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The defence conceded the call did not breach the Commonwealth Telecommunications (Interception) Act 1979 for the technical reasons articulated in authorities (see [8]) and disputed admissibility under the Surveillance Devices Act 2000 (NT) and in the court's discretion. The judge (Mildren J) was asked to decide (1) whether the recording infringed the Surveillance Devices Act s 5 and (2) whether, even if lawful, the recording should be excluded in discretion because of unfairness (see [7], [9]-[11], [30]).

Key rulings were: (a) s 6(b)(i)-(iii) of the NT Act are alternative grounds of authorisation and s 6(b)(ii) applied because Ms R was a party who used the listening device; (b) the call met the statutory definition of a 'private conversation' (s 3) on an objective assessment of circumstances known to the participants; (c) Ms R was an agent of the police for admissibility purposes; (d) the recorded call was not an interrogation and thus its admission was not unfair on the whole; but (e) a discrete portion of the transcript (from top of page 5 to the end) was more prejudicial than probative and was excluded (see [20]-[23], [27]-[31], [35]-[38]).

Why the court decided this way

There are two linked strands to the decision: statutory interpretation of the Surveillance Devices Act 2000 (NT) and exercise of judicial discretion over admissibility of pre-text conversations.

Statutory interpretation (s 6(b) and 'private conversation')

• The judge considered whether s 6(b)(i), (ii) and (iii) were alternatives or cumulative requirements. After examining the statutory context and practical purposes of the provisions, he concluded they are alternatives: each covers distinct situations (third-party installation, party recording, or public place law enforcement use), so compliance with any one suffices for lawfulness (see [20]-[22]).
• On 'private conversation', the judge preferred an objective test: the question is whether the circumstances known to participants at the time reasonably indicate the parties desired the conversation to be confined to themselves. He followed Cummins J in R v Storey that the test focuses on circumstances 'then and there', not on secret intentions to record (see [23], [24]-[28]). Applying this, the judge found the call was a private conversation for s 3 purposes (see [29]).

Admissibility discretion (pre-text calls)

• Authorities establish factors relevant to excluding pre-text conversations: whether the recording circumvents an accused's decision to remain silent, whether the recorder was an agent of police, whether the exchange amounts to interrogation (elicitation), reliability (including impairment), and whether the recording would be unfair (see [30]).
• The judge found Ms R was an agent of the police (drawing on R v M and R v Broyles) because the call would not have occurred but for police initiation and the police supplied the equipment (see [31]-[33]). Nevertheless, not every agent-conducted recording requires exclusion. On the facts, the call contained some leading questions but was not an interrogation; the accused was surprised at work but had capacity to terminate the call; no clear unreliability appeared on the face of the recording; and the accused would have opportunity to explain in formal record of interview (see [35]-[37]). The result: most of the call admissible, but a specific part that risked unfair prejudice (allegations of 'other times') was excluded (see [38]).

Before and after state of the law

Before this decision, Australian authorities already recognised issues with pre-text calls and police-supplied recording devices. High Court authority in The Queen v Swaffield; Pavic v The Queen established general principles for excluding improperly obtained admissions and warned against covert elicitation (see [30]). State appellate decisions (R v M; R v Burt; Regina v Suckling; R v Dat Tuan Nguyen) showed variations in treatment of whether complainants are agents and whether recordings amounted to interrogations (see [30]-[31]).

This decision:

• Confirms that, under the NT Surveillance Devices Act, s 6(b) subparagraphs are alternatives, permitting reliance on s 6(b)(ii) where the user is a party (a useful interpretive clarification at [20]-[22]).
• Reaffirms the objective test for 'private conversation' as circumstances known to participants, following R v Storey (see [27]-[29]).
• Confirms that a complainant who records a conversation with police facilitation may be treated as a police agent (see [31]) but that agent status is not determinative of exclusion; the court must assess whether the exchange was an interrogation, whether the accused's rights were circumvented, and whether reliability or fairness demands exclusion (see [30], [34]-[38]).

So the after-state is consistent with a careful, contextual approach: party-recorded pre-text calls can be lawful and admissible when the statutory tests are met, but courts retain flexibility to exclude particulars that are unfairly prejudicial.

Key passages with plain-English translation

• Paragraph [20]: "I consider that each of the provisions of s 6(b)(i), (ii) and (iii) are alternatives..."
  • Plain English: The judge reads the three conditions in s 6(b) as separate options. You only need one to make using a listening device lawful.
• Paragraph [23]: "As to the definition of 'private conversation', I think that the preferable meaning is that each of the parties... desire it to be listened too only by themselves."
  • Plain English: A conversation is 'private' only if the people talking want it kept between them; that desire is judged by what the participants would reasonably think from the situation.
• Paragraph [27]: Cummins J's test quoted in R v Storey about assessing 'circumstances known to the participants'.
  • Plain English: Whether a chat is private depends on the setting and what people present would expect, not on secret plans to record it later.
• Paragraph [31]: "I think in those circumstances, Ms R should be regarded as an agent for the police."
  • Plain English: Because police set this up and provided the equipment, Ms R was acting for police when she made the call.
• Paragraph [38]: "I accept... that that part of the conversation is prejudicial... should be excluded."
  • Plain English: A specific bit of the tape risked unfairly hurting the accused more than it would help prove the case, so the judge removed that segment from evidence.

