Sexual Touching in NSW Explained

You have probably heard of offences like ‘rape’ (which is now coined as ‘sexual assault’) and ‘grooming’, but have you heard of ‘sexual touching’? Sexual touching is a relatively new offence that was inserted into the Crimes Act 1900 (NSW) at the end of 2018, and it replaced the offence of ‘indecent assault’. Given that sexual touching carries a maximum imprisonment of five years and is relatively easy to prove, you should be aware of its basic elements. This article will explain, with a real-life example, the elements that the Police will try to prove.

What constitutes sexual touching? (s 61HB)

Section 61HB of the Crimes Act 1900 (NSW) defines sexual touching as touching the alleged victim:

  1. with any part of the body or with anything else, or
  2. through anything, including anything worn by the person doing the touching or by the person being touched,

in circumstances where a reasonable person would consider the touching to be sexual. Circumstances include touching the alleged victim’s genital area, anal area or breasts and where the touching was for sexual arousal or sexual gratification.

Like most criminal offences, there are physical elements and mental elements. For this offence, the alleged offender has to know that the alleged victim was not consenting to the sexual touching. Consent means that he or she freely and voluntarily agrees to that sexual activity. Knowledge comprises of three mental states:

  1. the alleged offender has actual knowledge that the victim does not consent
  2. the alleged offender is reckless as to whether the alleged victim consents; and
  3. the alleged offender has an honest belief that alleged victim consented but has no reasonable grounds for that belief.

Case Law – R v Shanmugam

In a recent Disctrict Court case, R v Shanmugam (No.2) [2020] NSWDC 482, the physical elements and mental elements are set out clearly. The offence happened in early January 2019. After a belated work Christmas party, Shanmugam, the victim and a female workmate ended up at the victim’s home. They all slept in the same bed. Although the victim and Shanmugam had cuddled earlier in the night, there was no expectation by either of them at the time to have sexual relations. The victim woke and saw Shanmugam masturbating. He then rolled towards her and laid against her in the spooning position. He was still masturbating, with his hand against her night shorts while she was facing the wardrobe pretending to be asleep. After she brushed him off, she rolled onto her back to stop him from repeating what he had done. He then put his hands down the front of her pants and rubbed the exterior of her vagina with his hand. She brushed him away, rolled onto her side. She was in shock and reported the incident to the Police.

The conduct of laying against the victim, putting his hands down the front of her pants, and rubbing the exterior of her vagina with his hand satisfied the physical element of sexual touching. In terms of the mental element, the victim continually rolled onto her back, tried to ignore the accused, and tried to stop him. Here, a reasonable person would infer that the victim had not given consent. Shanmugam witnessed these reactions from the victim and continued to sexually touch the victim without her consent. Therefore, he was at least reckless as to whether the victim consented. Shanmugam was sentenced for 1 year and 3 months.

Conclusion

Sexual touching can be a serious offence depending on the circumstances, and the Police can generally satisfy the elements with little difficulty. Our lawyers have rich experience in this area so please contact us on 02 9283 8588 immediately if you need legal representation. We are committed to protecting your legal rights.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

What you should know about common assault as a criminal charge.

Common assault is one of the most common criminal charges in Australia. In 2019, there were 67,661 victims of assault recorded in New South Wales. It can arise out of a physical fight, a heated verbal argument or even a verbal threat from someone. Depending on the circumstances, the punishment can be severe; the length of imprisonment can reach up to two years if the matter is dealt with in the Local Court. For less serious types of common assault, punishment could be a criminal record and a fine.

The legal meaning of common assault is broad as it can be generally divided into two categories: assault by force and assault by threat of force.

Assault by force

This could arise when you use force or make unlawful contact with another person’s body without consent. You need to be aware that no injury is required by this offence. Therefore, even the merest physical touch may be sufficient.

Assault by threat of force

Threat of force means your conduct causes another to apprehend immediate infliction of force without consent. For example, if you trap the victim in your van and say to the victim, “I am going to take you to my mate’s house, he will really fix you up” – you could be charged with common assault.

Defence

There are a handful of lawful excuses available if you are charged with common assault. Generally, you are not criminally responsible for an offence if you carried out common assault in self-defence and believed the conduct was necessary to defend yourself or another person, and the conduct was reasonable.

Aggravating circumstances

You also need to be aware of aggravating circumstances, which can make the offence more serious. For example:

  1. The victim is a special person like a police officer, emergency services worker and judicial officer;
  2. Violence was involved;
  3. The offence was committed in company of other people; and
  4. The offence was committed without regard for public safety.

