W K v The Queen

(2011) 33 VR 516; [2011] VSCA 345

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Evidence
3. › Admissibility
4. › Pretext conversations
5. › Recording of conversation between complainant and accused at request of police
6. › Whether recording unlawful
7. › Whether police officer 'used' listening device
8. › Surveillance Devices Act 1999 (Vic), s 6(1)
1. Criminal Law
2. › Evidence
3. › Admissibility
4. › Discretion to exclude
5. › Improperly or illegally obtained evidence
6. › Whether desirability of admitting evidence outweighs undesirability
7. › Evidence Act 2008 (Vic), ss 90, 138
1. Statutory Interpretation
2. › Meaning of 'use'
3. › Whether indirect use through another person constitutes 'use'
4. › Surveillance Devices Act 1999 (Vic), s 6(1)
5. › Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 13(a), 32(1)
1. Criminal Law
2. › Evidence
3. › Admissions
4. › Right to silence
5. › Whether complainant was agent of the state
6. › Whether admissions elicited
7. › Fairness discretion

Quick Take

A police officer who provides a listening device to a complainant and instructs her on its use does not 'use' the device within the meaning of s 6(1) of the Surveillance Devices Act 1999 (Vic), where the complainant alone operates the device to record a conversation to which she is a party. No warrant is required for such recordings. The s 32(1) Charter interpretive obligation does not extend to reading 'use' so broadly as to encompass indirect use through another person, as this would amount to legislative amendment rather than interpretation.