overheard by someone else’. There is nothing in that notion, or indeed in the notion of privacy itself, which prevents one party from surreptitiously recording it. There may be all sorts of reasons why a person may decide to make a recording of a private conversation with another person. The privacy issue is that to which s 6(1) is directed, that is, the ‘overhearing’ of a private conversation by a person who is not a party to the conversation.
[30]See [12] above.

On the other hand, the publication of such a recording does have significant privacy implications, and hence is closely regulated. Under Part 3 of the SDA, the communication or publication of a record of a private conversation is prohibited, subject to the exceptions defined in s 11(2). Under s 11(2)(b), for example, the prohibition does not apply

to a communication or publication that is no more than is reasonably necessary –
(i) in the public interest; or
(ii) for the protection of the lawful interests of the person making it.

Examples readily come to mind. A person may have been threatened with violence by another person, in the course of conversations between them. There is no prohibition at all on the person recording such conversations. Nor, because of s 11(2)(b), is there any legal obstacle to the person communicating the content of those conversations to (for example) family members or to police, in order to secure his/her own protection and to enable appropriate steps to be taken to prevent such threats being renewed or carried out.

So, too, in the present case. On the complainant’s case, she was subjected to what amounts to blackmail. The applicant threatened to embarrass her by disclosing intimate photographs unless she agreed to have sex with him. Understandably, in those circumstances, she went to the police. It is unsurprising, in my view, that she agreed to the officer’s proposal that she record a telephone conversation with the applicant in which she would seek to have him repeat, or admit, the threats he had made.

As I have said, what occurred between DTY and the applicant did not infringe his privacy. On the complainant’s case, the applicant had used an earlier private conversation with her to make the alleged threat. She decided to instigate, and record, another private conversation between them, in order to facilitate the criminal investigation which she herself had initiated. In engaging in conversation with her on the subject of his sexual demands, the applicant took the risk which every person takes in such circumstances – that the conversation might be recorded. Nor, given its content, could the applicant reasonably have expected that DTY would treat the conversation between them as private.

Discretionary exclusion?

Although I have concluded that there was no contravention of s 6(1), it is still necessary to consider whether the evidence should have been excluded in the exercise of the discretions conferred by ss 90 and 138 of the Evidence Act 2008 (Vic). His Honour concluded that neither of those discretions should be exercised in the applicant’s favour. This Court would only interfere with that conclusion if the applicant demonstrated error of the kind set out in House v The King.[31]
[31](1936) 55 CLR 499; see DDP v M D [2010] VSCA 233, [27].

Section 90 provides:

Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—
(a) the evidence is adduced by the prosecution; and
(b)having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.

In relevant part, s 138 provides as follows:

Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(a) improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law—

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

…
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account—
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

The trial judge helpfully directed the attention of counsel to the decision of the New South Wales Court of Criminal Appeal in Pavitt v The Queen.[32] Like the present case, Pavitt concerned the admissibility of the recording of a pretext conversation between a complainant and the person he alleged had sexually offended against him (the ‘suspect’). Following the initial complaint, the police had obtained a warrant authorising them to listen to the conversation between the complainant and suspect. No question of unlawfulness therefore arose.
[32](2007) 169 A Crim R 452 (‘Pavitt’).

Before the conversation took place, the police asked the complainant to think of what he might say to the suspect. Once the telephone call commenced, the officer who was present provided to the complainant notes prompting him as to questions he might ask. The complainant said in evidence that the call ‘was a means by which he hoped the [suspect] would discuss the allegations he was making against him’. He also understood that the police were ‘conducting the taped conversation to gather evidence to assist them in prosecuting the [suspect]’.[33]
[33]Ibid 465 [16].

The appeal against conviction challenged the decision of the trial judge not to exclude the recording in exercise of the ss 90/138 discretions. The joint judgment of McColl JA and Latham J in Pavitt[34] contains a detailed exposition and analysis of relevant Australian and Canadian authorities, concluding with the following invaluable summary:
[34](2007) 169 A Crim R 452.

In our view, without being exhaustive, the following propositions relevant to the present case can be extracted from the authorities to which we have referred concerning the admissibility of covertly recorded conversations:
(a) the underlying consideration in the admissibility of covertly recorded conversations is to look at the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned;
(b) if that freedom is impugned, the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted;
(c) even if there is no unfairness the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards;
(d) the question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and/or improper include whether the accused had previously indicated that he/she refused to speak to the police;
(e) the right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required:
(i) as a threshold question, was the evidence obtained by an agent of the state?
(ii) was the evidence elicited?

(f) a person is a state agent if the exchange between the accused and the informer would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents;
(g) absent eliciting behaviour on the part of the police, there is no violation of the accused’s right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police;
(h) admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the state agent for the conduct of the conversation may also be important; and
(i) the fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful.

We would add that views may differ about whether a complainant is a state agent, even if the conversation is recorded in circumstances facilitated by the police. For our part we would not readily apply the label of state agent to a complainant speaking to a suspect who had not been charged, nor refused to speak to police. Rather we would look at the whole relationship as revealed by the participants’ past history and what is revealed by the actual conversation. It may be relevant to consider whether the police scripted the conversation.[35]

[35]Pavitt (2007) 169 A Crim R 452, 487–8, [70]–[71] (citations omitted).

McColl JA and Latham J concluded that the trial judge had not erred in declining to exclude the evidence. It was relevant, in their Honours’ view, that:

·the suspect had not declined to be interviewed by the police. He ‘took the risk when he continued the conversation with the complainant … that the complainant might speak to the police;’[36]
[36]Ibid [76].
·there was nothing in the circumstances in which the conversation occurred which indicated that the suspect’s statements were unreliable. ‘He could have withdrawn from it at any time’;[37]
[37]Ibid [79].
·it could not be concluded that the complainant was an agent of the police:
As we have already said, we find it difficult to conclude that the complainant was an agent of the police. Superficially, looking merely at the relationship between the complainant and the police, he was their agent, because the conversation would not have taken place as it did, that is it would most probably not have been recorded if the police had not obtained a warrant and arranged for the complainant to participate in it. However even if the complainant was a state agent, in our view he did not exploit any special characteristics of his relationship with the [suspect].[38]
·the conversation would not have been materially different if, as a matter of form, the police had not arranged it; and

·the conversation could not be viewed as ‘the functional equivalent of an interrogation’.

[38]Ibid [80].