Section 10 Dismissal

A charge of common assault usually leads to a criminal record, which can ruin a person’s career and reputation. However, under section 10 of Crimes (Sentencing Procedure) Act 1999, the Court can find you guilty but not record a conviction under specific circumstances. To learn more about a section 10, please see our article here.

If you need legal advice for your criminal matter and would like a quotation for our services, please give us a call on 02 9283 8588.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Drug Possession in NSW

Possession of prohibited drugs is a criminal offence in NSW under the Drug Misuse and Trafficking Act 1985 (the Act). Schedule 1 of the Act provides an extensive list of prohibited drugs including cannabis (also known as weed or marijuana), cocaine, ketamine, heroin. According to the National Drug Strategy Household Survey, around 3.4 million Australians reported using a prohibited drug in 2019. This article will explain the elements of drug possession that the Police need to prove, and the penalties attached.

The elements

The Police must prove the following two elements beyond reasonable doubt:

  1. The prohibited drug was in the person’s ‘custody’ or ‘control’. Importantly, a person may be charged with drug possession even if the substance is found in their car.
  2. The person knew the substance was in their possession and knew that the substance was a prohibited drug.

Generally, a person licensed or acting in accordance with an authority to have possession of the prohibited drug is not unlawful. These licensed people may include medical practitioners, pharmacists and registered nurses. If a person obtains a prohibited drug which has been lawfully prescribed or supplied, the possession is also not unlawful.

Penalties

The penalties for possession of prohibited drugs can vary significantly. The amount of prohibited drug found in your possession is a major factor in determining the severity of the penalty. For example, a person with 1g of cocaine would usually be charged with drug possession because 1g is classified as a small quantity and would have the matter dealt in the Local Court. If the person possessed 5g of cocaine, then they would probably be charged with supply and have the matter dealt with in a higher court with more severe penalties.

In the Local Court, the maximum fine is $2,200.00 and the maximum term of imprisonment is 2 years. Other penalties that can be imposed by the Local Court include a conditional release order, an intensive corrections order, and a community corrections order. If it is a first-time offence, you can apply for a section 10 dismissal under the Crimes (Sentencing Procedure) Act 1999, which allows you to maintain a clean criminal record. Our law firm can act for you to secure the best chance of a section 10 dismissal.

Conclusion

In NSW, drug possession requires two key elements to be proved beyond reasonable doubt, and the penalties attached can be detrimental. One of the basic principles of our criminal law system is that a person is innocent until proven guilty. In other words, if you find yourself being charged by the police with drug possession, you are still innocent until you plead guilty or the Court finds you guilty. Our team of criminal law specialists have a track record of exceptional results and are available to defend you.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

NSW bail applications for serious offences

Last time, we explored a basic overview of a bail application in New South Wales. In this article, we will take a deeper dive into what the Judge considers when a bail application is heard in relation to a serious offence. We will also examine two real-life cases that were heard in the higher courts.

Firstly, the Judge will consider reasons why detaining the accused is not justified. If the Magistrate is not satisfied, then bail would be refused. If the Magistrate is satisfied with the reasons, then the Magistrate will apply the ‘unacceptable risk test’. The accused must be refused bail if there is an unacceptable risk that the accused will:

  • fail to appear at any proceedings for the offence;
  • commit a serious offence;
  • endanger the safety of victims, individuals or the community; or
  • interfere with witnesses of evidence.

McAndrew v R [2016] NSWCCA 58

Mr McAndrew was charged with a serious offence, namely armed robbery, and he failed to convince the Court of Appeal that his detention was not justified.

Mr McAndrew submitted four arguments:

  1. He needed to take care of his newborn child;
  2. He was unable to adequately grieve the loss of his grandmother whilst he was imprisoned;
  3. He intended to plead not guilty; and
  4. He needed to take care of his mother who had suffered a series of strokes.

The Court rejected all arguments from Mr McAndrew and concluded that his personal and family reasons do not easily translate into a demonstration that his continued imprisonment should not continue. Therefore, Mr McAndrew’s bail application was refused.

R v BNS [2016] NSWSC 350

BNS was charged with a serious offence that is, possession of a commercial quantity of a prohibited drug. The Court dismissed BNS’ bail application for the following reasons:

  1. The Prosecution had a very strong case.
  2. BNS has a high risk of not appearing in Court because he is a citizen of a foreign country and has no familial or community ties to Australia.
  3. BNS is likely to face a substantial term of imprisonment if convicted.

