Davies v The Queen - [2021] SASCA 26

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
DAVIES v THE QUEEN
[2021] SASCA 26
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Livesey and the Honourable Justice Bleby)
4 May 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - LISTENING DEVICES AND SURVEILLANCE DEVICES
Appeal against conviction.
The appellant was charged with sexually abusing his two stepdaughters when they were children. Count 1 alleged that the appellant maintained an unlawful sexual relationship with the complainant. Count 2 alleged that the appellant indecently assaulted the second complainant, TH.
The offending against both complainants was alleged to have occurred at night time, when the complainants were alone with the appellant in the lounge room and either watching television or engaging with a gaming console.
After a trial by jury, the appellant was convicted of count 1 and acquitted of count 2. At the trial, a pretext telephone conversation between the complainant and the appellant was played to the jury. On the prosecution case, the appellant acknowledged his sexual offending against the complainant and expressed remorse for the offending during this call.
The appellant appeals against his conviction on the basis that the trial Judge erred in admitting the pretext call into evidence and erred in his directions to the jury concerning the call. It was also contended that the Judge erred in finding that the evidence of the two complainants was cross-admissible for a similarity of account purpose and by failing to direct the jury as to whether the evidence was cross-admissible for a propensity purpose. Finally, it was argued that the Judge gave insufficient directions concerning the burden of proof.
Held per the Court, dismissing the appeal:
1. The trial Judge was correct to conclude that the recording of the conversation was reasonably necessary for the protection of the complainant’s lawful interests. Those lawful interests included the right to vindication through the criminal justice system.
2. Given the nature of the relationship between the appellant and the complainant, and the nature of the conversation that actually transpired, it was not unfair or improper in the circumstances to admit the pretext conversation into evidence.
3. The trial Judge’s directions as to the pretext telephone conversation were accurate and correct. The Judge made it plain in his directions what the prosecution and defence case was in relation to the characterisation of the conversation and concluded his directions by telling the jury that it was a matter for them as to how they interpreted what the appellant was saying in the conversation.
3. The common features in the evidence of the two complainants excluded the possibility of independent fabrication and therefore outweighed any prejudicial effect that the evidence had on the appellant.
4. The evidence of the complainants was cross-admissible for a similarity of account purpose. The Judge made it sufficiently clear to the jury what the permissible use of the evidence was, as distinct from the impermissible use.
5. There is no reason to suggest that the jury would not have understood that the prosecution bore the burden of proving each element of each offence beyond reasonable doubt.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Surveillance Devices Act 2016 (SA) s 4; Summary Offences Act 1953 (SA) s 79A(3), referred to.
Groom v Police (2015) 252 A Crim R 332; Thomas v Nash (2010) 107 SASR 309; Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd (2018) 132 SASR 63; Pavitt v The Queen (2007) 169 A Crim R 452, applied.
R v DRF (2015) 263 A Crim R 573; The Queen v Swaffield; Pavic v The Queen (1998) 192 CLR 159; R v Herbert [1990] 2 SCR 151; R v Broyles [1991] 3 SCR 595; R v Burton [2013] NSWCCA 335; R v C, CA [2013] SASCFC 137, considered.

DAVIES v THE QUEEN
[2021] SASCA 26

Court of Appeal – Criminal: Kelly P, Livesey and Bleby JJA
THE COURT:

Introduction

On 29 October 2020, the appellant, Trevor John Davies, was convicted by a jury of one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The offence was committed against the appellant’s stepdaughter, SC, who was the first complainant (‘the complainant’).
The appellant appeals to this Court against his conviction on four grounds:
1.The trial Judge erred in admitting the covert recording of a conversation between the appellant and the complainant (the ‘pretext conversation’) into evidence;
2.The trial Judge erred in his directions to the jury concerning the ‘pretext conversation’;
3.The trial Judge erred in finding that the evidence of the two complainants was cross admissible for ‘coincidence reasoning’ and by failing to find and direct the jury as to whether the evidence was cross admissible for a propensity or tendency purpose; and
4.The trial Judge gave insufficient directions concerning the burden of proof and the appellant’s evidence.
On 24 December 2020, a Judge of this Court granted permission to appeal on ground 1, and referred the application for permission to appeal on grounds 2, 3 and 4 to the Court of Appeal. An extension of time was also granted to file the Notice of Appeal.
Background
The appellant was charged with sexually abusing his two stepdaughters, the complainant and the second complainant, TH. Count 1 related to the accounts given by the complainant, while count 2 related to the accounts given by TH. The appellant was convicted only of count 1, with the jury unanimously finding the appellant not guilty of count 2.
Count 1, the offence of maintaining an unlawful sexual relationship with a child, was particularised in the following way.
It was alleged that the appellant on more than one occasion:
1.caused the complainant to perform fellatio on him;
2.caused the complainant to touch or suck his testicles;
3.caused the complainant to masturbate his penis.
4.ejaculated onto the complainant;
5.inserted his fingers into the complainant’s vagina;
6.touched and rubbed the complainant’s vagina with his hand and penis;
7.attempted to insert his penis into the complainant’s vagina;
8.masturbated in the presence of the complainant; and
9.caused or incited the complainant to touch her breasts and nipples in his presence.
At the time of the offending, the complainant and TH were children. They were living under the same roof as the appellant with their mother and later, their younger brother. Their mother commenced a relationship with the appellant in December 1995 and their relationship ended in 2010.
In relation to count 1, the prosecution case was that the appellant maintained an unlawful sexual relationship with the complainant between 1 January 1997 and 31 December 2008. The offending ceased when the complainant moved out of the family home and into a caravan at the age of 16.
In relation to count 2, it was alleged that between August 2006 and August 2008, the appellant indecently assaulted TH by touching her breast.
The evidence at trial
At trial, the complainant gave evidence of the sexual acts that were committed against her. The sexual acts included unlawful sexual intercourse, acts of gross indecency and indecent assaults.
There is some inconsistency as to when the sexual offending began. In her first interview with police, on 23 October 2018, the complainant stated that it began when the television show ‘Big Brother’ started in 2000 or 2001, when she was around eight or nine years of age. This was consistent with the evidence she gave at trial. However, in her second interview, on 21 August 2019, she stated that it began when she was aged between five and seven.