The judge in the present case adopted the statement of principles in Pavitt and, after analysing the evidence, made similar findings, as follows:

·looked at as a whole, the conversation between DTY and the applicant was not the equivalent of an interrogation;
·DTY was not acting as ‘an agent of the state’;
·there was no exploitation by DTY of her relationship with the applicant (and there was no evidence of vulnerability on his part);
·the applicant was not obligated to speak to DTY or participate in the conversation;
·the applicant was not tricked and no lies or falsehoods were told to him;
·DTY did not elicit information in a form or manner that compromised the applicant’s right to silence;
·the applicant had not previously refused to speak to police;
·the applicant expected the conversation to happen (that is, he had asked DTY to call him with her answer); and
·the applicant could have expected the conversation would be reported to the police, and in fact even suspected the conversation was being recorded.

With respect, this analysis is unimpeachable. The evidence has ‘very significant’ probative value, as his Honour found. There is no basis to interfere with his Honour’s exercise of discretion to admit the evidence.

The principles developed in the cases, as summarised in Pavitt,[39] must of necessity be applied on a case-by-case basis.[40] The decisions relied on by the

applicant, and by the Commission, turned on materially different factual circumstances. Thus, in R v Roba[41] and again in R v Dewhirst,[42] the recording of the relevant conversation was made by an undercover police officer; in Duarte v The Queen[43] and again in P G v UK,[44] the relevant recording was made on equipment which police themselves had installed for the purpose.

[39](2007) 169 A Crim R 452.

[40]Em v The Queen (2007) 232 CLR 67, 92 [69].

[41][2000] VSC 96.

[42][2001] VSC 172.

[43][1990] 1 SCR 30, 36.

[44][2001] ECHR 550, [9]–[12].

NETTLE JA:

I, too, consider that the trial judge was not wrong to rule that the tape recording of the telephone conversation between the applicant and the complainant is admissible evidence. But my reasoning is different.

Unlike the judge, I am not sure how s 6(1) of the Surveillance Devices Act 1999 (‘SDA’) should be construed in light of s 32 of the Charter of Human Rights and Responsibility Act 2006 (‘the Charter’). The problem is that the judgments of the High Court in Momcilovic v The Queen[45] do not yield a single or majority view as to what is meant by interpreting a statutory provision in a way that is compatible with human rights within the meaning of s 32 of the Charter. As it appears to me, French CJ and Crennan and Kiefel JJ took a view of s 32 which is similar to that adopted by this court in Momcilovic;[46] Gummow, Hayne and Bell JJ took a broader view of s 32, which attributes greater significance and utility to s 7; and Heydon J concluded that s 32 is invalid. Assuming that s 32 is not invalid, one is left with a choice between the other two approaches.[47]

[45](2011) 280 ALR 221.

[46](2010) 25 VR 436 (Maxwell P, Ashley and Neave JJA).

[47]Great Western Railway Company v Owners of SS Mostyn [1928] AC 57, 73 (Viscount Dunedin); Victoria v The Commonwealth (1971) 122 CLR 353, 382 (Barwick CJ); Federation Insurance Ltd v Wasson (1987) 163 CLR 303, 314 (Mason CJ, Wilson, Dawson and Toohey JJ).

In this case, the judge adopted the approach advocated by French CJ and Crennan and Kiefel JJ. That is to say, s 32 requires ‘statutes to be construed against the background of human rights set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms … [it] applies the interpretation of statutes in the same was as the principles of legality but with a wider field of application’. As I read the judge’s ruling, he reasoned that the right to privacy created by s 13 of the Charter adds an unqualified right of privacy to the background of common law rights and freedoms against which s 6 of the SDA falls to be construed. The approach favoured by Gummow, Hayne and Bell JJ would include s 7 of the Charter in the interpretive process and so treat the right to privacy created by s 13 as qualified by s 7.

‘Use’ is a verb of many meanings. The President has referred to one of them. The Oxford English Dictionary lists 25 of them. I agree with the judge that, in the sense of at least one of those possible meanings, a policeman who equips a complainant with a tape recorder, and procures the complainant to record a telephone conversation between the complainant and a suspect, uses the tape recorder to record the conversation.[48] The question is whether that is the sense of ‘use’ which Parliament intended.
[48]Qui per alium facit, per seipsum facere videtur.

Arguably, that depends on whether the right to privacy created by s 13 of the Charter is or is not to be read as subject to s 7 of the Charter. That is to say, if s 6 of the SDA is read in isolation against the background of an unqualified right to privacy, one might suppose that Parliament intended the protection afforded by s 6 of the SDA to apply as much to an act of police eavesdropping effected through the agency of a complainant as to an act of police eavesdropping effected without the assistance of an agent. Contrastingly, if the right to privacy created by s 13 of the Charter is taken as subject to s 7 of the Charter, one might reach a different conclusion.

On balance, however, I have concluded that the result in this case is the same under either approach to s 32 of the Charter. For if s 6 of the SDA is construed in light of s 11 of the SDA, as I think it must be, it appears that the object of s 6 is more limited than when it is read in isolation. So construed, it presents as designed to prevent a third party recording a conversation to which he or she is not party and thereby infringing the privacy of the participants – there being no infringement of privacy in a participant in a conversation making a record of the conversation for his or her own use – while s 11 is designed to prevent infringement of privacy by communication or publication of the record to third persons.

In effect, therefore, s 6(1) of the SDA, and thus the meaning of ‘use’ in that section, is similar to the purpose and meaning of ‘use’ in s 12F(1) of the Australian Federal Police Act 1979 (Cth); and s 11 of the SDA is similar in its operation to s 12F(2) of the Commonwealth Act.[49]
[49]Barker v The Queen (1994) 54 FCR 451, 470–471; Medina v The Queen (1995) 84 A Crim R 316.

Consequently, as long as it is the complainant who operates the device and uses it, the recording of the conversation does not contravene s 6. But it would be otherwise if the device used by the complainant were part of equipment being used by the police to listen to and record the conversation remotely. Then, there would be an infringement of privacy of the conversation instantaneously upon transmission of its content to the remote location and, in those circumstances, the police would ‘use’ the recording device to record the conversation within the meaning of s 6.[50]
[50]R v Lieske (2006) 204 FLR 1, 6 [13].

Similar considerations inform the meaning of ‘install’ and ‘maintain’. Accordingly, I agree with the President that the police in this case did not install or maintain a recording device.

It follows, in my view, that there was no infringement of s 6 of the SDA.