Although BNS’ mother was prepared to offer AUD$1,000,000.00 as a bond, the Court was not convinced that BNS had any sense of obligation to his mother with respect to that money. Furthermore, the Court could not assess the relative impact of the loss of that sum to BNS or his mother in the event that he does not appear.

Conclusion

Convincing the Court to grant bail is not an easy task, especially in relation to serious offences. Our lawyers have been instructed to apply for bail on many occasions and have a very clear understanding of what Judges are looking for. Recently, our team successfully obtained bail for a client who was charged with aggravated sexual assault. If you have been charged with a serious criminal offence, we can help you attain the outcome you deserve.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Section 10 Dismissal and preserving your criminal record

Crimes like murder and sexual assault stir the most attention in the media, but it is important to be aware of non-serious offences as well because they are more common. When people engage in fights or arguments, they could be charged with common assault. When people drive dangerously, they could be charged with drink-driving. If you are guilty of these non-serious offences, there is a chance that you will have a criminal record. No one wants a criminal record because it can stop you from getting the job you want; prevents you from travelling to certain countries; and damages your reputation. In this article, we will talk about how we can help you prevent a criminal record.

A Section 10 dismissal is the most popular term in NSW criminal matters for a good reason. It is a potential lifeline, when you are found guilty of a non-serious offence, because the Judge may decide not to record a conviction. In Australia, criminal offences can vary in severity: murder and sexual assault are very serious; while drink-driving, possession of illicit drugs, and common assault are usually non-serious. The Judge considers many factors before granting a Section 10 dismissal including the person’s character, prior convictions, age, health, mental condition and so on.

To prepare for a Section 10 application, you will need at least three character references and a letter of apology. Depending on your charges, you may need further supporting documents.

A good character reference is written by people who are of good reputation. This means that they have not been in trouble with the police and are respected in the community. They could be your close friends, colleagues, neighbours and members of a group which you belong e.g. sport and church.

A good letter of apology would be addressed to the victim of the offence; acknowledge the foolishness of your behaviour; express feelings of remorse; and share reasons why you will not re-offend again.

For international students and new immigrants, being aware of a Section 10 dismissal is highly important. A criminal offence is related to condition 8303 of student visas and other temporary visas. It states that “you must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community”. Therefore, if a visa holder has a conviction recorded, his/her visa will be cancelled and he/she will no longer be allowed to return to Australia. In August 2020, our team successfully applied for a Section 10 dismissal for two international students in a common assault matter.

If you need legal advice for your criminal matter and would like a quotation for our services, please give us a call on 02 9283 8588.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

How to Fight against Domestic Violence

According to a 2020 report by the Australian Institute of Criminology, more than half the women who experienced coercive control from their partners reported the escalation of emotionally abusive, harassing or controlling behaviours during the COVID-19 pandemic.

The rise in domestic violence is attributable to a combination of factors including increased time spent at home, increased social isolation, increased financial stress and job insecurity. What can you do when you experience domestic violence? In this article, we will explain the fundamental elements of domestic violence in NSW and Apprehended Domestic Violence Orders (ADVO).

What is domestic violence?

First, you may notice that the definition of domestic relationship is actually quite broad. Under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (‘the Act’), the definition encompasses marriage, de facto relationships, intimate relationships, and couples living in the same household.  Under the Act, domestic violence means an offence committed by a person against another person with whom the person who commits the offence has (or had) a domestic relationship, being:

  1. A personal violence offence; or
  2. An offence which is intended to coerce or control the person and cause intimidation or fear.

Furthermore, Intimidation includes:

  1. harassment or molestation of the person, such as cyberbullying by publication or transmission of offensive material over social media or via email;
  2. conduct causing the person to fear for his or her life by telephone, text messaging, emailing and other technological means;
  3. conduct causing apprehension of injury;
  4. damage to property.

Are you a victim of domestic violence?

In NSW, you can ring the Domestic Violence Line (1800 65 64 63) to speak with a caseworker from the NSW Department of Communities and Justice. Alternatively, you could seek an ADVO which is a court order to protect people from violence and intimidation (including harassment) by another person. We can help you apply for an ADVO in the Local Court.

When an ADVO is granted, some mandatory conditions are attached to the ADVO including:

  1. the defendant is prohibited from assaulting, threatening, stalking, harassing, or intimidating the protected person, or damaging property;
  2. the defendant must not approach the protected person; and
  3. the defendant must not come within a certain distance of the premises where they reside or work.

