Monday, 9 May 2011

Pretext recording contrary to Charter and Evidence Act?

Edit: While 'pretext' conversations arranged by the police without an appropriate warrant seem likely to be excluded, a staged conversation initiated entirely be a third party (such as a complainant) apprarently does not lead to the same result: F M J v The Queen [2011] VSCA 308.

A colleague put me on to a recent case summary from the VGSO about a pre-trial decision of the County Court in DPP v KW. I haven't been able to find an online copy of the ruling, so all I can refer to is the summary above.

It seems the police were investigating an allegation of attempting to procure sexual penetration by threat or force, contrary to Crimes Act 1958 s 57.

The complainant was apparently provided a recording device and left alone to telephone the accused. (This is sometimes called a 'pretext conversation', so called because the complainant telephones the suspect on the pretext of discussing the alleged offence, when it is really being recorded by the police as an investigative tool. Police now more frequently resort to such conversations in an attempt to obtain confessions and admissions, particularly in sexual investigations.)

The complainant recorded the conversation. No police were present. There was no warrant issued under the Surveillance Devices Act 1999. Section 6 of that act provides:

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.

Penalty: In the case of a natural person, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both; In the case of a body corporate, 1200 penalty units.

(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 County Court considered the police involvement and the effect of Charter s 13(a) (right to privacy), and concluded that the police knowingly used a listening device to record a private conversation. (I'm not sure why s 6(2)(c) didn't apply in the circumstances.)

Despite this, the Court concluded discretionary exclusion of the recording under Evidence Act 2008 s 138 was not required.

It will be interesting to see what comes of this decision. Because it's a County Court case — and a pre-trial ruling at that — strictly speaking, it creates no precedent: Whittaker v Delmina Pty Ltd [1998] VSC 175 at [17] - [18]; Valentine v Eid (1992) 27 NSWLR 615.

But it would be foolhardy to simply ignore it.

There are a few appellate cases considering pretext conversations.

A critical question is if the complainant is acting as an agent of the police, and if the pretext conversation is an attempt to subvert or avoid the operation of and protection provided by s 464H, such as considered by the High Court in R v Swaffield; Pavic v The Queen (1997) 192 CLR 159.

In R v East (2005) 154 A Crim R 1, the NT Supreme Court considered the meaning of private conversation. Applying Victorian authority, the court held that a private conversation is determined by considering the objective circumstances surrounding the conversation, rather than the subjective intent of an individual involved in the conversation. So, if one party to the conversation wants or indicates they want the conversation to be overhead or recorded, it isn't a private conversation.

In R v Workman (2004) 60 NSWLR 471 a sexual assault allegedly occurred in Sydney. The complaint was made after the victim moved to Queensland, and so investigated by Queensland police. A pretext conversation occurred between the victim in Queensland and the defendant in New South Wales, recorded by a device placed next to a speaker phone. In Queensland, recording a conversation is not illegal if the person using a listening device is a party to the conversation. This is also the case in Victoria. However, in NSW, this was illegal under the Listening Devices Act 1984 (NSW) s 5(1). Despite this, the tape recording was properly received into evidence.

There are more cases, often turning on questions of entrapment or involuntariness. One risk for the police is if a court concludes the process was surreptitious or some attempt at circumventing legislative protections for a suspect. In R v Dewhirst (2001) 122 A Crim R 403 the Supreme Court excluded recorded conversation between an undercover police officer in the police cells and a suspect: not because of the covert nature of the questioning, but rather because it was planned to elicit further information from the accused without legislative protection and regardless of what happened during a previous formal interview. (It turned out that he exercised his right to silence, which probably only aggravated the decision to question him in the cells.)

The Court concluded with reference to an earlier case:

The courts, however, will be vigilant to ensure that the legislative safeguards accorded to suspects are not circumvented as a matter of mere investigative convenience or expediency: R v Roba [2000] VSC 96 at [56].

Though the facts there were different — and it wasn't really a pretext conversation — it neatly encapsulates the concerns of the courts in such cases. Seemingly that didn't occur in KW, but pretext conversations will nearly always be subject to close scrutiny for such vices.


Anonymous said...