If, however, there were any infringement of s 6 of the SDA involved in the recording of the conversation, I think that the judge was right to rule that the record of the conversation should not be excluded under s 90 of the Evidence Act 2008. The police did not act in defiance of the law. The informant considered, for good reason, that he was acting in accordance with it. And there is no reason to doubt the reliability of the contents of the conversation.[51]
[51]Em v The Queen (2007) 232 CLR 67, 104–105 [112] (Gummow and Hayne JJ).

Equally, assuming that there were a breach of s 6, I consider that the judge was right that, for the purposes of s 138 of the Evidence Act, the desirability of admitting the evidence outweighed the undesirability of admitting evidence in the circumstances which obtained.[52]
[52]See and compare R v Truong (1996) 86 A Crim R 188, 196–7 (Miles CJ).

For those reasons, I would dismiss the application for leave to appeal.

HARPER JA:

This application for leave to appeal against an interlocutory decision made by a County Court judge has as its central issue the proper construction of s 6(1) of the Surveillance Devices Act 1999. That sub-section provides that, subject to the exceptions enumerated in sub-s (2), ‘a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation.’ The penalty if the offender is a natural person is a maximum of two years’ imprisonment, or a fine of 240 penalty units, or both.

It follows, however, from the manner in which the substantive provision is framed that, if the person recording the conversation is a party to it, no offence against the section is committed. That being so, this application turns upon whether or not a police officer, who was not a party to the conversation, committed an offence against the Act. He, in the course of his duty, without having obtained a warrant, supplied a listening device to a woman, the complainant, who then used it to recorded a private conversation between her and the applicant. She had previously complained to the police that the applicant was blackmailing her. One may readily enough assume that the policeman viewed his conduct as an innocent transfer of possession of a listening device for the equally blameless purpose of doing his duty by fighting crime. The applicant’s position is strikingly different. He contends that the action of the police officer was far from being innocent. On the contrary, it was itself both a criminal offence and a breach of the applicant’s human rights. He submits that it was the policeman, or perhaps both the policeman and the complainant, who used the listening device to record his private conversation with her. According to the applicant, the result is not only that the police officer is in breach of the Act, but also that that breach is a serious infringement of the applicant’s right to privacy and his right to silence. The electronic record of the conversation – during which, it is alleged by the Crown, he furthered his attempt to blackmail the complainant - is therefore inadmissible in evidence and cannot be used by the prosecution in its case against him. He relies in particular on s 138 of the Evidence Act 2008, the effect of sub-section (1) of which is to forbid the reception of evidence obtained by means which were directly or indirectly improper or unlawful ‘unless, given the defect in the means by which it was obtained, the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.’

The applicant also relies upon s 90 of the Evidence Act 2008. That section is headed “Discretion to exclude admissions”, and provides that:

In a criminal proceeding the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if –
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.’

Having been supplied with the recording equipment, the complainant telephoned the applicant. He was expecting the call. According to the account which she had previously given to the police, he had initially received an equivocal response to his proposition that, unless (despite her subsequent marriage to another man) she agreed to continue her sexual relationship with him, he would distribute to her husband, other members of her family, and her friends, photographs of her engaging in sexual conduct with him. He wanted a definite answer. She declined to give it then and there, but told him (in effect) that she would get back to him with it once she had given his demand further thought. She did not tell him that she had subsequently reported his attempt at blackmail, or that the police had supplied her with the means of recording the conversation during which his proposition would be further discussed.

Armed with the equipment supplied to her by the police, the complainant made the foreshadowed answering call. During the course of the conversation which followed, the complainant told the applicant that she ‘definitely’ would not agree to do what he wished. He replied: ‘You will not agree, right? Then let’s expose it all.’

In my opinion, this conversation, if accepted at its face value, is evidence of the actual commission of a crime. It is not an admission of past wrongdoing. It is itself the illegal act. And if that is right, the conversation was not a ‘pretext conversation.’ It is one which the most compelling reasons of public policy demand be brought to light. No right of privacy shelters a criminal caught in the act from the disclosure, by the witnesses to it, of the commission of the crime. Yet considerable time and effort was expended in an attempt to convince the Court to the contrary.

Much of the argument was based on the fallacy that there was on the facts of this case some right of privacy in the applicant which was protected by the law. The applicant relied, in particular, upon s 13 of the Charter of Human Rights and Responsibilities Act2006 (‘Charter’), which provides, so far as is presently relevant, that a person has the right not to have his or her privacy unlawfully or arbitrarily interfered with. But once it is appreciated that the appellant had, in the particular circumstances of this case, no possible right to privacy, there could be no interference with it. And he had no such right because an offender who is caught in the act cannot require that the direct evidence of those who saw or heard the commission of the crime be excluded on the basis that otherwise some right he or she has to his or her privacy will be infringed. The rule of law cannot co-exist with a right to privacy in the commission of one’s crimes.

If this articulation of principle is correct, then any issue about the reach of s32(1) of the Charter becomes irrelevant to a resolution of the issues in this case. The section provides that, so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. This of course applies to s 6(1) of the Surveillance Devices Act. In the present circumstances, however, there is no relevant right of privacy, and therefore no possible interpretation which is incompatible with it.

Section 90 of the Evidence Act 2008 is also a provision which, in the circumstances of this case, has no work to do. It could never be unfair to this accused to use against him the evidence of the very conversation by which he advanced his desire to blackmail the complainant.

This leaves only s 138 of the Evidence Act. As I have noted above, it forbids the reception of evidence obtained by means which were directly or indirectly improper or unlawful ‘unless, given the defect in the means by which it was obtained, the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.’

The applicant submits that the evidence in question was obtained unlawfully because it was recorded in breach of s 6 of the Surveillance Devices Act. It is therefore necessary to ascertain whether that submission is correct; and, if it is, whether the desirability of admitting the evidence of the conversation outweighs the undesirability of admitting it, given the means by which that evidence was obtained.

The applicant contends that s 6 of the Surveillance Devices Act is invoked because the police knowingly installed, used or maintained the recording device used by the complainant to record her private conversation with him, he not having given his consent. It was the police who instructed the complainant on the use of the device, including how to place its earpiece in her ear. It was the police who, through the agency of the complainant, used the device. And it was the police who maintained it so that it would function as designed.

But the latter circumstances cannot, in my opinion, by themselves amount to either installation, or use, or maintenance within the meaning of those expressions in the section; and no police officer was directly involved in overhearing, recording, monitoring or listening to any conversation to which the applicant was a party (apart from conversations between him and the police). Having provided the complainant with the wherewithal to record the conversation, the only police officer then immediately involved with the case (the informant) withdrew from sight or sound of her, leaving her entirely alone.