Have you been served with an ADVO?

If you are served with an ADVO, your rights are adversely affected. For example, you may have to move out of your home; you may lose your job after your employer runs a police check; or you may lose your right to see your children in the Family Court. If you are a visa holder, you could even lose your right to stay in Australia.

If you think you are involved in a domestic violence matter, please contact our professional lawyers to help you. Our team has rich experience in domestic violence and family law matters, and we are committed to protecting your rights and your best interests.

If you need legal advice for your criminal matter and would like a quotation for our services, please give us a call on 02 9283 8588.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Getting bail – an overview

The actor Gao Yunxiang (Gavin Gao), who is also known as “Hugh Jackman of China”, was charged with sexual assault in 2018. The famous Chinese actor was granted bail by Justice McCallum, but in return he would have to satisfy multiple bail conditions. Gao was ordered to pay $3 million surety for bail, stay at a $6000-a-month Chatswood property, obey a nightly curfew, wear an electronic monitoring bracelet, and to stay 100m away from Sydney International Airport. You may wonder how complex a bail decision is. In this article, we will explain to you the fundamental elements of a bail application.

What is bail?

The term ‘bail’ is the authority to be at liberty for an offence until the proceedings for the offence finish. In other words, the accused can be released from custody on the condition that they attend court when required and abide by other bail conditions.

Steps leading up to Court

If you have been charged and arrested, the police will quickly decide whether or not you can go home or stay in custody. Generally, the police will refuse bail if the alleged offence is a serious one. If the offence is minor, then you may have a right to release. If bail is refused by the police, you will be brought before the Court as soon as practicable for a bail application. Remember you have a right to contact a lawyer for help with bail.

Court considerations

Some of the matters that the Court will consider include:

  1. Your criminal history and community ties;
  2. The nature and seriousness of your offence;
  3. The strength of the prosecution case;
  4. Whether you have a history of violence;
  5. The length of time you are likely to spend in custody if bail is refused;

In Gao’s case, Her Honour outlined that her main concern was the risk of flight because there is no extradition treaty with China.

Examples of bail conditions

There are different types of conditions that can be imposed on bail including:

  1. Conduct requirements such as reporting to police every day, living at a specific address, surrendering your passport and obeying a curfew;
  2. Security requirements such as giving a security bond;
  3. Character acknowledgments by an acceptable person; and
  4. Enforcement conditions such as answering a police check.

If you need legal advice for your criminal matter and would like a quotation for our services, please give us a call on 02 9283 8588.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Drink driving in NSW

On 20 May 2019, the NSW Government implemented tougher penalties for drink-driving offences to reduce the number of injuries and deaths from car crashes. One reason for this change is because a person is killed or hospitalised every 41 minutes due to a car crash on NSW roads. To ensure that drivers are obeying the law, you will find the Police conducting random breath tests on the road at different times of the day. This article will briefly explain to you the current drink-driving laws and how we can help you if you are tested positive to a high PCA (Prescribed Concentration of Alcohol in a person’s breath or blood). By reading the information below, you could potentially save your driver licence, prevent a fine and protect your criminal record.

The Law

The law governing drink-driving offences can be found in section 110 of the Road Transport Act 2013 NSW. There are five separate categories for this offence which vary in severity of punishment and PCA.

Novice range PCA: A person who holds a learner licence, provisional licence or interlock driver licence must not have more than a PCA of 0 grams when he/she is driving the motor vehicle.

Special range PCA: a special category driver (see s107 of the Road Transport Act 2013 NSW) must not have a PCA of 0.02 grams or more when he/she is driving the motor vehicle

Low range PCA: A person who holds a full driver licence must not have a PCA of 0.05 grams or more, but less than 0.08 grams, when he/she is driving the motor vehicle.

Middle range PCA: A person who holds a full driver licence must not have a PCA of 0.08 grams or more, but less than 0.15 grams, when he/she is driving the motor vehicle.

High range PCA: A person who holds a full driver licence must not have a PCA of 0.15 grams or more when he/she is driving the motor vehicle.

Penalties for the above categories include a suspension of driver licence, fines, a criminal record, a requirement to install an alcohol interlock device and even imprisonment. A higher PCA generally results in more significant penalties. If you are found guilty by the Police, your driver licence will be immediately suspended. Suspension means that you need to hand your licence to the Police and make alternative arrangement to return home. In the case of a first offence, the driver licence can be suspended for 3 months and an on-the-spot fine can also be issued.

