WK v R

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.