The complainant stated that the offending by the appellant occurred frequently and that it usually occurred in the lounge room at night time. The appellant would allow the complainant to stay up at night watching television and gave her cigarettes in exchange for the sexual acts he was committing. The complainant would sell some of those cigarettes at school.
The complainant’s mother gave evidence that she would go to sleep early if there had been arguments during the night. She regularly saw the complainant up late at night watching inappropriate television with the appellant.
On one occasion, TH went past the lounge room at night and saw the complainant jump over the arm of the settee. The appellant was pulling his pants up. She said she was too young to know what was going on but that she did notice it.
DM, who was a close friend of the complainant during primary school, told the Court that the complainant smoked cigarettes throughout primary school and that they were given to her by her stepfather. The complainant would bring the cigarettes to school in a tin and sold them for 50 cents. DM also gave evidence that the complainant was crude about sexual matters and stated that she never understood how the complainant knew about sex because she did not have a boyfriend until she had almost completed high school.
Both the complainant and her mother recalled that at one stage, the complainant was urinating behind the door in her bedroom at night. When this was discovered, the complainant told her mother that she was sleepwalking. The complainant stated that she began urinating behind the door so that she did not have to go past the lounge room to go to the toilet.
The prosecution case was that the complainant did not report the offending earlier because she was frightened of her mother and the appellant. She gave evidence that the appellant was violent towards her mother and that he got angry frequently. The appellant and the complainant’s mother both gave evidence acknowledging drug use and aggression in the household.
In 2018, some 10 years after the offending ceased, the complainant told her mother that the appellant had touched her sexually. On 22 October 2018, the complainant attended a country police station and reported the matter to police.
The appellant’s evidence
The appellant gave evidence at trial. He denied sexual offending against either of the complainants. He stated that the complainant would come into the lounge room at night but that he would only let her watch movies or television that she wanted to watch. He denied giving her cigarettes in exchange for sexual compliance. Furthermore, he stated that the complainant’s mother was the more violent one in the relationship and that she had seriously injured him on approximately three occasions. Despite this, he did admit that he was apt to get angry and jealous during the relationship.
The appellant suggested that the two complainants had conspired with their mother to make false allegations against him. The alleged motive behind this was to prevent him from having access to his son.
The pretext conversation
On 17 October 2019, shortly before the appellant’s arrest, the complainant engaged the appellant in a pretext telephone call. The call lasted about 30 minutes and occurred while the complainant was at a country police station. An audio recording of the call was played to the jury and they were provided with the transcript. The admissibility of, and directions concerning, this call are the subject of grounds 1 and 2 of this appeal.
Whilst the appellant did not explicitly admit to the offending during the call, the prosecution case was that, in effect, he acknowledged his sexual offending against the complainant and expressed remorse for the offending.
The appellant denied that he was referring to sexual offending during the conversation. In his evidence, he stated that he was merely acknowledging the anger, jealousy and drug taking that he exposed the complainant to, which made her upbringing difficult.
Grounds 1 and 2 – The pretext conversation
The first and second grounds of appeal concern the admissibility of the pretext conversation between the appellant and the complainant, and the directions concerning that conversation given by the Judge to the jury.
In an application for directions, the appellant sought exclusion of the telephone conversation on two bases. First, it was argued that the conversation was recorded in breach of the Surveillance Devices Act 2016 (SA) (‘Surveillance Devices Act’). Second, it was contended that the recording was in breach of an internal policy of the Police Special Crimes Investigation Branch concerning pretext conversations.
On 9 October 2020, the Judge ruled that the evidence was admissible. The appellant now contends the Judge was wrong to conclude that the pretext call was not in breach of the Surveillance Devices Act and it should therefore have been excluded in the exercise of either the public policy discretion or the unfairness discretion.
Furthermore, irrespective of whether the conversation was in breach of the Surveillance Devices Act, the appellant contends that it should have nevertheless been excluded by the exercise of the unfairness discretion on the ground that the complainant had, in effect, acted as an agent of the police in circumstances where had the police made the call, they would have been obliged to caution the appellant that he had the right to remain silent.
Before discussing this ground of appeal, it is necessary to set out the relevant chain of events which led to the making of the pretext call.
On 22 October 2018, the complainant first went to a country police station to make a report about sexual abuse perpetrated upon her by the appellant. The following day, she returned to the police station and provided the content for what became her first affidavit, sworn on 8 November 2018. In her affidavit, the complainant alleged being the victim of indecent assaults, acts of gross indecency and acts of unlawful sexual intercourse, which only ceased when she left home in 2008 at the age of 16.
On 12 July 2019, Brevet Sergeant Lisa McGregor had a conversation with the complainant and explained to her the procedure for conducting a pretext call. Brevet Sergeant McGregor had a further conversation with the complainant on 16 August 2019, in which the complainant agreed to attempt a pretext telephone conversation with the appellant. The police officer then obtained authorisation to conduct the pretext call from the officer in charge of the Special Crimes Investigation Section.
On 6 September 2019, the complainant, again, went to the police station and completed what became her second affidavit. In that document, the complainant’s allegations were comprehensive as to the further allegations of sexual abuse made against the appellant.
At around 10.00 am on 17 October 2019, the complainant attended the police station, another detective, Brevet Sergeant Owen Wales read out a document entitled ‘Investigator Pretext Preamble’ to the complainant.
That document is reproduced in full below:
Investigator Pretext Preamble
INSTRUCT WITNESS ON HOW TO OPERATE THE RECORDING EQUIPMENT
I am, [DBS Owen Wales]   a Police Officer, ID […]
of; [Limestone Coast Criminal Investigation Branch]
[The complainant]                [date of birth]
you have attended at the [police station] today because it is your wish to make telephone contact with: [Trevor John Davies]
in order to discuss the matters raised in your allegations of;
[Maintaining an unlawful sexual relationship with a child s 50 CLCA] made to Police on [22^nd October 2018]
Should you wish to make contact with the above mentioned suspect, I will provide you with the equipment and facilities necessary to record your conversation. The words you choose to use during any conversation will be entirely your own choice and this is a decision for you to make. The telephone call you propose to make is an opportunity for you to have a natural conversation with the suspect. You should not take this opportunity to demand answers to specific questions. I cannot tell you what to say or be involved in the conversation in any way however, SAPOL will assist you in the facilitation of your telephone call upon the understanding that your intention is to focus upon the matters raised by you in your allegations.
