Every now again we are retained to defend against allegations which have us wondering, “where on earth is the public interest in this prosecution?”. Our client and his wife enjoyed a robust and what less adventurous folk may regard as an unconventional sexual lifestyle, notwithstanding the disconnect in their 20-plus year relationship. This included making visual recordings of sexual acts performed within the confines of the marital bedroom. One day our client’s wife went through his mobile phone and saw recordings had been made when she appeared to be asleep. Within days, she had arranged a secret audio recording of a conversation the pair were having in bed, in which various topics including her affairs were discussed. In the course of the almost 3 hour recording, she told our client of the recordings she had located on his phone, claiming he did not have permission to make the recording. The accusations were framed in a manner that sought to entrap him into confessing a criminal act, however, his responses fell far short of what she had set out to achieve.
In due course, and based on the video recordings stored on his phone, our client was arrested and charged with having sexually penetrated his wife without consent. The defence position was that the recordings were made with consent, or at least an honest and reasonable belief in consent based on their prior and similar pattern of sexual activity. In the weeks leading up to a 3 day District Court trial, legal argument was necessary to exclude irrelevant and prejudicial evidence alleged against our client by his wife and which the prosecution wished to present to the jury, including, ironically, the illegal 3 hour recording made by the wife. We succeeded in our application, the product of persuasive written submissions complimented by robust advocacy.
Seizing upon an opportunity to resolve the matter and avoid the stress and expense of a trial for our client, we obtained instructions to offer the prosecution with a plea to charges under the Surveillance Devices Act. The proposal was accepted and our client was punished by way of a fines. And… granted our application for spent convictions.