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Recorded conversation admissible, court rules

A bid to exclude from evidence a video recording made without a suspect’s permission has been dismissed in the District Court in Brisbane.

In his decision in R v Wolfe (a pseudonym) [2023] QDCPR 45, published last week, Judge Barlow said that during the recorded conversation, “the defendant made statements that were, or could be taken by a jury as, admissions of some of the alleged conduct”.

Judge Barlow determined that provided there was evidence of the recording’s provenance and chain of custody, the recording should not be excluded.

Wolfe is charged with one count of maintaining a sexual relationship with a child, six counts of indecent treatment of a child under 16 who is a lineal descendant, and one count of rape. The alleged offences occurred on various dates between 2011 and 2019.

During the hearing in May, the court was told Wolfe made some admissions when he was questioned by police in February 2019. Two months later, “Peter” (Wolfe’s son) took the complainant, his daughter, “Rebecca”, to a police station to record a statement. Peter was told by police that if he was to confront Wolfe, he should record the conversation.

On the drive home from the station, Peter called Wolfe, in Rebecca’s presence, and she recorded a video of the conversation on her phone. She then sent the video to Peter’s phone. Peter then uploaded the recording to evidence.com at the request of a police officer, who downloaded it and supplied it to the Director of Public Prosecutions.

Wolfe’s counsel sought to exclude the recording as evidence on several grounds, including that it was of limited probative value, and that it was unreliable, and that Peter was acting as an agent of the police at the time of the recording and had engaged in “standover tactics”.

“The conversation was not a ‘natural conversation’ but in the form of an interrogation which it would be unfair and contrary to public policy to present to the jury. It allowed the police to undermine the defendant’s right to silence, as well as to bypass the procedural protections that would normally be given to a defendant in a police interview,” they argued.

The Crown argued the recording was highly probative, the defendant’s statements were voluntary, there was no impropriety in the conduct of the call, and it would not be unfair to admit it as evidence. Judge Barlow agreed.

“I do not consider that it would be unfair to the defendant for the recording to be played to the jury. It was not created in circumstances which may affect the reliability of the defendant’s statements made in the course of the conversation. Nor was it obtained in circumstances making it unacceptable having regard to community standards,” he said.

Judge Barlow determined that:

a) if police succeed in obtaining a Cellebrite (digital intelligence platform) copy of the recording on Rebecca’s phone, provided that the Crown calls Rebecca and Peter to give evidence about the circumstances in which the recording was made and what has been done with it since it was made, and a police officer to give evidence about its download by Cellebrite, that copy of the recording not be excluded as evidence; and

b) if police do not succeed in obtaining a copy of the recording on Rebecca’s phone, provided that the Crown call Rebecca and Peter to give evidence about the circumstances in which the recording was made and what has been done with it since it was made, and a police officer to give evidence about its download from evidence.com, that copy of the recording should not be excluded.

The case continues.

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