AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 14 March 2014

DW v R

[2014] NSWCCA 28

Also reported as (2014) 239 A Crim R 192
Sexual offences
EVIDENCE ADMISSIBILITY SURVEILLANCE DEVICES ACT 2007 APPEAL AND NEW TRIAL MISDIRECTION AND NON DIRECTION CRIMINAL LAW

Citation: DW v R [2014] NSWCCA 28
Court: NSW Court of Criminal Appeal
Date: 14 March 2014
Judge(s): Ward JA (with Harrison J and R A Hulme J agreeing)

Background

The appellant was convicted by a jury on 15 of 16 counts relating to sexual offences against his natural daughter, who was between 12 and 14 years old at the time of the conduct. The charges included aggravated indecent assault, incitement to aggravated acts of indecency, use of a child for pornographic purposes, and possession of child pornography. Nude photographs of the complainant were found on computers and a USB stick at the family home, and further pornographic images were seized from the appellant when he was arrested in Western Australia.

The appellant's defence at trial was that his daughter had blackmailed him: he claimed he had taken only photographs of her breasts at her own insistence, that she had threatened to go to police if he refused, and that he had paid her lump sums of up to $300. He gave this account both in a police interview and again in evidence at trial.

A central piece of Crown evidence was a covert recording made by the complainant on her mobile phone during a face-to-face conversation with the appellant. The complainant placed her phone on "record" and concealed it in her pocket without the appellant's knowledge. The recording captured the appellant directing her to try on her bikini and to show him things "regularly over the next week or so." The admissibility of this recording was a principal ground of appeal.

  • Whether the covert recording fell within the exception in s 7 of the Surveillance Devices Act 2007 (NSW) because it was "reasonably necessary for the protection of the lawful interests" of the complainant who made it.
  • Whether, even if the recording was within that exception, the trial judge erred in admitting it under s 138 of the Evidence Act 1995 (NSW), which requires a court to exclude unlawfully or improperly obtained evidence unless its probative value outweighs the prejudice to the accused.
  • Whether the trial judge failed to give adequate directions to the jury about tendency evidence or the limited use of the recorded conversation.
  • Whether any errors, individually or cumulatively, caused a substantial miscarriage of justice.

Decision

Admissibility under the Surveillance Devices Act

Ward JA undertook a detailed analysis of s 7 of the Surveillance Devices Act 2007, which prohibits the installation or use of a listening device to record a private conversation, subject to exceptions. One exception applies where the person making the recording is a party to the conversation and the recording is "reasonably necessary for the protection of the lawful interests" of that person. Her Honour concluded that the complainant's recording fell within this exception. Given the complainant's age, the nature of the conduct she was experiencing, and the context in which the recording was made, it was reasonably necessary for the protection of her lawful interests.

Admissibility under s 138 of the Evidence Act

Ward JA further held that even if the recording had been obtained in breach of the Act, the trial judge did not err in concluding it should be admitted under s 138. The probative value of the recording was significant: it corroborated the complainant's account and directly contradicted the appellant's blackmail defence. The balancing exercise under s 138, weighing probative value against the desirability of excluding improperly obtained evidence, favoured admission.

Jury directions

The appellant argued that the trial judge failed to give adequate directions regarding the use of the recorded conversation, including whether it could be used as tendency evidence or was limited in its relevance. Ward JA noted that no objection to the directions had been raised at trial. In any event, her Honour found no error of the kind that would have caused a miscarriage of justice.

Substantial miscarriage of justice

Even accepting for the sake of argument that the recording should have been excluded or that additional directions should have been given, Ward JA was satisfied that the appellant was proved guilty beyond reasonable doubt on each count. The evidence against the appellant was substantial and multi-sourced, including eyewitness testimony from the complainant's sister and friend, voicemail messages left by the appellant on his wife's answering machine, and the photographic material itself. The appeal was dismissed.

Orders Made

• The appeal should be dismissed.

Key Takeaways

  • Under s 7 of the Surveillance Devices Act 2007 (NSW), a party to a private conversation may covertly record it without breaching the prohibition where the recording is reasonably necessary for the protection of that person's lawful interests. The Court of Criminal Appeal confirmed this exception can apply where a child complainant records a conversation with an alleged abuser.

  • Where covertly obtained evidence is tendered at trial, s 138 of the Evidence Act 1995 requires the court to weigh the probative value of the evidence against the public interest in excluding improperly obtained material. A high probative value, particularly where the evidence corroborates a complainant and undermines a defence, can justify admission even if there is some doubt about the legality of the recording.

  • Failure to object to jury directions at trial is a relevant consideration when an appellant raises misdirection or non-direction as a ground of appeal in the Court of Criminal Appeal.

  • In assessing whether a substantial miscarriage of justice has occurred under the proviso to s 6 of the Criminal Appeal Act 1912, the appellate court considers the totality of the evidence, not merely the contested piece. Where the remaining evidence amply supports the convictions, exclusion of a single item will not necessarily result in a finding of miscarriage.

  • No single ground of error, and no combination of grounds, was sufficient to disturb the convictions in circumstances where the Crown's case rested on multiple independent and corroborating sources of evidence.

Legislation and Cases Referenced

Legislation
- Surveillance Devices Act 2007 (NSW), particularly s 7
- Evidence Act 1995 (NSW), particularly s 138
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1900 (NSW), ss 61M(1), 61O(1), 91G(1)(a), 91G(2)(a), 91H(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Listening Devices Act 1984 (NSW)
- Surveillance Devices Act 1988 (WA)

Cases
- Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
- Cooper v The Queen [2012] HCA 50
- Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297
- R v XY [2013] NSWCCA 121
- ARS v R [2011] NSWCCA 266
- Christian v R [2012] NSWCCA 34; 223 A Crim R 370
- FP v R [2012] NSWCCA 182
- R v Le [2004] NSWCCA 82; 60 NSWLR 108
- Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108
- R v ITA [2003] NSWCCA 174; 139 A Crim R 340
- Tekely v R; Nagle v R [2007] NSWCCA 75
- Toalepai v R [2009] NSWCCA 270
- Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72; 261 FLR 211