You are in charge of making the call, so you may hang up at any time. I must warn you that any criminal offences perpetrated by any party to that conversation, including the making of threats, perceived or otherwise, may result in further investigation by SAPOL and be liable to subsequent prosecution.
Do you wish to make telephone contact with [Trevor John Davies]?    YES/NO
I will provide you with a digital recorder and an ear microphone which will facilitate the recording of your conversation. The ear microphone records what you say and what is said to you. In order for the ear microphone to function effectively, you must place it in the same ear which you use to listen to the phone conversation. You will need to dail [sic] ‘0’ first in order to get an outside line. I will not be able to assist you to operate the equipment during your conversation and will not be present but I will show you how to operate the equipment now before the making of any telephone call by you.
Do you understand that?        YES/NO
After you activate the recording equipment and prior to making the telephone call you will be requested to make a statement which is outlined in the “Witness Pretext Preamble” document I am handing you. At the conclusion of your conversation and prior to ceasing the recording, there is a further statement you will be requested to make which is outlined in that document.
Do you understand how to operate the recording equipment?     YES/NO
If you are not then I am happy to explain and demonstrate its operation to you again. Would you like me to explain anything further?
Person Making Telephone Call:
Print Name: [Complainant’s name printed]         Signature:    [Signed]
Signed in Presence of:
Print Name: [O. Wales]  Signature:    [Signed]
Rank:        [DBS]  ID No:[…]
The police officer then left the room while the complainant made the pretext call and spoke with the appellant. The call concluded at 10.41 am.
Later that day, the police arrested the appellant at his home address. He was explained his arrest rights and refused to answer any questions.
Discussion
The first issue which arises is whether the conversation recorded on that day was in breach of s 4 of the Surveillance Devices Act. Section 4 relevantly provides:
4—Listening devices
(1)Subject to this section and section 6, a person must not knowingly install, use or cause to be used, or maintain, a listening device—
(a)     to overhear, record, monitor or listen to a private conversation to which the person is not a party; or
(b)     to record a private conversation to which the person is a party.
…
(2)     Subsection (1) does not apply—
(a)     to the use of a listening device by a party to a private conversation to record the conversation if—
(i)all principal parties to the conversation consent, expressly or impliedly, to the device being so used; or
(ii)the use of the device is reasonably necessary for the protection of the lawful interests of that person; or
…
It can be seen that under the Act, a recording of a private conversation is unlawful unless it falls within one of the exceptions provided for in the Act. In this case, the prosecution relied on the exception in s 4(2)(a)(ii).

In submissions on the appeal, the appellant contended that the call could not fall within that exception as the complainant, being a witness in a criminal prosecution, had no lawful interest in the prosecution of the appellant. In any event, the purpose of the conversation was not to protect a prosecution, but to shore up the evidence in order to secure a conviction. It was submitted that the telephone call was instigated by the police and not the complainant and was therefore provocative and proactive, rather than protective of any lawful interest of the complainant.
In making that submission, the appellant contended that the facts in this case are distinguishable from the facts in Groom v Police,[1] in which Nicholson J held, on appeal from the Magistrates Court, that a protected person under an intervention order had a lawful interest in recording a conversation between herself and the person against whom the intervention order had been made. It was held that the complainant had a legitimate concern for her own safety during a handover of a child, with whom she and the person against whom the intervention order had been made, shared custody.
[1] (2015) 252 A Crim R 332.
In relation to the unfairness discretion, the appellant’s main contention was that it should be exercised to exclude the evidence because the police unfairly subverted the well‑established rule of fairness that, before questioning a suspect, the police are obliged to caution them.
At the outset, the respondent complained that the appellant did not raise the argument as to unfairness at the voir dire hearing. If the prosecution had been properly put on notice as to that particular issue, further evidence could have been led from the police officers and potentially from the complainant as to all of the circumstances in which the pretext conversation took place.
We are prepared to proceed on the basis that the appellant did raise the general issue of unfairness, although in the briefest of ways, during submissions made on the voir dire hearing, in the following exchange between counsel for the appellant and the trial Judge:[2]
MR VADASZ:     My submission is that, firstly, police did not have the power to undertake these steps. Secondly, that it wasn’t in the public interest and, thirdly, there is a fairness aspect, and if your Honour is not with me on those two there is a fairness aspect and the evidence should be excluded on that basis.
HIS HONOUR:    So you say that if contrary your submission the call is admissible it should be excluded in the fairness discretion.
MR VADASZ:     Yes.
HIS HONOUR:    I follow that.
[2]     Transcript of Proceedings, R v Davies (District Court of South Australia, DCCRM-20-931, His Honour Auxiliary Judge Barrett, 6 October 2020) at 31.
We now turn to consider each of the appellant’s contentions in relation to the admissibility of the pretext conversation in more detail.
Protection of lawful interests
The first question is whether the recording of the telephone call was necessary for the protection of the lawful interests of the complainant.
The meaning of ‘lawful interest’ in the context of the Surveillance Devices Act has been considered in a number of authorities in this Court. In Thomas v Nash,[3] Doyle CJ, in the context of civil proceedings, made the following observations:
[46]I have considered a number of decisions dealing with the relevant provisions of the Act, and with similar legislation elsewhere. The decisions are: T v Medical Board (SA) (1992) 58 SASR 382 at 399 (Matheson J), at 421 (Olsson J) and at 423 (Debelle J); Public Trustee v Alvaro (1995) 182 LSJS 383 at 405 (Legoe AJ); Violi v Berrivale Orchards Ltd (2000) 99 FCR 580; [2000] FCA 797 at [27]-[33] (Branson J); R v Le (2004) 60 NSWLR 108; [2004] NSWCCA 82 at [47] (Giles JA), at [79] (Hulme J) and at [83]-[84] (Adams J); Sepulveda v The Queen (2006) 167 A Crim R 108; [2006] NSWCCA 379 at [142]-[143] (Johnson J), with whom the other members of the court agreed.
