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Court of Criminal Appeal 30 June 2004

Regina v Workman

[2004] NSWCCA 213

Also reported as (2004) 60 NSWLR 471
Sexual offences
CRIMINAL LAW AND PROCEDURE SEXUAL OFFENCES OFFENDER SPEAKING ON TELEPHONE IN NSW PROPOSED WITNESS ON VOIR DIRE ALLEGATION OF CONFABULATION SENTENCE

Citation: Regina v Workman [2004] NSWCCA 213
Court: Court of Criminal Appeal, New South Wales
Date: 30 June 2004
Judge(s): Grove J, Dowd J, Sperling J

Background

The appellant was convicted in the District Court of multiple sexual offences against a complainant who was between approximately seven and fifteen years of age when the offences occurred. The complainant was the daughter of the appellant's de facto partner. Following conviction, the appellant received an aggregate sentence of eight years nine months imprisonment with a non-parole period of six years three months.

A central piece of evidence at trial was a recorded telephone conversation between the complainant and the appellant. In September 2000, the complainant, then residing in Queensland, telephoned the appellant in Inverell, New South Wales from a Queensland police station. A detective in an adjacent room captured the conversation acoustically, using a recorder placed near a speaker phone. This technique, known as a "pretext" call, was consistent with Queensland police protocol and was explicitly lawful under Queensland legislation.

The appellant challenged both his conviction and, in the alternative, his sentence. The conviction challenge focused on whether the recorded conversation should have been excluded from evidence.

  • Whether the recording of the telephone conversation was "improperly obtained" within the meaning of section 138 of the Evidence Act 1995 (NSW), given that an equivalent recording made in New South Wales would have contravened the Listening Devices Act 1984 (NSW)
  • Whether the trial judge erred in admitting the recording, or alternatively in failing to exercise the discretion under section 138 to exclude it
  • Whether a proposed witness on voir dire (a natural therapist who had consulted with the complainant) should have been permitted to be cross-examined on the issue of confabulation
  • Whether the sentences imposed were manifestly excessive

Decision

The Court dismissed the appeal against conviction. The recording did not contravene any Queensland law: under the Invasion of Privacy Act 1971 (Qld), a party to a conversation may lawfully record it using a listening device. Nor did the recording contravene the Commonwealth Telecommunications (Interception) Act 1979, because the acoustic capture method did not intercept information from telephone lines or electronic mechanisms.

The central question was whether the conduct was "improper" under section 138, even though it was not unlawful in the jurisdiction where it occurred. The Court held it was not. Sperling J, in additional observations agreed to by Dowd J, reasoned that different Australian state parliaments have legitimately struck different balances between freedom of action and the right to privacy. Conduct that conforms with the laws of the state in which it is carried out cannot properly be characterised as "improper" under section 138 simply because equivalent conduct would be unlawful in New South Wales.

On the voir dire issue concerning the natural therapist, the trial judge ruled against permitting cross-examination. However, the application was subsequently not pressed by the defence at the hearing itself, and no live ground of appeal remained on that point.

On sentence, the Court granted leave to appeal but dismissed the sentence appeal. The offences were described as objectively serious, committed against a girl over many years spanning her childhood and early teenage years. The specifications of non-parole periods were found to be within the sound exercise of discretion, and no lesser sentences were found to be warranted.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Evidence obtained in conformity with the laws of the state where the conduct occurred is not "improperly obtained" under section 138 of the Evidence Act 1995 (NSW) merely because equivalent conduct would contravene a NSW statute if performed here.
  • Acoustic recording of a telephone conversation via a speaker phone does not amount to interception under the Telecommunications (Interception) Act 1979 (Cth), following R v Oliver.
  • Under Queensland's Invasion of Privacy Act 1971, a party to a private conversation may lawfully record it using a listening device, creating a meaningful contrast with the NSW position under the Listening Devices Act 1984.
  • Sperling J's concurring observations clarify that section 138 was not intended by the NSW Parliament to treat conduct as "improper" simply because it diverges from NSW law, where that conduct is expressly lawful in the jurisdiction where it took place.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that a finding of special circumstances does not bind a sentencing judge to any particular arithmetical reduction in the non-parole period; the exercise remains discretionary and fact-specific.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 138
- Listening Devices Act 1984 (NSW), s 5(1)
- Invasion of Privacy Act 1971 (Qld), s 43(2)(a)
- Telecommunications (Interception) Act 1979 (Cth)
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Oliver (1984) 57 ALR 543
- The Queen v Swaffield & Pavic (1997) 192 CLR 159
- R v Tillot (1995) 38 NSWLR 1
- Regina v M [2002] QCA 486
- R v Broyles [1991] 3 SCR 598