Davies v The Queen

The appeal concerned a conviction for maintaining an unlawful sexual relationship with a child. The appellant, Davies, was charged with sexually abusing his two stepdaughters, the complainant and TH. He was convicted on one count relating to the complainant but acquitted on the count relating to TH. The central dispute revolved around the admissibility and directions concerning a pretext telephone conversation recorded between the complainant and the appellant, and the cross-admissibility of the complainants' evidence. The matter was heard by the Court of Appeal.

The legal issues before the Court of Appeal included whether the trial judge erred in admitting a recorded pretext telephone conversation between the complainant and the appellant, particularly in light of the *Surveillance Devices Act 2016* (SA) and the exercise of judicial discretion regarding unfairness. Additionally, the court considered whether the trial judge's directions to the jury regarding the characterisation and use of this conversation were accurate and sufficient. The court also had to determine if the evidence of the two complainants was improperly admitted due to prejudicial effect outweighing probative value, or if it was correctly admitted for the purpose of demonstrating a lack of independent fabrication and for similarity of account. Finally, the court considered whether the jury was adequately directed on the burden of proof.

The Court of Appeal held that the trial judge was correct in admitting the pretext conversation. It reasoned that the recording was reasonably necessary for the protection of the complainant's lawful interests, including her right to vindication through the criminal justice system. Given the relationship and the nature of the conversation, admitting the recording was not unfair or improper. The judge's directions on the conversation were found to be accurate, clearly outlining the prosecution and defence cases and leaving the interpretation to the jury. The court also found that the common features in the complainants' evidence excluded the possibility of independent fabrication, thus outweighing any prejudicial effect, and that the evidence was cross-admissible for similarity of account, with the judge sufficiently clarifying its permissible use. The court concluded there was no reason to believe the jury misunderstood the prosecution's burden of proof.

The appeal was dismissed in respect of the admissibility of the pretext conversation and the directions concerning it, and in respect of the cross-admissibility of the complainants' evidence. Permission to appeal was granted on one ground but the appeal was dismissed.