The Court of Appeal recently considered a case that contained seemingly conflicting privacy elements. A man convicted on 20 counts of making intimate visual recordings was unsuccessful in appealing his convictions on the basis that there had been an intrusion into his privacy and the search warrant Police used was invalid.

The appellant, Kurt Graham, was convicted of secretly filming sex with his then partner between December 2006 and March 2010. He had done this without her consent or knowledge but he claimed the person who discovered the offending had breached his privacy by looking at his phone.

Intimate visual recording

The story began when Graham’s then-girlfriend, whom we shall call the informant, inadvertently found text messages on his phone which indicated he had had or was having a sexual relationship with someone else.

The informant also saw a photograph on his phone of a previous girlfriend in the middle of a sexual act. The photo was taken from a video recording. The informant later discovered similar photos and went on to find other sexually explicit photos and recordings of Graham with other women. The informant then contacted Graham’s previous girlfriend (who became the complainant in this case) and shared some of the images with her. Together, the two women decided to report him to the Police.

On the basis of the evidence provided by the two women, Graham was convicted of making an intimate visual recording, an offence under section 216H of the Crimes Act. He was sentenced to nine months home detention, 250 hours community work, and was ordered to pay $5,000 to the complainant.

Basis for the appeal

The lawyer for Graham relied on C v Holland where the court recognised the tort of “intrusion into seclusion (of a person’s intimate personal activity, space, or affairs) involving infringement of a reasonable expectation of privacy that is highly offensive to a reasonable person”.

Using this argument, Graham’s lawyer sought to establish that a civil wrong had been committed against his client by the informant. He argued the evidence used against Graham was inadmissible and the search warrant unlawful because of the breach of Graham’s privacy.

Trespass of goods

The other argument, trespass of goods, alleged that the informant had trespassed against Graham and intruded on his privacy by looking through his belongings.

The Court of Appeal decided otherwise. It backed the findings of the District Court judge who had reasoned Graham’s actual conduct was inconsistent with his stated expectations of privacy.

The Court of Appeal said it did not think the informant’s behaviour infringed on Graham’s expectation of privacy, given the nature of their relationship. It also noted the informant’s actions could not be described as being highly offensive to a reasonable person.

With respect to the trespass of goods argument, the Court of Appeal said the case had not been made. Graham needed to advance the claim that the informant’s access to his phone and video camera had interfered with his ownership of those goods, and the Court was not satisfied that this had been done.

On both arguments, the Court of Appeal said the way the photographic evidence was obtained by the informant did not taint the search warrant.

The Court of Appeal also said the search warrant could correctly include the car in which ten computer discs were found because the car was on the property of the address on the warrant. It concluded that both grounds for Graham’s appeal were unsuccessful.

Image credit: Sex by Jean Koulev

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