[47]In none of those decisions is there an attempt to identify comprehensively the scope of the expression “lawful interests”. That is not surprising. It is an expression which is best left to be applied case-by-case, subject to some general guidelines.
[48]Each decision is an application of the expression to its particular facts. In most of those decisions it was accepted that a mere desire to have a reliable record of a conversation is not enough. I agree. Most of the decisions proceed on the basis that a desire to gain an advantage in civil proceedings would not ordinarily amount to a relevant lawful interest, although of course each case has to be considered on its facts. Several of the cases proceed on the basis that where the conversation relates to a serious crime, or an allegation of a serious crime, or to resisting such an allegation, a court is more likely to find that the recording of a conversation relating to the crime can be made in the protection of the person’s “lawful interests”.
[3] (2010) 107 SASR 309 at [46]-[48].
In Groom, Nicholson J, in the course of agreeing with the observations of Doyle CJ in the paragraph cited above, stated:[4]
I agree, with respect, with his Honour’s observation that, when considering whether or not a recording of a private conversation has been obtained in pursuit of a person’s lawful interests, each case will need to be considered on its facts. It also makes sense that, in circumstances where a recorded conversation relates to a serious crime, a court will more readily make a finding that the recording was made in the protection of a person’s lawful interests.
[4] (2015) 252 A Crim R 332 at [35].
More recently, in the context of civil proceedings in Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd, [5] Doyle J surveyed the authorities and concluded as follows:
[101]Drawing all of the above threads together, it remains the case that the concept of “lawful interests” is of uncertain content. While some general propositions hold true, and some guidance may be gained from a consideration of the authorities, the issue of whether a recording was made for the protection of a person’s lawful interests remains one very much anchored in the facts of the particular case.
[102]While the reasons of Branson J in Violi v Berrivale Orchards Ltd, and several of the interstate decisions that have applied her Honour’s articulation of “lawful interests”, suggest a relatively broad view of that phrase, it is also important to bear in mind the need to ensure that the phrase is construed in its statutory context. In particular, as a number of decisions have emphasised, the exception in relation to “lawful interests” should not be construed so widely as to undermine the protection intended to the afforded to private conversations under s 4 of the legislation.
[103]Based on my survey of the authorities, it would appear that a recording made merely pursuant to a practice of doing so, for the purpose of having a reliable record or in case it turns out to be advantageous in some future setting is not enough to warrant its characterisation as a recording made to protect the person’s lawful interests. Further, this will generally be so even if the recording occurs in a commercial setting where a person’s business or legal interests are the subject of discussion, and may still be so even where the person making the recording has concerns about the honesty or conduct of the other party to the conversation, is in dispute with that party or is contemplating proceedings against that party. In Violi v Berrivale Orchards Ltd, the fact that the parties were in a contractual dispute and that one party feared the other might not tell the truth was not enough; in Thomas v Nash, the contemplation of future litigation was not enough; and in RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 3), the existence of concerns about the conduct of another in their commercial dealings was not enough.
[104]In summary, while a threat to a person’s physical safety, or the desire to uncover a crime or resist an allegation of crime, will often give rise to a lawful interest that would warrant protection through the use of a listening device, not every commercial or legal interest, or dispute in relation to such an interest, will suffice to establish a lawful interest for the purposes of the legislation.
[105]However, it would seem that where a dispute has arisen, and has crystallised into a real and identifiable concern about the imminent potential for significant harm to the commercial or legal interests of a person, this may suffice to give rise to lawful interests warranting protection through the use of a listening device. This was so in Chao v Chao and Metz Holdings Pty Ltd v Simmac Pty Ltd (No 1). It was also so in Dong v Song, where McWilliams AsJ considered it critical that the situation had moved from a general or abstract concern to have a reliable record in the hope it might later be of some advantage, into a particular concern about the honesty of the defendants and the significance of the relevant conversation to imminent legal proceedings.
(Citations omitted)
[5] (2018) 132 SASR 63 at [101]-[105].
It is clear from the cited authorities that the appellant’s contentions raised for consideration the nature of the conversation between the complainant and the appellant, and the particular circumstances in which it took place.
Applying those principles to the facts established here, we consider that the trial Judge was correct to conclude that the recording of the conversation was reasonably necessary for the protection of the complainant’s lawful interests.
In R v DRF,[6] Simpson JA explained why that is so:
[90]It is not uncommon in the investigation of allegations of sexual offences for investigating police to implement methods such as they did in the present case. These have come before this Court on a number of occasions: see, for example, R v XY (2013) 84 NSWLR 363; 231 A Crim R 474; Burton; and, in the District Court, LDV. The strategy is to arrange for a complainant to engage in conversation with an alleged offender, with a view to securing some confessional evidence. Such a device is seen to be called for for two reasons. One is that, typically, sexual offences take place in private, in circumstances where there is no witness to the events. That leaves the prosecution in the position of having no corroborative evidence. The second, related, reason concerns the attitude that courts have, historically, taken to the reliability of complainants in cases of alleged sexual offences: Carr v The Queen (1988) 165 CLR 314; 35 A Crim R 387; Ewen v The Queen (2015) 250 A Crim R 544, and the cases there cited. It is true that the legislature has, over the years, attempted to curb the enthusiasm for directions to juries that imply that the evidence of a complainant is somehow deficient simply because it is uncorroborated, but those efforts have taken some time to yield results. This issue has been explored in Ewen.
[91]Notwithstanding that s 294AA of the Criminal Procedure Act now prohibits a direction that juries, before convicting in trials of sexual offences, should scrutinise with great care the uncorroborated evidence of a complainant (see Ewen at [146]), it may be expected that juries, in applying the principle of the presumption of innocence, and the need for the Crown to prove its case beyond reasonable doubt, will treat the uncorroborated evidence of complainants with some scepticism. Corroborative evidence is an important aspect of the public policy interest in the prosecution of crime. Securing confessional evidence by means that do not involve coercion or unfair tactics does not contravene public policy consideration.
[6] (2015) 263 A Crim R 573 at [90]-[91].
