WK v R

Case [2011] VSCA 345 30 November 2011

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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,…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading WK v R

Details

AGLC: W K v The Queen [2011] VSCA 345
Case: [2011] VSCA 345
Decision Date: 30 November 2011

CaseChat Overview and Summary

The case of WK v R involves an interlocutory appeal by the accused, WK, against the decision of the County Court of Victoria to admit evidence obtained via a recording device provided by the police. The accused was charged with attempting to procure an act of penetration by threats, a serious criminal offence under the Crimes Act 1958 (Vic). The legal dispute centred on the admissibility of a recording of a conversation between the accused and the complainant, which was covertly made by the complainant at the request of the police.

The central issue before the court was whether the recording was unlawful, and thus, inadmissible under the Evidence Act 2008 (Vic) and the Surveillance Devices Act 1999 (Vic). Specifically, the court had to determine whether the complainant or the police officer who requested the recording used or installed the recording device, as these actions could render the recording unlawful. The accused argued that the recording was obtained in breach of the complainant's Charter of Human Rights and Responsibilities Act 2006 (Vic) rights, specifically the right to privacy, and therefore should be excluded under s 138 of the Evidence Act.

The Court of Appeal found that the recording was not unlawful as the complainant was not using the device in the sense of installing or maintaining it. Instead, the police officer was the one who requested the recording and provided the device, and thus the complainant's actions did not constitute a use of the device. The court further held that there was no error in the trial judge's exercise of discretion not to exclude the evidence under s 138 of the Evidence Act. Consequently, the appeal was dismissed, and leave to appeal to the High Court was refused.

Orders