Peter A Clarke

The charges against Ryan Cho, a junior doctor who worked at Austin Hospital, arising out his alleged use of video devices in staff toilets has grown from a charge of stalking and using an optical device earlier this month (see my post here) to five new offences. According to a Victoria Police media release, and reported by the ABC, last Friday Cho has now been charged with 5 further offences, most relevantly of 3 counts of producing intimate image and 1 count of using an optical surveillance device. The alleged offences are now  believed to have occurred in in more than one health facility. According to the ABC the Victoria Police allege that Cho had over 10,000 “pieces of images” and videos relating to at least 460 females.

The focus of the story is the alleged criminality of the conduct.  And why not. It is a big story and there is a strong interest by the public and public interest (2 very different concepts) in the issue.  The legislatures in Australia were very quick to respond to the practice of surreptitious filming, usually of women by men, in very private places, such as showers, toilets and change areas.  That response however was confined to criminalising such conduct. That is appropriate.  But there are limitations for the victims in this process.  In criminal cases it is the Crown, in indictable cases, or police Informant, in summary jurisdiction cases, which commence and conduct prosecutions.  It is the Crown/Informant which may enter a plea deal.  In some cases some form of monetary order may be made but it is not the same as an assessment of damages.  And it is prosecutors discretion to seek such orders.  

For years the State legislatures refused to legislate a civil right of action for interferences with privacy.  In Victoria what limited scope of action was confined to breaches by government entities under the Privacy and Data Protection Act.  It is an ineffective process and the results at the Victorian Civil and Administrative Tribunal Act has been very unsatisfactory.  On top of that its use is confined to Victorian Government, its agencies and entities or those providing services on their (as the case may be) behalf.  While the Victorian Government, like many government entities, have had major privacy fails and data breaches those incidents are only a small sub set of the total number of privacy interferences, misuse of private information and data breaches in Victoria (let alone the rest of Australia).  

Equity responded to the lack of statutory privacy protection and the inability of individuals to take action to protect their privacy with the Victorian Court of Appeal decision of Giller v Procopets [2008] VSCA 236.  It extended the claim of breach of confidence into a claim of misuse of private information, following the UK authorities.  It was and is not a good fit in many privacy related breaches.  The law developed at a glacial pace in this generally unsatisfactory environment.  That said, the High Court in Smethurst v Commissioner of Police [2020] HCA 14 came tantalisingly close to recognising a stand alone right to privacy as an actionable tort as the UK Court of Appeal did Vidal – Hall v Google Inc [2015] EWCA Civ 311. In Smethurst the Appellant deliberately did not want the High Court to continue consideration of a claim for breach of privacy.  Their Honours Keifel CJ, Bell and Keanne stated, at [48] (absent footnotes):

The plaintiffs’ principal claim to an injunction is based upon the Court’s auxiliary jurisdiction in equity. This would ordinarily require that it be granted in aid of some legal right or interest or title to property. The plaintiffs make no claim to the property in the AFP’s USB stick. They do not claim a right to privacy which is actionable for breach. They do not ask this Court to continue the debate, left open by Gummow and Hayne JJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, as to whether the courts should recognise such a tort. The plaintiffs nevertheless contend that an injunction should be granted to reverse or protect them from the effects of the trespass committed as a result of the Second Warrant being invalid. Those effects are that the information may be used to further the investigation as to whether offences against s 79(3) of the Crimes Act have been committed and, if charges are laid, as evidence of the commission of those offences.

(Emphasis added)

The reason for the Appellants reluctance in pressing the question of privacy and “continuing the debate” (which the High Court was most definitely interested in having) is because the media was at 2020, just as it is today, very hostile to the idea of a tort of privacy.  It wanted the relief sought and a finding against the Commissioner of Police but on a more confined basis.  That was a great opportunity wasted but fortunately the legislative has finally enacted a statutory tort of serious invasion of privacy.  As to whether the tort the High Court may have found was a superior form of protection to what has been enacted is something we will never know.  T

he Federal Government enacted a statutory tort of serious invasion of privacy which came into effect on 10 June 2025. 

With the operation of the statutory tort of serious invasion of privacy the gap in the civil law has been closed.  It is able to provide some measure of justice and compensation for victims of the behaviour as alleged in this case.  

The elements of a statutory tort of serious invasion of privacy are set out in section 7(1) of Schedule 2 of the Privacy Act 1988 and they are:

(1)       An individual (the plaintiff ) has a cause of action in tort against another person (the defendant ) if:

(a)     the defendant invaded the plaintiff’s privacy by doing one or both of the following:

(i)      intruding upon the plaintiff’s seclusion;

(ii)     misusing information that relates to the plaintiff; and

(b)     a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances; and

(c)     the invasion of privacy was intentional or reckless; and

(d)     the invasion of privacy was serious; and

(e)     the public interest in the plaintiff’s privacy outweighed any countervailing public interest.

It is not difficult to see that all elements would be met in cases involving the planting of video equipment in toilets.  There are many other private spaces where the cause of action could apply.  There are defences to a proceeding brought under this cause of action.  Whether there is a viable defence is another question altogether.  

The Victoria Police media release provides:

Detectives from Mernda Sexual Offence and Child Abuse Investigation Team have laid further charges against a man as part of an ongoing investigation into an incident at the Austin Hospital in Heidelberg.

Police arrested the 27-year-old man at a property in Croydon on Friday 25 July 2025.

The Croydon man has been interviewed by detectives and charged with five further offences, including three counts of producing intimate image, one count use optical surveillance device and one count failing to comply with direction to assist.

The man has been remanded to face the Melbourne Magistrates’ Court this afternoon.

The charges are in addition to charges previously laid against the man on 10 July following the initial incident at the hospital on 3 July.

A recording device was allegedly located in a restricted staff toilet of the facility.

The device, a mobile phone, is alleged to have been in place for some time before staff became aware and reported the matter to police.

The man was initially charged with stalking and use optical surveillance device.

As part of the investigation, several additional hospitals where the man worked between 2020 and 2025 have been identified as workplaces of interest. These hospitals are located in Melbourne’s CBD and regional Victoria.

Police have begun the process of contacting the additional hospitals and those potentially impacted during the time of the man’s employment. This process is due to take some time.

As the investigation remains ongoing, further updates will be provided when appropriate.

The ABC coverage about new charges states:

The ABC coverage regarding the 10,000 images and 460 people affected provides: