Director of Public Prosecutions v James Weaver (a pseudonym)[1]
[2019] VSCA 26
•21 February 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0188
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| JAMES WEAVER (A PSEUDONYM)[1] | Respondent |
[1]To ensure that there is no possibility of the identification of the victim of sexual offending, and so as to prevent any risk of prejudice to the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST, KYROU and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 February 2019 |
| DATE OF JUDGMENT: | 21 February 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 26 |
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CRIMINAL LAW – Interlocutory appeal – Rape and common assault – Alleged admissions in pretext phone call – Admissibility of evidence – Certification by trial judge that exclusion of evidence would substantially weaken the prosecution case – Application for leave to appeal – Application dismissed – DPP v Paulino (2017) 54 VR 109 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Lewis | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr D A Dann QC with Mr J Lavery | Adrian Paull |
PRIEST JA
KYROU JA
KAYE JA:
The respondent was charged on indictment with two counts of rape, and one count of common assault. Before the empanelment of the jury, the trial judge made a ruling excluding the admission into evidence of the contents of a pretext telephone call by the complainant to the respondent. On the application of the prosecution, the judge granted a certificate, under s 295(3) of the Criminal Procedure Act 2009 (‘the Act’), entitling the prosecution to seek leave to appeal the decision.
At the time of the offences alleged in the indictment, the respondent and the complainant were in a relationship, which had commenced in January 2013 and which terminated in October 2014. The first charge is that the respondent raped the complainant on a date between 3 May and 31 May 2014. The prosecution allege that on the day of the offence the complainant was at the respondent’s home in Corio. At the time she was recovering from surgery and was in bed with the respondent. It is alleged that the respondent told the complainant that he wanted to have sex with her. The complainant refused, but the respondent persisted, became aggressive towards the complainant, and forcefully penetrated her vagina with his penis. As a consequence, it is alleged that the complainant received bruising to her thighs.
The second charge is that the respondent raped the complainant in his bedroom on a date between 1 June and 31 August 2014. It is alleged that on that date the respondent said that he wanted to have sex. At the time the complainant was crying, and said she did not want to have sex with the respondent. However, the respondent proceeded to have sexual intercourse with the complainant, notwithstanding that she again said that she did not wish to do so.
The third charge is that the respondent assaulted the complainant on or about 4 August 2014. On that date, the complainant had gone out with one of her girlfriends. The respondent contacted her by telephone and insisted that she return home. Subsequently, the complainant met with the respondent in a street in Corio. When she entered his vehicle, he punched her to the right side of the face with his hand. He then grabbed her arm, and went to hit her again, before the complainant warned him that she would scream if he did so.
At the trial, the prosecution intends to adduce evidence as to the relationship between the complainant and the respondent, to provide an explanation why the complainant continued to reside with the respondent subsequent to the occasions upon which, she alleged, he had raped her. It is common ground between the prosecution and the defence that that evidence is relevant and admissible.
In particular, the prosecution intends to adduce evidence that, during the period of the relationship, the respondent was physically and emotionally aggressive towards the complainant. He did not like her going out with her friends, and he wanted her to spend all of her time with him only. He made threats that he would commit suicide, or hurt someone else, if the complainant left him. At other times, he threatened physical violence towards the complainant. During their relationship, the respondent constantly telephoned and sent text messages to the complainant, and ‘in boxed’ her through social media, in order to ascertain where she was and who she was with.
The prosecution will also adduce evidence, as part of the context to the offences, that, during the period from May to October 2014, the respondent insisted on having sex with the complainant on many occasions, despite the complainant telling him not to do so. The complainant will give evidence that the respondent continually insisted on having sex with her. She will state that she was fearful of what had occurred in May 2014, and so she submitted to his requests for sex, although she did not wish to have intercourse with him. The complainant will give evidence that at times she was afraid to refuse the respondent’s requests to have sex with her, as she was concerned that he would be violent to her.
In October 2014, when they were at a café together, the respondent acted in a possessive and aggressive manner towards the complainant in the presence of one of the complainant’s friends. It was that incident that precipitated the termination of their relationship.
The pretext telephone call
The pretext call between the complainant and the respondent, which is the subject of this application, took place in the early afternoon of 22 June 2016. For convenience, the parties, and the judge, divided the relevant part of the call into three segments, which, in fact, were consecutive. We will consider the part of the telephone conversation, which is in dispute, in the same manner.
The first segment occurred after some introductory conversation, and after the complainant told the respondent that she wished to speak to him because she had been struggling with issues relating to their relationship, including the respondent’s possessive, controlling and abusive behaviour. The segment consisted of the following exchange between the parties:
COMPLAINANT: Yeah. I’m just, like, well, why would, like, why did you used to do that when - I remember that one incident with - forced me to have sex with you and I didn't want to at all, I said, ‘No’, and you still had sex with me.