How we can help

If you have received a penalty notice or an immediate suspension for a drink driving offence from the Police, we can appeal the suspension for you in Court. Depending on your circumstances, we could rely on several defences to preserve your innocence such as ‘honest and reasonable mistake’ and arguing that the breath test was ‘unlawfully obtained’.

If it is your first drink-driving offence, we can help you persuade the Court to dismiss a conviction by means of a ‘section 10’. If we are successful, your licence would be returned to you and you will not be penalised. You can find out more information about a ‘section 10’ in our article here:

If it is your second drink driving offence within a 5-year period, we can help you reduce the severity of the punishment such as decreasing the length of your licence suspension; reducing your fine; and help you avoid imprisonment.

Therefore, drink driving laws in NSW should not be taken lightly because the penalties can be detrimental to your career and your future. Our drink driving solicitors have appealed many matters in Court with a high level of success and client satisfaction. If your driver licence has been suspended by the Police, you should obtain legal advice.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Negotiating with the Prosecution

In criminal law, negotiation is a mechanism of attempting to resolve competing interests between the Prosecution and the Defence. It is very important because the Defendant could secure the best outcome for himself/herself. In New South Wales, the Police Prosecutor deals with summary offences (e.g. drink-driving and common assault) while the Office of the Director of Public Prosecutions (DPP) deals with more serious offences (also known as indictable offences). Negotiation is not only prevalent in Australia, but also in other countries around the world including the United States of America, England and China.

What can be negotiated?

The most popular area for negotiation is that of which charges the Defendant might plead guilty to if the Defendant will admit certain allegations. Another popular area of negotiation is whether the Defendant will provide assistance to the authorities in the event that negotiation is successful. Examples of assistance include giving evidence against a co-accused at trial and assisting police in relation to different matters.

Why is negotiation important?

Firstly, it saves the Defendant and their friends and family a lot of stress in having the matter resolved earlier. The Prosecution process often takes years to finalise from the charge date to the sentencing date. Secondly, accepting a plea bargain could save the Defendant from a harsher punishment because they have a weak case at trial. For example, if the Defendant suffered significant memory loss and could not recall the alleged offence, then they would probably struggle to rebut the Prosecution’s arguments. Thirdly, an early guilty plea could lead to a sentencing discount because it shows the Judge that the Defendant is remorseful. Fourthly, it narrows down the issues to be dealt with at trial.

What the negotiation process could look like for summary offences:

Prior to the first court appearance, the Defendant writes to the Police to request a withdrawal of a charge(s). The Defendant could support their request with the following reasons:

– The Defendant has a good defence;
– The Police do not have enough evidence to prove the alleged offence; or
– The Defendant agrees to plead guilty to a less serious charge if the Police withdraws the more serious charge.

If the Police do not agree to withdraw the charge, then the Defendant will have to consider pleading guilty or not guilty at Court.

What the negotiation process could look like for indictable offences:

The DPP certifies the following charges:

No. Description Offence details Maximum imprisonment
1 Assault child with intention to have sexual intercourse with 13 years old child S66D Crimes Act 1900 16 years
2 Grooming 13 years old child for unlawful sexual activity S66EB(3) Crimes Act 1900 12 years
3 Intentionally sexually touches a child who is 13 years old S66DB(a) Crimes Act 1900 10 years

 

A week later, the Defence writes to the DPP and offers a plea of guilty to the following charge only.

No. Description Offence details Maximum imprisonment
3 Intentionally sexually touches a child who is 13 years old S66DB(a) Crimes Act 1900 10 years

 

Before deciding, the DPP will consider three factors, including:

1. Whether the evidence available can satisfy each element of the alleged offence;
2. Whether there is no reasonable prospect of conviction by a jury; and if not
3. Whether discretionary factors nevertheless determine the matter should not proceed in the public interest.

A lesser charge may be accepted if the Prosecution is satisfied it is in the public interest after considering the following matter:

– The alternative charge sufficiently reflects the criminality of the Defendant’s action and the plea provides enough scope for sentencing; and/or
– The Prosecution case is weak; and/or
– The saving of cost and time weighed against the likely outcome if it continued to trial is significant; and/or
– It will save a witness from the stress of testifying in a trial; and/or
– A victim has expressed a wish not to proceed with the charges.

If the DPP accepts the offer, then the matter would progress to sentencing before the Court. If the DPP rejects the offer, then negotiations will either continue or progress to Court for a trial date.