As in the case of DRF, here, the allegations of the complainant were serious. Absent the admission into evidence of the recorded conversation, the complainant’s allegations were largely uncorroborated. In those circumstances, we consider that the complainant had a very real lawful interest in the recording of the conversation and it was reasonably necessary on her part to protect her lawful interests by making the pretext call and recording it. As submitted by the respondent, those lawful interests included the right to vindication through the criminal justice system.
That being so, it then becomes necessary to consider the appellant’s further argument that the conversation should nevertheless be excluded in the application of the Court’s residual discretion to exclude evidence on the basis that it would be unfair to the appellant to admit it.
Unfairness discretion
There are a number of authorities, both interstate and overseas, which deal with the issue of the lawfulness of recording a private conversation in the specific context of criminal proceedings.
Perhaps the most succinct and helpful articulation of the principles which apply in that context is to be found in Pavitt v The Queen.[7]
[7] (2007) 169 A Crim R 452.
In Pavitt, the appellant was convicted following a trial of a number of counts of a sexual nature against a child under 16 years of age. The New South Wales Court of Criminal Appeal held that a covertly recorded telephone conversation between the complainant and the appellant was properly admitted at his trial. The conversation in Pavitt was recorded at the instigation of the police after the complainant made allegations of historic sexual abuse. Relevantly, police were present during the conversation and handed prompts to the complainant.
After a comprehensive analysis of various Australian and Canadian authorities, the Court (McColl JA and Latham J, Adams J dissenting) summarised the relevant principles in the following way:[8]
[8]     Pavitt v The Queen (2007) 169 A Crim R 452 at [70].
[70]In our view, without being exhaustive, the following propositions relevant to the present case can be extracted from the authorities to which we have referred concerning the admissibility of covertly recorded conversations:
(a)     The underlying consideration in the admissibility of covertly recorded conversations is to look at the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned: Swaffıeld (at [91]) per Toohey, Gaudron and Gummow JJ; (at [155]) per Kirby J.
(b)     If that freedom is impugned, the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted: Swaffıeld (at [91]); a conclusion that some or all of the Broyles factors were present did not lead to the admissions being excluded in either Pavic or Carter’s cases;
(c)     Even if there is no unfairness the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards: Swaffıeld (at [91]).
(d)     The question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and/or improper include whether the accused had previously indicated that he/she refused to speak to the police;
(e)     The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required:
(i)as a threshold question, was the evidence obtained by an agent of the state?
(ii)     was the evidence elicited?
(f)    A person is a state agent if the exchange between the accused and the informer would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents: Broyles (at [30]);
(g)     Absent eliciting behaviour on the part of the police, there is no violation of the accused’s right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police: Hebert;
(h)     Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the state agent for the conduct of the conversation may also be important: Broyles.
(i)    The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful.
We are indebted to their Honours and adopt with respect their observations, as they are of particular relevance to the facts here.
There can be no doubt that, as at the date of the pretext call, the police were in possession of sufficient information to reasonably suspect that the appellant had committed an offence. It was not disputed that had the police chosen to question the appellant themselves, they would have been required to caution him and, had they arrested him, the statutory obligation under s 79A(3) of the Summary Offences Act 1953 (SA) would have been triggered.
This was the very situation which arose in The Queen v Swaffield; Pavic v The Queen.[9] In Swaffield, the High Court referred, with approval, to a line of Canadian Authorities, including R v Hebert[10] and R v Broyles,[11] which appear to be the seminal authorities for the test to be applied when considering whether covertly recorded conversations against the interests of an accused ought to be excluded in the exercise of the residual discretion.
[9] (1998) 192 CLR 159.
[10] [1990] 2 SCR 151.
[11] [1991] 3 SCR 595.
The Court observed:[12]
[90]In Environment Protection Authority v Caltex Refining Co Pty Ltd Deane, Dawson and Gaudron JJ referred to Pyneboard Pty Ltd v Trade Practices Commission where Mason ACJ, Wilson and Dawson JJ observed that it is not easy to assert confidently that the privilege against self-incrimination serves one particular policy or purpose. Deane, Dawson and Gaudron JJ then commented:
“It is generally recognised that it emerged as a reaction against procedures of the Courts of Star Chamber and High Commission, and in particular their use of the ex officio, or inquisitorial, oath. This was compulsorily administered so that a person might be examined and himself provide the accusation to be made against him.”
Against this historical background, it can be seen why the courts have spoken in terms of compulsion to speak.
[91]However, the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations.
(Citations omitted)
[12] The Queen v Swaffield; Pavic v The Queen (1998) 192 CLR 159 at [90]-[91].
In Hebert, the Supreme Court of Canada, per McLachlin J, drew a distinction between observing a suspect and actively eliciting information in circumstances where the accused had already indicated he did not wish to speak to the police. In the latter case, the Court found that the accused would be deprived of his right to silence in violation of his choice to remain silent. On the other hand, absent eliciting behaviour, if an accused chose to speak by his or her own choice, he or she runs the risk that the other party to the conversation may inform upon them.[13] There is no violation of their right to choose to speak.
[13] R v Herbert [1990] 2 SCR 151 at 184-185.

In Broyles, the police arranged a visit to the appellant by a friend of his whilst the appellant was in custody. The Court found that the friend was acting as an agent of the police for the purpose of the conversation, and that the conversation would not have taken place but for the intervention of the police. Having regard to the fact that the nature of the conversation was the ‘functional equivalent of an interrogation’, the Court made the following observations:[14]
… Where the informer who allegedly acted to subvert the right to silence of the accused is not obviously a state agent, the analysis will necessarily focus not only on the relationship between the informer and the accused, but also on the relationship between the informer and the state. The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. …
In every case, where the right to silence is raised, the threshold question will be: was the person who allegedly subverted the right to silence an agent of the state? In answering this question one should remember that the purpose of the right to silence is to limit the use of the coercive power of the state to force an individual to incriminate himself or herself; it is not to prevent individuals from incriminating themselves per se. Accordingly, if the person to whom the impugned remarks is made is not an agent of the state, there will no violation of the right to silence. …
Even if the evidence in question was acquired by an agent of the state, it will only have been acquired in violation of s 7 [of the Canadian Charter of Human Rights] if the manner in which it was acquired infringed the suspect’s right to choose to remain silent. In general, there will be no violation of the suspect’s right to silence if the suspect volunteers the information …
…
In my view, it is difficult to give a short and precise meaning of elicitation but rather one should look to a series of factors to decide the issue. These factors test the relationship between the state agent and the accused so as to answer this question: considering all the circumstances of the exchange between the accused and the state agent, is there a causal link between the conduct of the state agent and the making of the statement by the accused? …
… Did the state agent actively seek out information such that the exchange could be characterised as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.