What fact patterns trigger this precedent

This ruling guides cases with the following features:

• A party to a potential offence makes a recorded telephone call to the accused using police-facilitated equipment.
• The police supply special (non-contact) recording apparatus and instruct the caller on its use in an interview room.
• A challenge is raised under the Surveillance Devices Act regarding whether the recording was authorised and whether the conversation was 'private'.
• The defence contends the complainant was an agent of police and that the recorded exchange amounted to elicitation/interrogation requiring exclusion.

In such fact patterns, this decision provides the following roadmap:

• Read s 6(b) disjunctively, if the user is a party and the conversation is private as objectively assessed, the recording is authorised (s 6(b)(ii)) (see [20]-[23], [29]).
• Treat agent status as a factor for exclusion but not necessarily dispositive; interrogative nature and unfairness are key considerations (see [30]-[37]).
• Be prepared to excise particularly prejudicial passages even when the broader recording is admissible (see [38]).

How later courts have treated it

This decision engages established authorities (R v Storey; R v Broyles; Swaffield; R v M; R v Burt). Mildren J expressly followed R v Storey and Broyles, applied Swaffield principles on pretext/elicitation, and aligned with the reasoning in R v M that a complainant could be a police agent (see [24]-[33]). The judgment positions itself within the line of authorities that requires careful contextual judicial assessment rather than categorical rules. Subsequent courts in the Northern Territory and elsewhere would treat this decision as confirming that s 6(b) subparagraphs are alternatives and endorsing the objective test for 'private conversation', while still requiring case-by-case application when exercising exclusionary discretion. Practitioners should cite the decision when arguing both statutory authorisation under s 6(b)(ii) and appropriate exercise of the court's discretion to exclude prejudicial material.

Still-open questions

• The judgment treats s 6(b) as disjunctive; while persuasive, statutory appeals could argue for a different grammatical or purposive reading in different contexts. The precise limits of that disjunctive reading for complex fact patterns (for example hybrid installations involving both party-recording and third-party involvement) may require future clarification (see [20]-[22]).
• The judge accepted Ms R was an agent of the police. What precise threshold of police involvement transforms a private participant into a 'police agent' remains factual and sometimes contested; subsequent cases might further delineate the necessary degree of police instigation, control or orchestration that creates agent status (see [31]).
• Agent status was treated as a relevant but non-determinative factor. There is continuing tension about when agent-facilitated recordings cross the line from legitimate evidence gathering to covert elicitation amounting to unfairness. Future authority may refine the balance between investigative flexibility and safeguarding accused's rights, particularly in vulnerable complainant scenarios (see [30], [34]-[37]).
• Finally, the decision excludes a portion of the tape as prejudicial. The approach to excising parts of recordings raises practical questions about transcript/page numbering reliance, contextual integrity of the remaining recording, and whether severance could affect the jury's assessment of reliability. Further guidance on principled severance (how to excise without distorting context) would be helpful (see [38]).

[6] Ms R was then left alone and made a telephone call to the accused which was recorded. At the end of the call, the tape was handed over by Ms R to the police as they indeed expected her to do.

[7] The prosecution contends that the tape recording contains a number of damaging admissions by the accused; that it is admissible in evidence at the accused's trial; that the recording made of the telephone call was not unlawful; and that there are no grounds upon which it would be appropriate for me to exclude the telephone call in the exercise of my discretion.

[8] Mr Dalyrmple, for the accused, conceded that the recording was not made in breach of s 7 of the Telecommunications (Interception) Act 1979 (Cth) for two reasons: first that the recording took place after the communications had already passed over the telecommunication system; secondly, there is no interception if one party to the telephone conversation makes a recording of the conversation; it is only when a third party makes a recording of the telephone conversation without the consent or knowledge of the participants to the conversation that there is a breach of the Act. Reference was made by counsel to the following authorities in support of these contentions: R v Edelsten (1990) 21 NSWLR 542; T v The Medical Board of South Australia (1992) 58 SASR 382; G_reen v The Queen_ (1996) 124 FLR 423. The Crown does not challenge the correctness of any of these decisions. Both parties have approached this matter on the basis that the relevant legislation is therefore the Surveillance Devices Act 2000 (NT).