Guilty plea discounts for offences in NSW

The following sentencing discounts are prescribed for indictable offences based on the timing of the plea (Part 3, Division 1A, Crimes (Sentencing Procedure) Act 1999 (NSW)).

Timing of guilty plea 

 Discount

Before committal in the Local Court

25%

Up to 14 days before the first day of trial in the District or Supreme Court (for plea or notice of plea)

10%

In any other circumstances

5%

Conclusion

Overall, negotiation is an important aspect of the Prosecution process as it can lead to the best outcome for the Defence and for the community. If you have been charged with a serious offence, our experienced criminal law team at Legal Point Lawyers are able to assist.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

The Use of Listening Devices and Admissibility of Pre-recorded Evidence

Privacy is important to everyone in a civil society. NSW Parliament in 2007 enacted the Surveillance Devices Act 2007 (the ‘SDA’) to regulate the use of surveillance devices, including the installation, use and maintenance of listening devices.

Surveillance Devices Act 2007

Under section 4 of the SDA, a “listening device” means any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation. The most common listening devices nowadays are mobile phones.

The SDA prohibits the use of listening device without the consent of the person whose conversation is recorded.

Section 7(1) provides that a person must not knowingly install, use or cause to be used or maintain a listening device to:

(a) Overhear, record, monitor or listen to a private conversation to which the person is not a party, or

(b) Record a private conversation to which the person is a party.

Section 11 prohibits communication or publication of private conversations or recordings of activities.

It should be noted that section 7(3) of the SDA provides two exceptions to the prohibition.

Firstly, all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used.

Secondly, a principal party to the conversation consents to the listening device being so used and the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party or is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

Admissibility of Pre-recorded Evidence

Generally speaking, the pre-recorded evidence obtained by a surveillance device is not admissible as it contravenes the SDA. But there are three ways by which the recording evidence may be successfully admitted.

1. “Reasonably necessary for the protection of the lawful interests”

By arguing that the application of ‘reasonably necessary for the protection of the lawful interests’ under s 7(3) of the SDA, the recording evidence may be admitted as lawfully obtained evidence.

For instance, in Dong v Song [2018] ACTSC 82, the recording made by the plaintiff as to confirming the content of previous talks immediately before the commencement of a civil proceeding was held to be reasonably necessary to protect the plaintiff’s lawful interests and thus was admissible.

2. The court’s statutory discretion under evidence legislation

The party that unlawfully obtains the evidence may still be able to rely on the evidence if the court exercises its statutory discretion to admit it under the evidence legislation across all Australian jurisdictions.

For example, section 138 of the Evidence Act 1995 (NSW) allows the court to admit the unlawfully obtained evidence if the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

Family law authority indicates that for the purpose of determining important family issues, the court may exercise its discretion and admit the pre-recorded evidence even though the SDA has been contravened (see for example Gin & Hing [2019] FamCA 779 at [61] per Wilson J).

However, in the context of family law, whether or not the evidence occasioned by surveillance device will be admitted by the court with the exercise of its discretion depends on the facts of each case. Factors such as the relationship between the partners when the evidence is occasioned, the nature of the surveillance device, the occasion where the private conversation happens and the location of the surveillance device may play a role in the court’s decision (see for example Gawley & Bass [2016] FCCA at [70]-[73] per Baker J).

3. Evidence obtained by a lawful search warrant

If an unlawful recording leads to a lawful search warrant, then subsequent evidence is obtained legally and admissible unaffected by the previous illegality.

In Kadir v The Queen [2020] HCA 1, the High Court held that the evidence obtained by the execution of a lawful search warrant is admissible although the search warrant was issued following an unlawful recording which contravened the SDA.

The Counsel for one of the appellants, Ms Grech, argued that the Court of Criminal Appeal read s 138(1)(b) of the Evidence Act too narrowly. According to Ms Grech, the ‘way’ evidence is obtained is to be understood as referring to the entire chain of causation and not merely the final link in the chain. (Kadir at [39]).

The High Court rejected that argument, holding that the US jurisprudential theory of ‘fruit of the poisonous tree’ is not reflected in Australian evidence legislation (Kadir at [40]). Thus, the evidence obtained by a lawful search warrant is not the consequence of the contravention of the SDA, and is admissible.

Therefore for criminal proceedings, if the evidence is obtained by lawful procedure, the unlawful method which reveals the existence of illegal facts will not affect the admissibility of the final evidence.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.