Victorian Court of Appeal considers Charter post-Momcilovic

WK v The Queen [2011] VSCA 345 (30 November 2011)


In a recent appeal from an interlocutory decision of the County Court, the Victorian Court of Appeal held, by a majority of 2:1, that s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is applicable to the interpretation of the Surveillance Devices Act 1999 (Vic). Only His Honour Nettle JA considered the implications of the recent High Court decision in Momcilovic v The Queen [2011] HCA 34. However, all three judges agreed that the trial judge in this case:

  • erred in holding that a recording of a private conversation between the defendant (WK) and his alleged victim (DTY) was prohibited under the Surveillance Devices Act, but
  • was correct in admitting a transcript of the recording into evidence, regardless of the privacy issues involved.


WK is alleged to have attempted to procure sex from DTY by threat or intimidation. Crucial to the prosecution case was a recording of a conversation between WK and DTY, made on a tape recorder provided to DTY by the police. WK appealed the trial judge’s decision to admit a transcript of the tape recording into evidence, arguing that it was not authorised by the Surveillance Devices Act and should have been excluded under the Evidence Act 2008 (Vic). Section 6 of the Surveillance Devices Act prohibits the use of a listening device to record a private conversation between two other people without their consent. The trial judge actually issued an interlocutory ruling that the recording was made unlawfully, but, after weighing this fact against its probative value, refused to exclude it.

Given the implications of this provision for human rights, the Court of Appeal (by majority) considered its interpretation must be subject to s32(1) of the Charter, which requires that statutory provisions be interpreted consistently with human rights “so far as it is possible to do so consistently with their purpose.”


The Court of Appeal comprised Maxwell P, Nettle and Harper JJA. Maxwell P began by noting that Victoria Police have to date considered that s 6 of the Surveillance Devices Act does not prevent them from supplying equipment to others to record their own private conversations (as opposed to police recording them directly). This approach, His Honour noted, was vindicated in the case of R v Bandulla [2001] VSCA 202 (a pre-Charter case).

WK contended that a broader interpretation of the “use” of a listening device should include indirect use (through an agent) of such a device to obtain evidence, since the practice had implications for the right to privacy under s 13 of the Charter. If police were free to make recordings of private conversations without “judicial or regulatory supervision,” WK argued, arbitrary interferences with privacy in contravention of s 13 would be the result.

Maxwell P responded that such an interpretation would effectively criminalise accepted police practices, which would amount to an amendment of the legislation rather than a mere reinterpretation. This, he noted, would exceed the Court’s powers as discussed in Momcilovic v The Queen [2010] VSCA 50 (subsequently [2011] HCA 34). His Honour pointed out that s 6(2)(c) of the Surveillance Devices Act specifically exempts law enforcement officers who record a private conversation with the consent of only one party – reinforcing the view that the legislation was not intended to criminalise this aspect of police procedure. In any event, His Honour found no breach of WK’s right to privacy, and concluded that the trial judge was correct to admit this evidence, which is of “very significant probative value.”

Nettle JA agree with Maxwell P that the evidence should have been admitted, but on a slightly different basis. His Honour observed that:

the judgments in Momcilovic v The Queen 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; 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.

Nettle JA said the trial judge had adopted the approach advocated by French CJ and Crennan and Kiefel JJ – effectively he considered s 6 as though there were a conflicting (unqualified) right to privacy in the common law. If he had instead followed the Gummow/Hayne/Bell JJ approach, he would have treated the right to privacy as subject to s 7 of the Charter (the general limitation provision). Choice of this latter approach, according to Nettle JA, might have resulted in a different conclusion because the right to privacy would be subject to “such reasonable limits as can be demonstrable justified in a free and democratic society….”

Nevertheless, Nettle JA ultimately concluded that neither approach would render the police conduct unlawful in this particular case, because the purpose of the Surveillance Devices Act, as reflected in s 11, clearly allow for limitations on the right to privacy for law enforcement purposes. Even if the recording had contravened the Act, His Honour held, the trial judge should still have admitted it under the Evidence Act rules concerning unfair admissions and improperly/unlawfully obtained evidence (ss 90 and 138).

Harper JA found that the applicant had, in the circumstances, “no possible right to privacy” 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.” His Honour therefore found s 32 of the Charter to be irrelevant and agreed that the appeal should be dismissed.

As Nettle JA noted, the Charter’s first major test in the High Court (Momcilovic v The Queen) did not result in clear authority on how lower courts should approach their interpretive duties under ss 7 and 32. As such, the question of whether human rights-consistent interpretations of legislation under s 32 are to be considered in light of the general limitations in s 7 remains open.

The Court of Appeal’s decision can be found online at:

Adam Fletcher is Manager of the Accountability Project at the Castan Centre for Human Rights Law and a volunteer with the Human Rights Law Centre