In Brown v Palmer,[53] an employer was (he claimed) minded to test security equipment he had purchased overseas. His chosen method for carrying out this test was to place a camera in one of the lockers in the staff change-room, facing a shower, and a receiver in another room. Williams J held that the employer ‘installed’ the equipment he wished to operate. By contrast, the police in this case merely told the complainant how to operate the recording device, and how to place the earpiece in her ear. That does not amount to installation.
[53](2008) 192 A Crim R 18.

It is true that the long-term maintenance of the equipment in question was the responsibility of the police. But it was not ‘maintained’ for this individual episode, in contrast to a device being maintained in a building in which it had been installed for surveillance purposes.

A contention which was faintly pressed is that a police officer, possibly but not necessarily the informant, monitored that conversation. I disagree. The verb ‘monitor’ is not defined in the Act, but in the Shorter Oxford Dictionary[54] its definition reads:

Check or regulate the quality of (a radio transmission, television signal, etc). Listen to and report on (radio broadcasts, telephone conversations, etc.). Observe, supervise, keep under review; measure or test at intervals, esp. for the purpose of regulation or control.

[54]Leslie Brown (ed), The New Shorter Oxford English Dictionary on Historical Principles (Clarendon Press, Oxford, 1993).

The Macquarie Dictionary[55] relevantly defines the verb as ‘to check, observe, or record, the operation of (a machine, etc.), without interfering with the operation; to supervise, observe critically.’ In neither dictionary is there support for the conclusion that a recorded conversation is monitored by a police officer who, as in this case, retreats from earshot of it, and does nothing else in relation to either it or the listening device, until after it has ended. In my opinion, no such monitoring occurred.
[55]A Delbridge et al (eds) The Macquarie Dictionary (The Macquarie Library, 2^nd ed, 1991).

The principal point of contention in argument on this application was whether the police ‘used’ the device to record the conversation which the applicant contends should be excluded from the evidence which will go to the jury. I agree with Nettle JA, for the reasons which he gives, that the police did not ‘use’ the relevant equipment in the sense which Parliament intended.

Even if this conclusion be incorrect, the history of the interpretation of the section, and of its predecessor, the Listening Devices Act 1969, points to there being no unfairness in the process. And that is true regardless of whether or not a right of privacy is invoked.

If the applicant is correct, a procedure long adopted - if not hallowed - by the police, and accepted by the courts as a legitimate and efficacious means of combating crime, is itself a criminal offence the principal element of which is the mere provision of a listening device to someone who then uses it lawfully. If that is the clear intention of Parliament, then effect must be given to it. It would, however, be a surprising result. It would mean that one of those who used the listening device – the complainant, who had it in her possession and control, and who both activated and otherwise operated it – was not guilty of anything; but the other person involved - the police officer who lent it to her but did not otherwise use it - was liable to be imprisoned for two years. It would also mean that evidence of the relevant conversation, given orally from memory by the complainant, would be admissible; but the best evidence of that conversation, the tape recording of it, would not go to the jury.

It is true that the policeman who handed the listening device to the complainant was not a party to the conversation which she subsequently had with the applicant. That element of an offence against s 6 was therefore present in this case. But if Parliament intended to forbid the police from lending a listening device to a complainant who was willing to assist the police in preventing her being blackmailed, it could readily have drawn the legislation so as to make its intention clear. The insertion of the words ‘directly or indirectly’ after the word ‘knowingly’ might have been enough.

The Surveillance Devices Act was preceded by, and repealed, the Listening Devices Act 1969. The latter included s 4, which relevantly provided by sub-s (1) that a person shall not use any listening device to overhear, record, monitor or listen to any private conversation to which he is not a party, or communicate or publish the substance or meaning of any private conversation so overheard, recorded, monitored or listened to. Exceptions were made for use in legal proceedings; where consent had been given by the other party or parties; and where the communication was made for the protection of the party’s lawful interests or was no more than reasonably necessary in the public interest, or by the police, customs or other properly authorised persons acting in the course of their duty.

In her second reading speech on the Surveillance Devices Bill, the then Attorney-General (Jan Wade) described the Listening Devices Act as providing ‘significant protection to private conversations from eavesdropping’ and as prohibiting ‘the communication or publication of records or reports of private conversations, except in limited circumstances.’[56] She added that:

The use of listening devices has been regulated in Victoria since 1969. The bill takes the basic model for the regulation of listening devices in the Listening Devices Act 1969 and applies it to a broader range of surveillance devices.[57]

[56]Victoria, Parliamentary Debates, Legislative Assembly, 25 March 1999, 191 (Jan Wade, Attorney-General).

[57]Ibid.

The bill became law. It thus extended to ‘a broader range of surveillance devices’ the protection given by the Listening Devices Act to private conversations. It is therefore reasonable to assume that Parliament was content with the extent of, and did not seek to enlarge, the limitations which had previously been placed upon the use of listening devices.

Those limitations had by then been examined by the High Court. Some 15 months before the Attorney’s second reading speech, that Court had delivered judgment in two cases (one originating in Queensland, the other in Victoria) which it had heard jointly. In R v Swaffield; Pavic v The Queen,[58] admissions which had been secretly recorded had in two unrelated trials been admitted into evidence. After declining to answer questions during a formal police interview, Swaffield had made his admissions to an undercover member of the Queensland police. For his part, Pavic when interviewed refused to comment, but later spoke by telephone to a friend (a man named Clancy) who had been fitted with a microphone by, and subsequently recorded the damning conversation on behalf of, Victoria Police.
[58](1998) 192 CLR 159.

Pavic did not rely upon any breach of s 4 of the Listening Devices Act. The admissions were received into evidence on his trial for murder, and his conviction on that charge was upheld by the Court of Appeal. A further appeal to the High Court was also dismissed. Both his and Swaffield’s case involved a consideration of what has been called the ‘fairness’ (or sometimes the ‘unfairness’) discretion:[59] that is, the discretion to exclude evidence not because the police have acted unfairly but because it would be unfair to an accused to use his or her statement against that accused.[60]
[59]The terms are used interchangeably in Swaffield.
[60]Van der Meer v The Queen (1988) 62 ALJR 656, 666.