RESPONDENT: Yeah, I dunno .......... I dunno what happened.
COMPLAINANT: What do - what do you mean you don’t know what happened?
RESPONDENT: Not quite sure, man. You’ve - we was .......... again.
COMPLAINANT: Yeah. It still doesn’t justify what you did to me and I - I don’t, I’m not coping.
RESPONDENT: So you been - you been really thinking about and I - with everything happened?
COMPLAINANT: I don’t know why but something triggered and it’s come back and I'm not coping very well.
RESPONDENT: No. It would have been - would have been affecting all your - your studies and all that stuff or ‑ ‑ ‑
The second segment, which followed immediately after the first segment, was as follows:
COMPLAINANT: It’s starting to, but that’s - that’s not why, like, I - I just need closure, I need - like, why did you used to do this and to me, or why did you used to have sex with me when I’d say, no. Or why would you pressure me after I’d said, no, to the point I’d just start crying and you’d still sleep with me, why?
RESPONDENT: I don’t know, man, not quite sure.
COMPLAINANT: Please, I just - I just need to know why?
RESPONDENT: I’m not sure, man. What do you want me to say?
COMPLAINANT: I dunno what I want you to say, I just - I wish that you could tell me why you did it.
RESPONDENT: Can’t really find a word for it at the moment, no.
COMPLAINANT: You remember though, don't you?
RESPONDENT: Not that well, so - yeah. What else would you want to talk about, just - just that or ‑ ‑ ‑
COMPLAINANT: Mainly.
RESPONDENT: Mainly.
The third segment followed immediately after the second segment, and was as follows:
COMPLAINANT: ‘Cause it’s .......... I'm struggling to cope with the most.
RESPONDENT: Yeah, I know. I - I am - I am sorry all the things I’ve done, you know, I wish I had - I’d been more better, you know. But, yes, I was a bit, you know, getting to the point when it was - and it wasn’t healthy for both of us but, yes and no. Yeah.
COMPLAINANT: Sorry, I’m just - I’m not too sure what to say. Do you at least remember me saying, ‘No’, and you’d just going and going and going until I was just - had no choice, and I would cry and I’d still say, ’No’, and you’d still have sex with me.
RESPONDENT: Mm.
COMPLAINANT: I just don’t understand why you would do that to another person that you were supposed to care about.
RESPONDENT: Yeah, and - yeah. I’m sorry for that though. Some things, you know, I’ve done wish I shouldn’t of. But, you know ‑ ‑ ‑
Submissions before trial judge
In submissions before the trial judge, the prosecutor contended that the jury could reasonably conclude that, in the first segment, the respondent admitted to accusations made by the complainant which constituted the offence that was alleged in the first charge. He further submitted that, in any event, the jury could reasonably conclude that, in each of the three segments, the respondent admitted to relevant aspects of the context evidence that the prosecution sought to adduce before the jury. The prosecutor contended that the context evidence was of substantial probative value, because it provided important support to the credibility and reliability of the allegations made by the complainant, in circumstances in which she had continued to reside with the respondent, and have a relationship with him, after the occurrence of the offences alleged in each of the charges.
In response, counsel for the respondent contended that the contents of each of the three segments were irrelevant, as the jury could not conclude that, in any of them, the respondent had made a relevant admission in respect of the matters that were suggested by the complainant in the course of each of those segments. Counsel further contended that, even if it could be concluded that the respondent, in those parts of the pretext call, did make an admission as to any of the allegations made by the complainant during the call, those admissions would, logically, be of little probative value. For, counsel submitted, the context evidence, relied on by the prosecution, concerned aspects of the relationship between the complainant and the respondent that occurred after the events that were the subject of the two rape charges. Thus, that evidence did not contain any admission to the contextual circumstances in which it was alleged by the complainant that those two incidents occurred.
Accordingly, counsel for the respondent noted that the context evidence was only relevant in order to counter a point that was to be relied on by the defence, namely, that the complainant and the respondent had continued in a relationship together for some time after each of the incidents which were the subject of charges 1 and 2 on the indictment.
Counsel further contended that, if the evidence of the pretext call were admitted, the judge would need to give quite complex directions to the jury, not only concerning the manner in which the jury were entitled to use it, but also in order to preclude the jury engaging in impermissible propensity or tendency reasoning. It was submitted that such directions would be complex, and might have the capacity to elevate the importance of the evidence contained in the pretext call above its true probative weight.
The judge’s ruling
In his ruling, the judge stated that he was satisfied that the respondent did not, in the pretext call, make any admission in relation to any of the charges on the indictment. His Honour considered that while, in the first segment, the complainant spoke of a specific incident, the response by the respondent could not be interpreted as an admission to that incident. He further considered that the response made by the respondent in the second segment — ‘I don’t know, man, not quite sure’ — was in answer to a series of alternative propositions put to him by the complainant, so that the response so given by the respondent could not be regarded as an admission to any specific one or other of those propositions.