[23] As to the definition of "private conversation", I think that the preferable meaning is that each of the parties to the conversation desire it to be listened too only by themselves. Therefore, a conversation carried on in circumstances that may reasonably be taken to indicate that one of the parties to conversation does not desire it to be listened to only by themselves, the conversation is not a private conversation. The question then is whether the circumstances in this case are such as to indicate that Ms R did not desire the conversation to be only listened to by her and the accused.

[24] In R v Storey (Supreme Court of Victoria, Cummins J, unreported 9 December 1994, BC 9406093) a registered informant used a tape recorder to record conversations in the kitchen of her home between the informant and inter alia the accused Storey who was facing charges of two counts of conspiracy to murder. It was the intention of the informant that the tapes would be listened to by police who provided the tapes as well as the tape recorder, and to whom the registered informant on a regular basis provided recorded conversations.

[25] Section 41(a) of the Listening Devices Act (1969) (Vic), provided that a person shall not use any listening device to overhear, record, monitor or listen to any private conversation to which he is not a party.

[26] The definition of "private conversation" in the Victorian act, was in para materia with the definition of "private conversation" in the Surveillance Devices Act (2000). It was submitted on behalf of counsel for Mr Storey that the conversations were not private conversations and therefore the argument was that the publication of the private conversation was illegal by virtue of s 41(b).

[27] Cummins J said:

[31] The first question is whether Ms R was an agent of the police. In a very similar case, R v M, supra, the Court of Appeal of Queensland held that the complainant, who telephoned the accused from a police station was indeed an agent of the police. A different view was taken by the Court of Appeal of Queensland in the case of R v Burt, supra, at least by Thomas JA at p 34. The only difference between the situation in R v Burt and R v M, is that in Burt's case it was alleged that the accused had already made limited oral admissions to the complainant over the telephone, otherwise in both cases the complainant was enabled by the police to record a pre-text telephone conversation in the same manner, or in substantially the same manner, as has been done in this case. Commonly the purpose of the telephone call and the recording of it was to gather evidence against the accused. I think in those circumstances, Ms R should be regarded as an agent for the police.

[32] A similar conclusion was reached by the Supreme Court of Canada in R v Broyles [1991] 3 SCR 595 when a friend of the accused visited the accused whilst in prison at the request of the police and wore a recording device provided for by the police.

[33] R v Broyles was cited by the majority in R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 at 201 with apparent approval.

[34] In Broyles case the ensuing conversation was rejected because the statements made by the accused had been elicited in circumstances where without the intervention of the authorities there would have been no conversation at all and parts of the conversation were in the nature of an interrogation and not merely parts of a conversation which flowed naturally.

[35] So far as the conversation between the accused and Ms R is concerned, although there are a few leading questions, it could hardly be described as an interrogation or elicitation. The complainant in this case is only 15 years of age. The accused is an older and more mature person and there were a number of occasions when the accused could have terminated the conversation had he wished to do so. Indeed, on one occasion towards the end of the conversation Ms R attempted to terminate the conversation but the accused had more to say.

[36] Counsel for the Crown conceded that there were some difficulties with the reliability of the admissions made during the conversation. At the time of the conversation the accused was at work. He was employed pouring concrete. There were a number of fellow workers around and he was obviously taken by surprise by the call which he received on his mobile telephone. During the record of interview he said that he was in a hurry and would have said anything to Ms R because he had concrete "going off around me and I just could not stop".

[37] The Crown does not deny that the call was made at a time when the accused was in fact in the middle of a concrete pour and there were other workers around him. Nevertheless, I am not persuaded that it would be unfair to the accused to admit the conversation in those circumstances. There is nothing on the face of the conversation which suggests that it is unreliable. No doubt the conversation occurred at a time when the accused was likely to be embarrassed, but the accused had the opportunity to terminate the conversation. It seems that it was unlikely that any of his fellow workers could have overheard the conversation given that there was the noise of a helicopter in the background. The accused has had the opportunity to give his explanation to the police of the phone call in the formal record of interview which the prosecution intends to tender. I am unable to see any unfairness to the accused in the circumstances of this case.

[38] Objection was made to a part of the telephone call when Ms R asked a question about "the other times". It might be thought that what then followed amounted to an admission that there were other times similar to the occasion which is the subject of count 1 on the indictment. There is only one charge of that nature. No clear admission is made in relation to there being any other times, or as to what they were. I accept the submission of counsel for the accused that that part of the conversation is prejudicial and that the prejudicial nature of it outweighs its probative value. Accordingly, the material starting from the top of page 5 of the transcript of the pretext phone call until the end should be excluded.

[39] So far as the record of interview is concerned, there are questions in the record of interview, which relate to the pre-text conversation. However the material which much be excised is not referred to in the record of interview.

[40] No other objection was taken to the record of interview at this stage, although counsel for the accused indicated that he was still considering his position in relation to that. Subject to any further application which may be made by Mr Dalyrmple, I see no reason at the moment to exclude any part of the record of interview.