Neither Swaffield nor Pavic took objection to the admission of the confessional statements on the ground that they were made involuntarily, or on the ground that the taking of the statements was illegal or so contrary to public policy that they ought to be excluded.[61] The Court not only did not query this, but the Listening Devices Act was not cited in any of the three separate judgments which the Court handed down; and four of the five judges[62] were of the opinion that Pavic’s appeal should be dismissed. Indeed, Toohey, Gaudron and Gummow JJ, while holding[63] (as did Kirby J)[64] that Clancy was an agent of the State, said that ‘nothing which the police did in relation to Pavic was illegal.’
[61](1998) 192 CLR 159, 167 [8] (Brennan CJ).
[62]Brennan CJ and Toohey, Gaudron and Gummow JJ, Kirby J dissenting.
[63](1998) 192 CLR 159, 203-204 [100].
[64]Ibid, 221 [157].

After examining the relevant principles, Brennan CJ turned to their application in the case of each of the appellants. His Honour said:

[31]In Swaffield's case, the Court of Appeal [of the Supreme Court of Queensland] allowed the appeal because, in the view of the majority, the evidence of Swaffield's admissions to Constable Jacob Marshall, the undercover police officer who had gained Swaffield's confidence, ought to have been excluded. Consistently with the role he was purporting to play, Constable Marshall had not given Swaffield any caution before leading the conversation to the point where he elicited the inculpatory admissions from Swaffield. The circumstances in which those admissions were made throw no doubt on their voluntary nature or on their reliability. I would therefore consider the case under the public policy discretion.
[32]Helman J, with whom Fitzgerald P agreed, observed that, if the evidence were admitted:
‘the requirements of the Judges’ Rules could be avoided by the simple expedient of the investigating police officer's assuming a suitable disguise and then proceeding to interrogate the suspect.
His Honour concluded that the trial judge:
was clearly wrong in failing to give sufficient weight to the protection of the appellant's right to silence, and as a result of that error his discretion miscarried.
[33]The ‘right to silence’ to which his Honour referred was simply the entitlement of Swaffield, whom the police believed to be guilty of … arson …, to be cautioned by any police officer who proposed to question him about that alleged arson. Giving that content to the ‘right’, it is correct to say that the trial judge did not give weight to Swaffield's ‘right to silence’. But it would be a mistake to assume that there is some general ‘right to silence’ wider than or different from the privilege that any person enjoys not to answer questions asked of him about an alleged offence by persons in authority, his entitlement to be treated in a lawful and proper manner by persons in authority engaged in investigating an offence and the immunity from the drawing of adverse inferences from his refusal to answer questions about the offence asked by persons in authority. In Swaffield's case, Constable Marshall, who was relevantly a person in authority, deliberately represented himself not to be a police officer in order to secure answers to questions which Swaffield had earlier told the police that he would not answer. True it is that Constable Marshall had adopted an undercover guise in order to pursue investigations into drug offences, not into the arson offence. There was nothing improper in Constable Marshall adopting that guise in order to obtain evidence of drug offences, but Constable Marshall went outside the investigation into drug offences. He deliberately sought admissions relating to the arson which Swaffield had previously refused to make to the police, as he was entitled to do.
[34]There is a public interest in ensuring that the police do not adopt tactics that are designed simply to avoid the limitations on their inquisitorial functions that the courts regard as appropriate in a free society. In the particular circumstances of this case, the majority of the Court of Appeal gave great weight to that interest. Against that interest, the public interest in having Swaffield's admissions available to the court on his trial for arson has to be weighed. Pincus JA dissented. There is much to be said for either view. This court can determine which view ought to have prevailed but when the question touches the standards and methods of police investigation in a particular case, it is undesirable for this court to intervene except in cases where the decision of the court below has proceeded on an erroneous principle or is otherwise manifestly wrong. In Swaffield's case, that condition is not satisfied. I would therefore dismiss the appeal in that case.
[35]In Pavic's case, the confessional statements were made to Clancy whom Pavic knew as a friend. Clancy was not a police officer or other person in authority over Pavic. There was no impropriety in the police obtaining Clancy's consent to the recording by Clancy of his intended conversation with Pavic. A serious crime had been committed and the means adopted for its solution and for the securing of evidence against the prime suspect were quite legitimate. The investigation of crime is not a game governed by a sportsman's code of fair play. Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity ‘to invent plausible falsehoods’.
[36]The fact that Clancy was regarded as trustworthy by Pavic is an indicator of the reliability of the admissions made to Clancy. There was no public interest to be served by rejecting those admissions. The Court of Appeal in Victoria was therefore right to dismiss Pavic's application for leave to appeal.[65]

[65](1998) 192 CLR 159, 184-187.

The Listening Devices Act was cited in the judgment of this Court in R v Juric.[66] The applicant was suspected of murder. He was interviewed by the police in June 1996 while in custody for other matters, but exercised his right to silence. Before that, however, on 17 May that year, a co-accused (a man named Evans) co-operated with police in recording a telephone conversation between the co-accused and the applicant. No warrant had been obtained. On the other hand, the conversation had been initiated by a call made by the applicant from prison to the home of his girlfriend. Evans had been present when that call was made. The recording was admitted into evidence as Exhibit ‘O’, a decision which was the basis for one of many grounds of appeal. The presently relevant ground was to the effect that the judge erred in allowing that exhibit to go to the jury.
[66](2002) 4 VR 411 (Winneke P and Charles and Chernov JJA).

Because other grounds succeeded, the Court held that it was not necessary to deal at any length with Exhibit ‘O’. It did, however, say this:[67]

The conversation occurred when the applicant was in custody and Evans was conversing with Juric by telephone from [the girlfriend’s] house. The conversation was recorded and Evans and the applicant are shown by the tape to have discussed at length a subject matter which was not expressly identified. Evans said in evidence that the subject matter was generally the murder of the deceased. If Evans’s evidence were accepted by the jury, the conversation incriminated Juric in the murder of the deceased.
This ground invokes the Listening Devices Act 1969, claiming that the provisions of the Act have been contravened. It was accepted that no warrant had been obtained under the Act for the recording of the conversation. The exclusion of the evidence was sought at the trial, but the judge ruled that the conversation was admissible.
…
[Senior counsel for the applicant] submitted that the use of a listening device to investigate the offence brought into play s 4(1)(a), since police who were not a party to the conversation were intending to overhear the conversation and potentially use it. He submitted that a warrant … was required and that the test for whether or not the taped conversation was admissible was a question of fairness and what was reasonably necessary in the public interest. The judge made no finding that publication was no more than was reasonably necessary in the public interest, and his submission was simply that the judge’s ruling showed that his Honour had not turned his mind to the question of public interest; accordingly, the question was simply whether or not there had been a breach of the Act … [Counsel] accepted that Evans could not have been stopped from giving evidence of what had been said in this conversation, his submission simply being that without a warrant the public interest test applied, and in the absence of a finding by the judge that it was in the public interest to permit the evidence to be given, the evidence was illegally obtained and should not have been admitted.