The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?
[14] R v Broyles [1991] 3 SCR 595 at 607, 611.
In Swaffield, the appellant was arrested and charged with two break-ins and arson. He exercised his right to silence. The charges were subsequently dropped. Approximately six months later, the police commenced an undercover operation in relation to other offending. Mr Swaffield was the object of the operation. An undercover police officer had a conversation with Mr Swaffield, in which he admitted to one of the break‑ins. He was then recharged and convicted after a trial.
Applying the test as articulated in Herbert and Broyles, the majority in Swaffield considered that the admissions made by Mr Swaffield were elicited by subterfuge, in clear breach of his right to choose whether or not to speak.[15]
[15] The Queen v Swaffield; Pavic v The Queen (1998) 192 CLR 159 at [98].
In Pavic on the other hand, the Court reached the opposite conclusion. Mr Pavic was questioned by police regarding the murder of a person. In the course of the interview, he exercised his right not to answer questions. The police released him after informing him that they still believed he had killed the person. Approximately one week later, after speaking to a close friend of Mr Pavic, police formed the view that they had enough evidence to charge him with the murder. Before they did so, they suggested to the friend that he meet with Mr Pavic and speak with him, with the conversation being recorded. The friend agreed to this and during the course of the conversation, Mr Pavic made admissions to the murder. The High Court held that the friend had to be considered as an agent of the State, and that while the conversation was not set up by the police, he had spoken to Mr Pavic at the request of the police.[16] However, the Court adopted the findings of the trial Judge that no interrogation was undertaken and that the admissions were volunteered. On that basis, the Court found there was no basis to interfere with the exercise of the trial Judge’s refusal to exclude the admissions.
[16] The Queen v Swaffield; Pavic v The Queen (1998) 192 CLR 159 at [100].
We consider the facts of this case to be relevantly similar to the factual situation in Pavic and Pavitt.
Here, the nature of the relationship between the appellant and the complainant is highly relevant, as well as the nature of the conversation which actually transpired. The complainant made the call on her own. She was not prompted or handed notes throughout. We have listened to the recording of the conversation, which commenced with the complainant tearfully telling the appellant that she was having some mental health issues.
It is apparent that the conversation evolved naturally from that point. Indeed, at times, the complainant became very distressed. There was nothing to stop the appellant from having terminated the call at any time.
Moreover, the material filed as to the circumstances in which the phone call was made, reveal that the police did no more than facilitate the call. The complainant was advised that the telephone call was an opportunity to have a natural conversation with the appellant. She was advised not to demand answers to specific questions. She acknowledged explicitly that it was her decision to make the telephone call. In a telling exchange during the conversation, the appellant and the complainant said:[17]
He said,“And what are your plans for me, are you gonna have me prosecuted or?”
She said,“I don’t know what to do.” (Sniffing) I won’t win anyway, I’m only an adult now.”
He said,“Pardon?”
She said,“I wouldn’t win anyway, I’m an adult now.” (Crying)
He said,“What’s that got to do with anything?”
She said,“Well, they don’t need to save me…I’m not in the position that I used to be in.” (Sniffs)
He said,“I don’t know how they work, I just thought if you did something stupid they can…hunt you down for it thirty (30) years later.”
[17] Line 338-355.
To our minds, there was nothing in the conversation in the nature of an interrogation, nor was there any evidence to support the conclusion that the complainant was, in effect, a state agent. In this respect, we consider that the observations of the majority in Pavitt at [71]-[73] apply equally to this situation:[18]
[71]We would add that views may differ about whether a complainant is a state agent, even if the conversation is recorded in circumstances facilitated by the police: cf Thomas JA in Burt (at [12]) and de Jersey CJ in M (at [10]). For our part we would not readily apply the label of state agent to a complainant speaking to a suspect who had not been charged, nor refused to speak to police. Rather we would look at the whole relationship as revealed by the participants’ past history and what is revealed by the actual conversation. It may be relevant to consider whether the police scripted the conversation.
[72]Further, while Iacobucci J did not see it as necessary to recognise a special test for cases involving a victim speaking to the accused, in our opinion, with respect, it might be thought that conversations in such circumstances were more likely to be reliable as the suspect would have no occasion to boast, seek to big note him or herself and, to the extent the victim put allegations that the suspect had committed a criminal act vis-à-vis him or her, the suspect would more readily reject the proposition if it was false.
[73]Police could not anticipate that a suspect would readily make admissions to a person asserting he had committed a criminal act against him. As Giles JA said in Em v The Queen (at [68]), “[o]rdinarily persons do not make admissions against interest unless they are true”.
[18] Pavitt v The Queen (2007) 169 A Crim R 452 at [71]-[73].
Counsel for the appellant sought to distinguish this case on the basis that in Pavitt, the police had a warrant to listen to the conversation and therefore it was lawfully recorded. Counsel for the appellant also sought to distinguish this case from the judgment of the New South Wales Court of Appeal in R v Burton.[19] In Burton, the appellant had texted the complainant asking her to contact him, which led to the pretext call. The length of time between the sexual offending and the orchestrated telephone conversation was approximately one month. This is unlike the present case, in which there had been no contact between the appellant and the complainant for a number of years after the abuse.
[19] [2013] NSWCCA 335.
We consider this to be of little moment, as there is no doubt that there had been a relationship of stepfather and stepchild between the appellant and the complainant for some years. Indeed, the complainant opened the conversation with the appellant with ‘Hey Dad’.
