APPELLANT CONVICTED OF ASSAULT RAISES THE INADMISSIBILITY OF PHONE RECORDING PRESENTED BY THE COMPLAINANT

NS v Hotchkis [2021] ACTCA 13 (2 June 2021)

This is an appeal on a conviction of assault and contravention of a family violence order on the ground that the evidence relied upon is inadmissible.  The appellant submits that the primary judge erred in finding no error by the magistrate in admitting an audio recording made by the complainant.

Facts:

On 10 October 2018 the appellant, NS, was convicted and sentenced by the Magistrates Court for assaulting the complainant and contravening a family violence order on the same day.

The assault arose from the appellant kicking the complainant’s leg during an argument about a dog.  At that time the appellant and the complainant were married and living together. The complainant had obtained a family violence order against the appellant and the breach of the Family Violence Act arose from him engaging in offensive or harassing behavior towards the complainant or by harassing, threatening or intimidating her.

The appellant appealed to the Supreme Court from his conviction but not from the sentence imposed.  The grounds of appeal were that the magistrate erred in admitting an audio recording made by the complainant pursuant to S.5(2)(d)-(e) of the Listening Devices Act 1992 (LDA).

The recording was an audio recording made by the complainant on her mobile phone of the incident giving rise to the charges.  It was admitted into evidence by the magistrate.

Issue: Did the primary judge erred in finding no error by the magistrate in admitting an audio recording made by the complainant?

Law:

• Section 4 of the LDA prohibits the use of a listening device with the intention of listening to or recording a private conversation to which a person is not a party or recording a private conversation to which the person is a party.
• There are exemptions to the general prohibition set out, including that in S 4(3)(b)(i): [a] principal party to the conversation consents to the listening device being so used, and ... the recording of the conversation is considered by that principal party, on reasonable grounds, to be necessary for the protection of that principal party’s lawful interests.
• Section 5 of the Act contains a prohibition on divulging or communicating a record of a conversation that the person knows was made directly or indirectly using a listening device.  Once again, there are exceptions set out in the section which include where the “communication or publication” (s 5(2)): (b) is considered by the party making it, on reasonable grounds, to be necessary for the protection of that party’s lawful interests; or (e) is made to a person who is believed by the party on reasonable grounds to have such an interest in the conversation as to make the communication or publication reasonable in the circumstances;

Analysis:

Given that the complainant had heard the conversation herself because she was present at the time it occurred, she had obtained knowledge of the conversation other than through the use of the listening device and she was permitted to give evidence of the private conversation.  S.10(1) would not prevent the informant from giving evidence of the conversation because the informant “would undoubtedly have been told of the conversation by the complainant”.  For those reasons, his Honour concluded that even if the use of the listening device was proscribed by S.4, the recording was not rendered inadmissible by  S.10.

The submissions of the appellant do not demonstrate any error on the primary judge’s part in reaching his conclusion that neither S.4 nor S.5 were breached because the complainant believed, on reasonable grounds, that the recording was necessary for the protection of her lawful interests.

Conclusion: The appeal is dismissed.

#appeal