[67](2002) 4 VR 411, 447 [67] –[68], [70].

It is not clear whether or not counsel submitted that the co-accused was an agent of the police. At all events, the judgment made no reference either to that point or to the possibility that, acting through Evans, the police had themselves used a ‘listening device to overhear, record, monitor or listen to any private conversation’.

The Court nevertheless had reason later to examine the question of agency because another ground of appeal was that the trial judge erred in refusing to exclude the evidence of covertly taped conversations between the applicant and a fellow prisoner, a man named Foley. In August 1997, more than a year after the applicant’s unproductive police interview in June 1996, Foley agreed with the police to engage the applicant in conversation about the murder, and to record (using a device supplied by the police) what was said. A warrant was obtained, and the conversations duly took place. They were recorded, as arranged between Foley and the police. While speaking to Foley in these circumstances, the applicant denied the murder but expressed a willingness to fabricate an alibi. Indeed, the applicant was so enthusiastic about the prospect of Foley recruiting a suitably mendacious alibi that, despite his denial of involvement in the murder, the recordings amounted, in the words of the Court, to ‘forensic devastation’.[68]
[68](2002) 4 VR 411, 445 [61].

Although in the instance involving Foley (as opposed to that involving Evans) a warrant had been obtained, the relationships between - on the one hand - the applicant and Foley, and - on the other - the police and Foley, were relevant as going to the fairness of the process by which the forensically devastating material was obtained; and hence its admissibility. The Court described the relationships in the following terms:

Examination of the Foley tapes, as we have said, provides no support for [senior counsel for the applicant’s] submission that Juric was pressed into talking with Foley, or that he was in some way intimidated by Foley or by the latter’s position as a senior prisoner. The tapes do not leave one with the impression that Juric felt he had to speak to Foley, or that his conversations with him were anything other than voluntary. Indeed, they suggest rather a conversation between equals but in which Juric felt a desire to confide in Foley and seek his advice no doubt because of the latter’s long prison experience.
On the other hand Foley had been given a very wide-ranging brief by [the police], which in our view permitted him to raise any issue relevant to Juric’s defence. [The police officer’s] purpose was not simply to obtain confirmation of the earlier supposed confessions. He intended Foley to raise broad issues with Juric, the effect of which was to authorise Foley in effect to discuss any subject with Juric. Although no specific mention was made at the outset of entrapping Juric in a false alibi, [the police officer] had not limited the issues Foley could raise. When he became aware of the contents of the first conversation in which the false alibi had been discussed, [the police officer’s] instructions to Foley were to pursue it. All of this was to occur after Juric had been interviewed, had declined to answer further police questions on legal advice, had been detained in custody and committed for trial, and a presentment had been filed charging him with the murder of the deceased.

In thus describing the role of the fellow prisoner, the Court in my opinion distinguished that role from that of the complainant in the present case. It did this by approving the distinction (suggested by the Supreme Court of Canada in R v Broyles[69]) between on the one hand an agent of the State and, on the other, a police informer who was not such an agent. In Juric the Court described the Canadian position as follows:
[69][1991] 3 SCR 595.

In R v Broyles the accused, who was charged with murder, was arrested and cautioned that he need not say anything, but was later visited in prison by a friend wearing a recording device. The visit had been requested and facilitated by investigating police. The accused was questioned about the killing and answered his friend’s questions. The evidence was later excluded in the application of the Canadian Charter of Rights and Freedoms. Iacobucci J in giving the judgment of the Court discussed the meaning of elicitation and the factors to which one should look to test the relationship between the State agent and the accused. His Lordship said[70] that the right to silence would only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the State at the time the accused made the statement. The first question therefore was, was the person who allegedly subverted the right to silence an agent of the State. Iacobucci, J then suggested[71] the following test –
‘Only if the relationship between the informer and the State is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a State agent for the purposes of the exchange. I would, accordingly, adopt the following simple test: Would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the State or its agents?’

Dealing next with the question whether the information or statement had been ‘elicited’ by the agent of the State, Iacobucci, J suggested the following as being the relevant factors -
‘The first set of factors concerns the nature of the exchange between the accused and the State agent. Did the State agent actively seek out information such that the exchange could be characterised as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.
The second set of factors concerns the nature of the relationship between the State agent and the accused. Did the State agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the State agent and the accused? Was the accused obligated or vulnerable to the State agent? Did the State agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?’

[70]Ibid 607.

[71]Ibid 608.

In the present case, the applicant had, in the words of the trial judge, previously arranged ‘that the complainant was to call him with her answer.’ The applicant was therefore expecting, and may well have been looking forward to, the call made to him by the complainant. There is in these circumstances no reason to suppose that the exchange which in fact took place would have been materially different had the police not intervened. In other words, even without the intervention of the State or its agents, the exchange between the applicant and the complainant would have taken place in the form and manner in which it did take place. It follows that the ‘simple test’ postulated by Iacobucci J has in this case been met.

In my opinion it also follows that the police did not exploit their relationship with the complainant to extract a statement from the applicant; rather, the prosecution case – supported by the recording – is that he exploited the conversation by pressing his attempt to blackmail her. She was not a police informer. He was not induced into making an admission. Rather, he was intent on committing a criminal offence. There was no relationship of trust between him and his victim. If the prosecution case is accepted by the jury, the conversation shows that he was intent on exploiting her; and (if it were relevant) she for her part certainly did not trust him. Moreover, the complainant was not a third party. She was the victim. She therefore had an interest, quite different from that of a police informer, in participating in the conversation. In my opinion, she does not meet the relevant characteristics of an agent as described by Iacobucci J and adopted by this Court in Juric.

Three weeks after the hearing of the appeal in Juric, but before judgment in that case was handed down, this Court heard and determined the appeal of Luzlim Bandulla.[72] Winneke P was again a member of the Court, as he was in Juric; and that case must have been fresh in his mind. As in each of Pavic, Juric and the case presently under appeal, Bandulla too was one in which the admission of a recording of the appellant’s conversation with another was in issue. The person by whom the recording was made – at the request of the police - was a woman named Camilleri, a drug user and distributor who dealt with Bandulla. I need only set out three paragraphs[73] of the judgment of Brooking JA, with whom the President and O’Bryan AJA agreed:

Luzlim Bandulla, by his own account, is an Albanian who came here in February 1996 on a false passport he had bought in Italy. Two months later he applied to the Australian authorities for refugee status. In May 1996, when his application was still pending, the authorities told him that if he was having difficulty meeting his basic living expenses the Australian Red Cross might be able to help him. At about the same time he started getting the dole. But Luzlim Bandulla was, so the Crown says, even at that early stage of his career in this country, in need neither of charity nor of unemployment benefits. For he was already hard at work, beginning to establish his business as a merchant. He dealt in heroin. Some 12 months ago he was found guilty of trafficking in that drug during the 28 months between August 1996 and November 1998 and sentenced to six years' imprisonment with a non-parole period of four years six months. Now he wants to appeal against that conviction.

