DPP v KW  VCC (2 May 2011)
The County Court recently handed down a decision in relation to the use by Victoria Police of ‘pretext conversations’ to gather evidence. The matter involved an application by KW to have evidence of a recording of a phone conversation between himself and the complainant excluded in his trial. This recording had been made at a police station using police equipment, although that equipment was operated by the complainant. No warrant had been obtained for the use of this equipment on the basis of Victoria Police’s view that the ‘participant surveillance’ exemption under the Surveillance Devices Act applied to this method of evidence gathering.
The Defendant, and the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), argued that the word ‘use’ in the relevant provision of the Surveillance Devices Act should be interpreted using the Charter and its right to privacy to include the manner in which the police ‘used’ the surveillance device here – by setting up their own equipment and instructing the complainant in how to use it. The Court accepted these submissions and held that the Charter required this section to be read in this more rights protective manner. As a result, police will now have to obtain a warrant under the Surveillance Devices Act before they ‘use’ a surveillance device through another person, as they are required to in all other circumstances.
This is a great result because it requires a level of independent scrutiny when privacy is invaded by police surveillance and closes a perceived loophole in the legislative regime. The invasion of privacy involved in covert surveillance is far more likely to be "reasonable" under s 7 of the Charter if a court has been satisfied that a warrant is justified than if the police have made the decision unilaterally.
The defendant and VEOHRC also argued that the police had breached s 38 of the Charter by failing to give proper consideration to the right to privacy when making the decision to tape KW's conversation. The Court agreed, finding that the police had acted unlawfully under s 38 because there was no consideration of the KW’s right to privacy before deciding to record the conversation. However, the Court held that the right to silence in s 24 of the Charter was not limited by the police because the complainant was not acting as ‘agent’ for the police in the sense developed by the common law. The second ground of unlawfulness under s 38 of the Charter was therefore not made out.
His Honour dealt with the issue of ‘proper consideration’ under the Charter by noting that ‘proper consideration’ of the privacy right in the context of covert surveillance requires the police to seek a warrant rather than doing the considering themselves:
The point is there was not proper consideration of the right the accused had not to have his privacy unlawfully or arbitrarily interfered with. As the great weight of international jurisprudence makes plain the proper consideration of the right not to have privacy unlawfully or arbitrarily interfered with is by having the process independently authorised by the granting of a warrant by a court. This was not done and the unlawfulness in the sense of a breach of s 6(1) of the SDA occurred. (at )
This is an interesting treatment of s 38 and it perhaps conflates the Charter’s ‘act consistently’ command with the ‘proper consideration’ requirement. It appears to require that someone other than the public authority in question do the considering, which might be the result of the requirement to act consistently.
The result of this case was that the unlawfulness arising from s 38 of the Charter and the breach of the Surveillance Devices Act enlivened the Court’s discretion under the Evidence Act to exclude the recording. VEOHRC had argued that the discretion to exclude evidence under that Act should itself be interpreted in a Charter-consistent manner, however the Court decided that because the standard interpretation of that act is not incompatible with Charter rights, it did not need to be interpreted any differently because of the Charter. Judge Mullaly exercised his discretion not to exclude the evidence because the desirability of admitting it outweighed the undesirability:
In my view this does not give curial approval to breaches of the SDA or to warrantless recordings of private conversations by the police. Rather it balances all the particular facts and circumstances of this case. It recognises the unusual nature of the offence to be tried and in particular the role of the spoken word in the elements of the offence together with the high probative value of the evidence. I have considered all the circumstances that lead the informant to obtain the evidence in the way he did. I have considered the heavy weight of the human rights involved and the importance of the state adhering strictly to transparent independent and balanced procedures before interfering with privacy and using the product against someone in a criminal trial. (at )
The defendant is considering appealing the decision not to exclude the disputed evidence.
Sarala Fitzgerald is a Senior Adviser at the legal unit of the Victorian Equal Opportunity and Human Rights Commission