"The 'great weight of international jurisprudence' demonstrates that proper consideration of the privacy right is achieved by having the process independently authorised by the granting of a warrant."

What's the impact on CCTV?

Jeremy Gans said...

CCTV isn't in trouble unless it is in a private place (or, perhaps, filming private acts....)

Habeas Corpus said...

Nice to see the Charter doing what it was designed to do - getting big players to re-think the way they do their business. Contrary to the point of view of a few anarchists the point of the Charter isn't to start a war between the 3 arms of government, it's to get everybody playing from the same rulebook. Maybe this will get that "dialogue" restarted ...?

If VGSO thought that the cops using someone "wearing a wire" to make a phone call didn't infringe the right to privacy just because they didn't give their patsy particular instructions then they really need to get some better advice down there.

The only surprise here is that the evidence wasn't excluded under 138. This will go for an interlocutory for sure.

LM said...

Does anybody know where I can get a copy of this case?

Ian Somerfield said...

I hope you don't mind if I add my own thoughts on this issue, reproduced from my post over at

Game Overland

More embarassment for the Chief Commissioner of Victoria Police today as it turns out his force has breached the Charter of Human Rights and Responsibilities Act 2006. The County Court has ruled that his members have breached the right to privacy in the Charter by recording "pretext phonecalls" with suspects without a warrant.

This latest gaff follows the Government refusing to support Simon Overland's decision to sack his deputy, Sir Ken Jones. Overland now denies sacking Jones as it is apparent he has no authority to do so, but admits he told Jones to clear out his desk on Friday.

With the $10 million IT bungle, the Police Union bringing a 'no confidence' motion on him this week, the management in-fighting and now this, it seems unlikely that Overland will serve out the remainder of his 3-year contract.

Posted by Ian Somerfield at 11:48 AM

Jeremy Gans said...

HC, I agree on the general point of the Charter and that 'rethinking' is the whole point.

But, I'm not as convinced as you that the ruling on the SDA was correct. The Vic Parl clearly chose for a 'third party only' model of surveillance regulation, and this ruling arguably contradicts that purpose. Also, Charter s. 13 only bars 'unlawful' or 'arbitrary' interferences in privacy. I'm not saying the judgment is wrong - actually it's quite compelling - but reasonable minds could differ.

On exclusion: again the issue is close, but it seems a bit rough to exclude when the Vic Police were relying on established precedent and when (I'd say) the Charter issue was not clear. The important point is that the arguments will be dramatically different for unwarranted pretext conversations in the future.

Caen said...

Another case that is worth mentioning regarding pretext conversations is R v Lieske [2006] ACTSC 97 (It is available on LexisNexis but not on Austlii). There, the court rejected the evidence in part on s85 grounds, holding that the complainant was a person known to be capable of influencing the decision whether a prosecution should be brought. The court noted that the conversation was really in the nature of an interrogation that was controlled by the complainant "rather than the give and take of a discussion". The court held that it couldn't be satisfied that it was unlikely that the reliability of any admissions (which were characterised as a failure to deny guilt) was adversely affected.

There was also a successful argument on s90 grounds, given that the police seemingly arranged the pretext conversation to subvert the accused's right to silence and the procedural safeguards provided by a formal interview.

Ben Stein said...

There are lots of parallels here with Coco v R. Whatever the Victorian Parliament may have originally intended through the introduction of the Surveillance Devices Act 1999 that has to be interpreted via s.32 of the Charter in light of its s.13, no arbitrary or unlawful interferences. There's a complete system of judicially-sanctioned surveillance that the authorities chose to try and end-around. Sub-s.6(1) of the Surveillance Devices Act is an absolute prohibition on monitoring private conversations without each party's consent and neither (a) nor (b) nor (c) apply. To claim that the monitoring was necessary for the protection of anyone's safety, rather than for evidence gathering purposes, would strain credulity. 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. While that might previously have been understood to mean both parties, it does not distort the purposes of the Act greatly if, with reference to s.13, its meaning is that either party reasonably expects that the conversation is private. In interpreting s.6 this way it is not even necessary to contemplate conversations recorded by one of the parties, only a private conversation to which the person is not a party.

Anonymous said...

I have an electronic copy of this ruling. (in full)

I couldn't find an email address to send it to.

Would you like it?