…
The Listening Devices Act 1969 (still in force at the relevant time) is invoked and it is said that the provisions of that Act have been contravened. A warrant under s 4A was granted on 25 November 1998, near the end of the period covered by the presentment. Of course this warrant, granted only two days before the applicant's arrest, could not support the use of a listening device during the major part of the period in which the police were interesting themselves in the applicant's activities and so could not support the recording of telephone conversations or face-to-face conversations in Camilleri's flat which preceded the last three days of the investigation. According to the officer in charge of the investigation, no warrant under the Listening Devices Act was sought in respect of those conversations, since it was considered that recording was not prohibited by s 4 of that Act. Section 4(1)(a) was inapplicable, since the conversations were recorded by Camilleri, who was a party to them, and s 4(1)(b) prohibited, subject to s 4(2), not the use of a listening device, but the communication or publication of the substance or meaning of a conversation. …
The judge accepted this view and ruled that communication or publication by Camilleri was reasonably necessary in the public interest and added that the ‘lawful interests’ provision might also be applicable. One could add that the provision about duty might also fall for consideration. In any event, s 4(1)(b) begins with an exception relating to legal proceedings. The judge also said that if there had been some illegality he would not in the exercise of his discretion exclude the evidence. I see no reason to differ from his Honour's conclusions. I would add that it should be borne in mind that all these conversations with the applicant were had by persons called as witnesses and it would be remarkable if they could not give oral evidence of these conversations.

[72] R v Bandulla [2001] VSCA 202.

[73][2] and [14] – [15].

It is clear that the Court did not see the failure to obtain a warrant as resulting in a breach of the Listening Devices Act. It is equally clear, because the Court made no reference to it, that the Court did not regard Camilleri as an agent through whom the police were themselves effecting the recording of Bandulla’s conversation with her. Perhaps this was something to which the Court did not turn its mind. If so, especially given the composition of the bench, that is almost certainly because the matter was neither raised by counsel nor something which occurred to the Court as being arguable.

The same may be said of R v Van Doorn.[74] The applicant was, after a trial, convicted of numerous sexual offences against two children, KB and JS. He was also convicted of a single offence against a third. All were girls under the age of 16. He was over 60. The offending took place over a short period at the beginning of the year 2000. When the third of his victims told her mother what had happened to her, the mothers of the other two were also informed, and the police became involved. On 10 March 2000 they attended the home of one of the girls and gave instructions to the two principal victims about the operation of a micro cassette recorder with which, it was agreed, the two would record telephone conversations between them, or either of them, and the applicant.
[74][2004] VSCA 65.

Two such conversations took place on 13 March. The applicant’s sole original ground of appeal (nine others were later added) was that the trial judge erred in admitting into evidence the recordings thus made. They were highly incriminating. They included clear references to past sexual misbehaviour with the girls, and equally clear indications of a desire that it continue.

The Court, of which Winneke P was again a member (the others being Vincent and Eames JJA) dismissed the application for leave to appeal. The applicant, who was self-represented, submitted that the recorded telephone calls should have been excluded on the grounds that the circumstances in which the material was obtained were both unfair and contrary to public policy; and he argued that the two girls were being ‘used’ by the police to ‘trick’ him into making incriminating statements by asking leading and manipulative questions. This technique, it was contended, was the equivalent of using the girls as police agents for the purpose of subverting the applicant’s free choice to speak or remain silent. The applicant pointed to the fact that two calls were made. According to him, this in itself was an indication that the police were using the children to waylay, rather than simply facilitating conversation with, the applicant.

Although the issue of agency was squarely raised, the Surveillance Devices Act is not cited in the judgment. Winneke P, who delivered the principal judgment, with which the other members of the Court agreed, said that in his opinion there was nothing in the applicant’s submissions. Before citing the passage at [35] of the judgment of Brennan CJ in Swaffield, from which I have quoted at [20] above, his Honour continued:

In my view, there is nothing in this ground. The judge was correct in the exercise of his discretion to admit these telephone calls. The calls were part of a legitimate investigative technique employed by the police in seeking to determine whether serious indictable offences had been committed. The use of such ‘pretext conversations’ between alleged victims and suspected offenders are, and have long been, a common investigative tool used by police in investigating alleged sexual offences committed against young people. These conversations were recorded before the applicant was taken into custody or questioned by police. There is, and was, no suggestion that they were recorded unlawfully (cf Juric at 446-8); nor were they recorded in circumstances in which it could be said that the applicant's ‘rights to silence’ were circumvented (cf Pavic). The trial judge was entitled to conclude that this was simply one more occasion where KB and JS were engaging in a conversation with the applicant to ‘set up’ an arrangement where they could obtain from him money and/or cigarettes in exchange for sexual favours. It was the girls' claim that there had been many similar previous exchanges. This was not a case where the applicant was in police custody and/or had made it clear to authorities that he was exercising or proposing to exercise his right to silence (cf R v Pfennig (No1) (1998) 192 CLR 159). There was no infringement here of the rights conferred by s 454A of the Crimes Act 1958 (Vic). The events were simply a necessary part of the police investigations to establish whether the stories being told by the girls could be confirmed. The making of such calls, and the recording of them, in those circumstances was neither unfair, nor unlawful.

In my opinion, it is in these circumstances open neither on principle nor authority to conclude that any breach of s 6 of the Surveillance Devices Act occurred when the complainant recorded her conversation with the applicant. She was not then acting as an agent of the police. Her use of the device was, therefore, not police use of the device. If the police did not use it, and if its use was thus hers alone, no offence against the Act is committed.

The applicant further argues that to allow the police to do what they did in this case would be to allow any third party – the media, a snooper, anyone – to connive with a party to a private conversation to have it recorded with the third party’s equipment, and then exploit the material thus obtained. This, it is said, would be a gross interference with the privacy of the unsuspecting party to the conversation.

