Citation: [2024] NSWDC 701
Court: District Court of New South Wales
Date: 4 October 2024
Judge(s): Mahony SC DCJ
Background
The accused (ND) was charged with three counts of sexual intercourse without consent against the complainant (JY), his wife. The alleged offences occurred between February 2021 and March 2022 during the course of their marriage.
Following the incident alleged in Count 2 (30 December 2021), the complainant recorded a 38-minute conversation with the accused on her mobile phone. In that conversation, the accused made statements that the Crown sought to rely on as admissions relevant to Counts 1 and 2. The accused was not aware he was being recorded.
The accused applied to exclude the recording on the basis that it was obtained in contravention of the Surveillance Devices Act 2007 (NSW) and should be excluded under s 138 of the Evidence Act 1995 (illegally obtained evidence). In the alternative, the accused sought exclusion under s 137 (probative value outweighed by unfair prejudice). As a preliminary step, the accused also sought to call the complainant to give evidence on the voir dire. The judgment deals primarily with the refusal of that preliminary application, with the substantive exclusion ruling to follow.
Legal Issues
- Whether the complainant should be called to give evidence on the voir dire concerning the circumstances of the covert recording
- Whether the covert recording was made in contravention of s 7(1) of the Surveillance Devices Act 2007 (NSW)
- Whether the recording fell within the s 7(3)(b)(i) exception (recording reasonably necessary for the protection of the complainant's lawful interests)
- Whether the recording should be excluded under s 138 of the Evidence Act 1995 (illegally or improperly obtained evidence)
- Whether, alternatively, the recording should be excluded under s 137 of the Evidence Act 1995 (probative value outweighed by danger of unfair prejudice)
Decision
The judgment records that the accused sought to have the complainant called on the voir dire so that defence counsel could explore the circumstances surrounding the recording, including the complainant's purpose in making it, what occurred in the 30 to 40 minutes between the alleged assault and the start of the recording, and why she did not disclose the recording for approximately three months.
Mahony SC DCJ refused the application to call the complainant on the voir dire. While the full reasons appear to be set out in the body of the judgment, the truncated text indicates the court proceeded to consider the competing arguments on the papers and statements already in evidence.
The accused's substantive arguments were detailed. Defence counsel contended that the recording was not "reasonably necessary" for the protection of the complainant's lawful interests under s 7(3)(b)(i), pointing to the complainant's failure to report the matter promptly, her continued cohabitation with the accused, and the circumstances of eventual disclosure to police. The accused argued the recording was therefore unlawfully obtained, engaging the s 138 balancing exercise.
On the s 137 alternative, the accused submitted that the probative value of the admissions was not as high as the Crown asserted because the statements were ambiguous (potentially an apology for causing physical pain rather than an admission of non-consensual intercourse) and that the recording captured the complainant in an emotionally heightened state, creating a risk of unfair prejudice. The judgment's ultimate ruling on these substantive questions is not fully captured in the truncated text, but the preliminary application to call the complainant on the voir dire was refused.
Orders Made
- The accused's application to call the complainant to give evidence on the voir dire was refused
- The substantive ruling on admissibility of the recording appears to follow in the balance of the judgment (not reproduced in the truncated text)
Key Takeaways
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The District Court considered the admissibility of a complainant's covert recording under both s 138 and s 137 of the Evidence Act 1995, with the s 138 analysis turning on whether the recording was "reasonably necessary" under the s 7(3)(b)(i) exception of the Surveillance Devices Act 2007 (NSW). Factors such as delay in reporting, continued cohabitation, and the availability of alternative protections (including police involvement or pretext calls) were relevant to assessing whether the exception applied.
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A complainant's private recording is not automatically admissible: the Court's analysis indicated that prompt disclosure to police and a clear connection between the recording and the complainant's need for protection supported admissibility, while delay and ambiguity in those circumstances weighed against it.
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Under s 7(3)(b)(i) of the Surveillance Devices Act 2007, the scope of "reasonably necessary" for the protection of a party's lawful interests remains fact-sensitive. The District Court drew a distinction between the repealed Listening Devices Act 1984 and the current Act, illustrating the kind of contextual factors a court will weigh in that assessment.
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Calling a complainant to give evidence on a voir dire is not automatic and remains a matter of judicial discretion. Mahony SC DCJ held that an application for live evidence on the voir dire required early notice and a precise articulation of what factual issues necessitated testimony beyond the statements and documentary material already available.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995, ss 56, 137, 138
- Surveillance Devices Act 2007 (NSW), ss 7(1), 7(3)(b)(i)
- Listening Devices Act 1984
Cases:
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- DW v R [2014] NSWCCA 28; 239 A Crim R 192
- Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108
- R v Le [2004] NSWCCA 82
- R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238