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Wednesday, 06 March 2013 10:35

W K v The Queen (Court of Appeal) - Jul 2010

An accused sought to appeal pre-trial decision to allow a taped phone conversation between him and the complainant to be used as evidence against him in his criminal trial.

The tape recording is what is referred to as a "pretext conversation": a conversation initiated by the complainant to elicit admissions from the person alleged to have committed an offence against them. As they do normally, the pretext conversation took place at the suggestion of investigating police and was recorded at a police station with police equipment. The accused sought to exclude the use of the conversation as evidence on the basis that it was obtained in breach of the Surveillance Devices Act 1999 and in breach of Victoria Police's obligation to act compatibly with the human rights in the Charter.

The Commission intervened to make submissions about the nature of the Victoria Police's obligations under the Charter and the application the Charter's interpretation obligation to Victorian surveillance and evidence laws due to the extent evidence gathering by police can interfere with the right to privacy.

The Court of Appeal held that there had been no breach of the Surveillance Devices Act 1999 because the complainant had made the recording in her capacity as a private citizen and there had been no breach of the accused's right to privacy. The Court held that, even if there had been, the recording should not be excluded from evidence in his trial.

See the WK v The Queen - Court of Appeal decision (30 November 2011) here

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