The answer, it seems to me, is to be found in s 11(1) of the Surveillance Devices Act. It provides as follows:

11Prohibition on communication or publication of private conversations or activities
(1)Subject to subsection (2), a person must not knowingly communicate or publish a record or report of a private conversation or private activity that has been made as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device.

The maximum penalty is, in the case of a natural person, two years’ imprisonment or a fine of 240 penalty units, or both.

There are exceptions to the prohibition. These extend to, among other things, a communication or publication that is no more than reasonably necessary in the public interest, or for the protection of the lawful interests of the person making it, or is used in the course of legal proceedings.

This provision, especially when read with the exceptions to it, is important. It further demonstrates, it seems to me, that Parliament was not concerned to protect the privacy of someone in the circumstances of the applicant. Acts of Parliament must be construed in the context of the entire Act, and s 11 is in this sense relevant when interpreting s 6. In any event, s 11 is a barrier to the acceptance of the proposition that the construction of s 6 which seems to me to be correct would expose any of the parties to a private conversation to an invasion of privacy. A third party who assisted one or more of the conversationalists to effect a recording of that which the parties to the conversation said to each other, but who did not himself or herself overhear, record, monitor or listen to it, could not subsequently use the recording except as permitted by s 11.

For these reasons, leave to appeal should not be granted. Indeed, it is in my opinion appropriate to record that this was not an appropriate case for certification by the trial judge. It is true that the evidence in question, if ruled inadmissible, would substantially weaken the prosecution case. On the other hand, that is a necessary but not sufficient condition for the grant of a certificate. It cannot be that whenever an objection, no matter how unmeritorious, is taken to evidence vital to the prosecution case, the judge must issue a s 295 certificate. The judge retains a discretion, to be exercised after consideration of the benefits and disadvantages in the administration of justice, in taking one course or the other. In this case, the trial was certain to be shorter than the hearing of the application for leave to appeal, once the time required for consideration of the submissions and the writing of the subsequent judgment were taken into account; and this when the application for leave necessarily affected this Court’s capacity to deal with expedition with its other business. Were the applicant not convicted, the application for leave would be unnecessary, the disruption to the Court’s business would not have occurred, and time and costs would not have been wasted. Had the trial resulted in a conviction, the applicant would have been able on the application for leave to appeal to raise all the matters raised on this application, but with this Court being in a position to consider the issues thus raised without the disruption which inevitably accompanies applications for leave to appeal against interlocutory decisions.

The application for leave to appeal should be dismissed.

APPENDIX

(Extract from trial judge’s ruling – emphasis added) [75]

[75]DPP (Vic) v KW (Unreported, County Court of Victoria, Judge Mullaly, 2 May 2011) [126]‑[133] (‘Reasons’).

The question becomes is the interpretation of s6(1) urged by the prosecution based on the previous decisions the only possible interpretation or the one that most advances the human rights here engaged. Is any other interpretation possible which is more compliant with the Charter and is consistent with the overall purpose of the SDA without ignoring the earlier decisions and what was argued and determined by the courts in those cases.
That requires me to return to the facts of this case. In my view a helpful way to consider the facts so as to elicit the possible interpretations of the words of s6(1) is by reference to the following topics and questions:
·What did the informant plan and what did he do to get ready for the recording before speaking to the complainant and obtaining her consent to participate in the recording of the conversation?
·What did the informant say to the complainant as to what he wanted her to do and why he wanted her to do it?
·What things were done by the complainant in order for the recording to occur?
·What did the informant do after the conversation was successfully recorded with the product of the recording?

These questions can be answered by reference to the evidence set out above. What can be distilled from that evidence is that this was conduct engaged in by the police that resembled commonplace third party surveillance by the police. It has the appearance of third party surveillance in all respects save for the fact that at the point in time when the words of the impugned conversation were spoken by the accused and the complainant the informant deliberately chose to be outside rather than inside the room where the complainant was.
The informant did everything necessary in advance to enable the recording to occur. He sought the complainant’s consent and did so in a context where she was reassured that everything would be done by the informant to ensure that the recording could occur and that she would not have to do anything off her own bat, as it were, to record the conversation save for pushing a button. The complainant was given a script to read before the conversation commenced identifying that the conversation was to be recorded and the reasons for recording the conversation. As discussed already the informant adopted the standard police procedure of sitting outside the room in the mistaken belief that the legislation required that. Once the conversation was over everything thereafter was as it would be with third party surveillance- the informant took the tape, checked that voices had been recorded, received a summary of it from the complainant, had the tape transcribed and translated. In the meantime the accused was arrested and the subsequent record of interview was conducted with the informant armed with details from the summary of the conversation. The fact that the conversation was recorded was immediately used to expose that the accused lied in the interview and that lie is now relied on as part of the evidence inculpating the accused is also relevant in determining this issue. The product of the use of the recording device has always been with the police as a powerful part of the investigation and then as an important part of the prosecution of the accused.
The argument of the prosecution is that the term use is restricted to who pushed the button on the device. This interpretation seems to limit the term use to the concept of ‘operate’ the listening device. I consider that this is not the only possible interpretation and it is not the proper one in the sense that it is not consistent with the purposes of the SDA itself or that it promotes or protects the relevant human rights.
Lest it be thought that I consider that the onus at this point is on the prosecution I should expressly say that in my view the alternative interpretation put in favour of the accused is one that is consistent with the objects of the SDA and is one that does promote and protect the relevant human rights.
It seems to me that another possible interpretation is to see the term use in the broader context of what was done by whom to secure a permanent and complete record of the impugned conversation. The informant wanted the conversation recorded to advance the investigation and any potential prosecution and to achieve that he needed to use a listening device in order that the conversation was recorded and thereby preserved so that mere memory was not all he had to rely on. In advance he arranged for that device to be made available by adhering with a strict authorisation procedure within the police force hierarchy. He ensured the complainant could operate the device. She was the conduit for the recording of the conversation. Having successfully used the device to obtain a record of the conversation the informant did everything necessary to ensure that the investigation and prosecution was advanced as consequence of him using a listening device to obtain the permanent record of the conversation.
It seems to me that to discover the proper interpretation of the term use, it is necessary to keep in mind the immediate context of the word in s 6 (1), it is the ‘use of a listening device’ to ‘record’ a private conversation. In other words it is to utilise the machine to record what was being said. It is not merely to operate the machine for that moment by pushing a button but to utilise a machine which has the capacity to record a conversation for that purpose. Such an interpretation fits more comfortably with the definition of the word use in s3 of the SDA:
‘use of a surveillance device includes use of the device to record a conversation or other activity’.

[2011] VSCA 345

30 November 2011