In these circumstances, the absence of contact between them does not, in our view, alter the characterisation of the conversation as a voluntary exchange between them. We do not consider that the fact that the conversation was covertly recorded resulted in any unlawfulness on the part of the prosecution. Nor do we consider that it would be unfair in these circumstances or improper in the relevant sense to admit the evidence against the appellant. For these reasons, we would dismiss the first ground of appeal.
We turn now to consider the second ground, which is a complaint that the Judge’s directions to the jury improperly gave a judicial imprimatur to the pretext call.
The trial Judge said in summing up:
I turn now to the pretext call. I direct you on how you approach the evidence of the telephone call that [the complainant] had with the accused. You have heard the call that she made on 17 October 2019 and you followed the call on the transcript. There is legislation dealing with the admissibility of recorded telephone calls and there are police protocols dealing with how such calls must be conducted.
For example, the complainant must be on her own when the call is made. Police cannot be in the same room prompting her about what is said. While the complainant has to announce at the beginning and the end of the call who she is speaking to, what she says during the call is left up to her. Before the evidence of such calls can be put before you the legislative and protocol requirements have to be met. Because the call in this trial is before you, you can take it that those requirements have been met.
Counsel for the appellant submitted that there was, in fact, no evidence to suggest that the legislative or protocol requirements had been complied with, and that, in any event, the direction was irrelevant to any issue at trial and had the effect of enhancing the probative value of the pretext call beyond its intrinsic value.
The Judge correctly made it plain in his directions to the jury what the defence case was in relation to the characterisation of that conversation as so-called admissions, and made it clear what the prosecution case was in relation to the same conversation. He concluded his directions by telling the jury that it was a matter for them as to how they interpreted what the appellant was saying in the conversation.
Those directions were accurate and correct. While it may be accepted that there was no need for the Judge to direct on whether the legislative or protocol requirements had been met, as it was not an issue in the trial, we consider that to be of little consequence. We would refuse permission to appeal in respect of this ground.
Ground 3 – Admissibility of discreditable conduct evidence
Ground 3 is a submission that the trial Judge erred in ruling that the evidence of the complainant and TH was cross-admissible. Additionally, there was a further complaint that the trial Judge erred by failing to find, or by failing to direct the jury, as to whether the evidence of the complainants was admissible for ‘a propensity or tendency purpose’.
On 28 August 2020, the respondent announced that it intended to lead discreditable conduct evidence in proof of each count. That involved leading the evidence of TH in proof of count 1, and the evidence of the complainant in proof of count 2. During a pre-trial argument, the respondent submitted that the evidence of the complainant and TH was cross-admissible, first, to demonstrate the improbability, absent concoction, that each complainant would give a similar account (the similarity of account purpose), and to demonstrate that the appellant had a sexual attraction to the complainants and a propensity to act upon that attraction (the propensity purpose).
On 6 October 2020, the appellant sought an order prohibiting the prosecution from leading the discreditable conduct evidence on the basis that the evidence was more prejudicial than probative. It was also argued that there was no cross‑admissibility between the evidence of the two complainants and that they should be tried separately.
The Judge ruled that the evidence was cross-admissible on the first basis, but deferred his tentative view that it was cross-admissible for a propensity purpose until later. Ultimately, in written reasons, his Honour explained that he did not consider that the evidence could be used for any propensity purpose and for that reason, he had not directed the jury accordingly.
The directions which the Judge gave the jury on the topic of cross‑admissibility were as follows:
I will give you a direction in law about what we call cross-admissibility of evidence. By that I mean that I must direct you about how you may use evidence of one complainant when considering the evidence of the other complainant. The general rule is that you must consider each charge separately. You can see that the evidence relating to each is different and comes from a different witness. The second rule is that you could not use the evidence of one complainant when considering the evidence of the other complainant if you did not accept the evidence of the one. If you did not accept the evidence of one, then you would put that evidence aside when considering the evidence of the other.
However, if you accepted the evidence of one complainant, then you might use that evidence in this way. The prosecution is entitled to say that it is unlikely that two witnesses, each of whom seems to be independent of the other, would give similar accounts of the accused’s behaviour unless it was truthful and accurate. In other words, the prosecution says it is unlikely that the two witnesses would independently make up the same false allegations of sexual offending against the accused. You would of course have to consider whether it is possible that the similarities are the result of collusion or contamination between the two witnesses. You would also have to bear in mind that the account of the two witnesses is really different in important respects. [The complainant] says that the accused sexually abused her in quite a number of ways over a period of years. [TH] says that the accused only sexually touched her on one occasion.
There is another way in which the prosecution is entitled to rely on the evidence of one complainant when considering the evidence of the other.
The evidence of one complainant does not come out of the blue. While the Crown case is that the accused abused [the complainant] on many occasions and [TH] on only one occasion, the account of one might be thought to be more likely true because of the account of the other. These are the only ways in which you may use this evidence. You must not use it for any other purpose.
In contending that the evidence was not cross-admissible for a similarity of account purpose, the appellant argued that there were insufficient similarities between the allegations made by the complainant and those made by TH, meaning that the evidence of offending against one complainant was not significantly probative of the offending against the other.
As contended by the respondent, it needs to be borne in mind that the evidence of both complainants was to the effect that the appellant exhibited a sexual interest in them and acted upon it within the family home, usually at night when they were either watching television or engaging on a gaming console. The offending occurred while others who lived in the house were at home and often asleep in bed. It is true also that the instances of sexual abuse about which the complainant and TH gave evidence were different, in that the complainant gave evidence of far more instances of abuse and varied sexual acts than TH did. However, the respective accounts given by the complainants were broadly similar to the extent necessary to render the evidence of both cross-admissible. In our view, the reasons of Kourakis CJ in R v C, CA[20] support the conclusion that the evidence of the complainants in this case was properly admitted. Kourakis CJ observed:[21]
[20] [2013] SASCFC 137.
[21] R v C, CA [2013] SASCFC 137 at [61]-[65].
[61]The question governing the admissibility of similarity of account evidence is therefore whether the accounts of the complainants have such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect. The prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender. That prejudice may distract a jury from any defects and frailties in the evidence directly bearing on the offences charged and predispose them to convict irrespective of the strength of that evidence. It is important therefore that the similarity of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score. The prejudice engendered by multiple counts relating to different complainants poses less risk on the issue of collusion. A defence of collusion undermines the very similarity on which the prosecution relies. The question of collusion can be evaluated relatively free of the prejudice engendered by the allegations.
[62]The following shared features in the accounts of all of the complainants render it highly improbable that their complaints are the product of an unreliability or mendacity peculiar to each of them:
•      The showing of pornography to the complainants SG and MG and the discussion with MA about obtaining pornographic material online.
•      The playing of games which involved the boys exposing their genitals.
•      Swimming naked with the complainants.
•      Using the opportunity provided by showering with the complainants to stare at and touch their genitals.
[63]As between MG and MA there were further similarities in their accounts of:
•      How the appellant would fellate them whilst masturbating himself.
•      The way in which the appellant would initiate sexual activity when they slept over.
•      The appellant disclosing to them his sexual activity with another youth.
[64]I acknowledge that the extent of the sexual offending against the complainants varied. Importantly, with respect to SG, the conduct went no further than the touching of his genitals in the shower, whereas with respect to both MA and MG, the alleged offending generally comprised acts of fellatio performed by the appellant on both of them whilst he masturbated himself.
[65]The question is not whether the accounts establish a unique modus operandi, nor is the assessment of the similarities to be approached in the abstract by counting and comparing points of similarity and dissimilarity which have no bearing on the improbability of independent fabrication like the fact that the complainants did not live with their fathers. The question is whether as a matter of human experience the levels of similarity between the complaints might be expected if the complainants for reasons, conscious or sub-conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged.

We consider that the common features in the evidence of the two complainants excluded the possibility of independent fabrication and therefore outweighed any prejudicial effect that the evidence had on the appellant.
In relation to the contention that the evidence was erroneously cross‑admissible for a propensity purpose, we refer again to the directions given by the trial Judge, reproduced at [82] of these reasons. It can be seen from those passages, that the Judge left the evidence of each complainant to the jury on the basis that it was cross-admissible for the similarity of account purpose and in order to explain that the evidence of one complainant, did not, as he said, come out of the blue. Although on one view of it, that additional direction could be viewed as, in effect, amplifying the earlier direction that the evidence could be used for a similarity of account purpose, the second direction did rely upon a propensity on the part of the appellant as circumstantial evidence of a fact in issue. However, following this direction, the Judge continued:
In particular, you must not use the evidence to reason that because the accused offended against one complainant he is a bad person and on that account must have offended against the other. Reasoning in that way would be wrong and unfair. You must not allow the evidence to distract you from the need to consider whether on each charge the prosecution has proved its case beyond reasonable doubt. You cannot reason that because the accused has done something to one complainant that that is enough to prove that he has done it to the other. That sort of reasoning is wrong and unfair.
Notwithstanding the fact that neither counsel complained about the adequacy of the cross-admissibility directions at the time of summing up, we consider that the Judge made it sufficiently clear to the jury what the permissible use of the evidence was, as distinct from the impermissible use. It is important that the Judge directed the jury that, before they could act on the evidence, they would need to consider the possibility of collusion or contamination. His Honour also highlighted to the jury that the account of the two complainants was different in some important respects, particularly in relation to the number of occasions on which the appellant was alleged to have interfered with TH. Importantly, a strong direction was given against ‘bad person’ reasoning, which distinguished this line of reasoning from the permissible similarity of account reasoning.
It is significant that the jury returned a guilty verdict in respect of the offending against the complainant in count 1 and acquitted the appellant in respect of the offending against TH in count 2. In our view, this demonstrates that the acquittal on count 2 can only be explained on the basis that the jury did not accept TH’s evidence beyond reasonable doubt. Therefore, having made this finding in relation to TH’s evidence, there is no reason to think that in these circumstances, the jury nonetheless took TH’s evidence into account in reasoning to guilt in respect of the allegations concerning the complainant in count 1. It is clear that the jury understood the Judge’s directions regarding the discreditable conduct evidence and did not use the evidence for an impermissible propensity purpose.
In these circumstances, we do not consider that there is any possibility that the Judge’s directions resulted in any substantial miscarriage of justice. The evidence was cross-admissible for a similarity of account purpose. We would grant permission to appeal in respect of this ground, but dismiss the appeal in respect of it.
Ground 4 – Insufficient jury directions
Ground 4 is a complaint that the directions given by the trial Judge were inadequate, in light of the prosecution’s submissions to the jury that the appellant had told ‘a bunch of lies’, including in relation to his explanation for the statements he made during the pretext conversation. In his summing up, the Judge referred to those submissions in the following way:
[The prosecutor] submitted to you that in his evidence, the accused has told a bunch of lies. In particular, about the pretext call, his evidence is not credible or truthful. However, correctly, as a matter of law, [the prosecutor] said that even if you rejected his evidence, that does not prove the case for the prosecution; you have to go back to the evidence of the prosecution witnesses to see if the charges have been proved beyond reasonable doubt.
The appellant argued that, as no directions were given to the jury about how they could use the evidence of the appellant should they have found that he told lies, they might have reasoned to guilt without considering whether the prosecution had proven its case beyond reasonable doubt.
This ground of appeal can be dealt with briefly.
The Judge directed the jury correctly as to the standard and burden of proof and reinforced those directions when directing the jury as to the elements of the offences. Significantly, as evidenced by the passage above, those directions were reinforced immediately following the trial Judge’s summary of the prosecution case in relation to lies.
In relation to the use of the appellant’s evidence specifically, the Judge, in the usual way, directed the jury that he did not have to give evidence and could have exercised his right to remain silent. Importantly, in light of the fact that the appellant did give evidence, he instructed the jury to treat his evidence in exactly the same way as they were instructed to treat the evidence of any other witness. The jury had the absolute right to evaluate each witness and to choose whether to accept or reject his or her evidence.
In these circumstances, there is no reason to suggest that the jury would not have understood that the prosecution bore the burden of proving each element of each offence beyond reasonable doubt. We would refuse permission in respect of this ground.
Conclusion
We would dismiss the appeal in respect of ground 1 and refuse permission to appeal in respect of grounds 2 and 4. We would grant permission to appeal in respect of ground 3, but dismiss the appeal.