The judge did consider that the responses made by the respondent, to the questions put to him in the course of the third segment, could be capable of being regarded as an admission by the respondent to sexual misconduct. However, his Honour was concerned, first, as to how that evidence could be put before the jury, as the pretext conversation would otherwise require significant editing. Secondly, and more importantly, the judge was concerned with the use which the jury might make of that edited piece of evidence. He considered that any direction that he might give to the jury would be complex, and potentially confusing. His Honour stated:
It would, in my view, elevate a matter relating only to context to a higher level, and therefore be highly prejudicial to the accused.
Accordingly, the judge ruled that the evidence of the pretext conversation should be excluded from admission into evidence.
Certification by judge under s 295(3)(a) of the Act
Following the ruling, the prosecution applied to the judge for certification of the ruling under s 295(3)(a) of the Act. After hearing argument from the parties, the judge accepted the submission, made on behalf of the prosecution, that exclusion of the possible admissions contained in the pretext conversation would have an impact on the jury’s assessment of the credibility of the complainant, and thus had ‘the prospect of substantially weakening the prosecution case’.
Pursuant to s 295(2) of the Act, the Director of Public Prosecutions seeks leave to appeal against the ruling on one single ground, which asserts that the trial judge ‘erred in ruling that the evidence of the pretext telephone conversation … should be excluded from the evidence at trial’.
The applicant’s submissions
In short, counsel for the applicant submitted, on this application, that all three sections of the pretext call contain utterances by the respondent that could properly be considered to be admissions sufficient to go to the jury, and that the judge erred in determining otherwise. He submitted that the jury could conclude that in the first segment the respondent admitted to the offence alleged in charge 1. In any event, he submitted that the jury could conclude that the three segments of the pretext call each contain admissions by the respondent to engaging in the behaviour that constitutes the uncharged acts alleged in the Summary of Prosecution Opening for the trial filed in the Court.
Counsel for the applicant submitted that, in the context of the call, the responses made by the respondent, in the first segment, were capable of being construed by the jury as his assent to the assertions made by the complainant. In respect of the second segment, the applicant has submitted that, while a number of alternative propositions were contained in the question put to the respondent by the complainant, the ‘overarching proposition’ contained in the question, so put by the complainant, was that the respondent would have sex with the complainant notwithstanding her objections.
Counsel further submitted that the judge erred in considering that it would not be difficult to give a clear direction to the jury concerning the relevance of the contents of the pretext conversation. The parties agreed that the evidence as to the uncharged acts, and the context evidence, was relevant and admissible. Accordingly, the judge would, in any event, be required to give to the jury a direction as to the proper use to be made of that evidence. The applicant contended that a direction in relation to admission evidence is not unusual or difficult. The fact that the direction, in this case, would relate to a particular aspect of the evidence — uncharged acts — is not conceptually difficult, and would be unlikely to confuse a jury.
Counsel further contended that the judge was correct to certify, under s 295(3)(a) of the Act, that the exclusion of the evidence, contained in the pretext telephone conversation, would substantially weaken the prosecution case. He contended that the admissions made by the respondent, in that conversation, provided important support to the evidence of the complainant that during their relationship he forced her to submit to sexual intercourse with him. In that way, he submitted, the evidence provides cogent support to the context evidence, which, of itself, was important evidence in the prosecution case.
The respondent’s submissions
In response, senior counsel for the respondent submitted, first, that exclusion of the evidence, of the pretext conversation, would not substantially weaken or eliminate the prosecution case, and, accordingly, the trial judge ought not to have granted a certificate to the applicant to seek leave to appeal his ruling. In particular, it was submitted, the ruling did not preclude the complainant from giving evidence as to both the charged and uncharged acts. The prosecution was in a position to call evidence of complaint by the complainant, and some evidence, from witnesses, who observed the allegedly aggressive and controlling behaviour of the respondent. The prosecution also has available evidence as to the observations by a witness or witnesses of some physical injury to the complainant during the period in which the complainant and the respondent were in a relationship.
Counsel recognised that this Court does not have power to revisit and set aside the grant of the certificate by the trial judge. However, if the Court reaches the view that the exclusion of the pretext conversation would not substantially weaken the prosecution case, that consideration would be highly relevant to the exercise of the discretion whether this Court should grant or refuse leave to the applicant to appeal.
Counsel for the respondent then turned to the merits of the ruling. Counsel submitted that the judge was entitled to conclude that the words, uttered by the respondent in the first segment of the pretext conversation, did not contain, and could not be reasonably construed as containing, a relevant admission by the respondent of any of the allegations made by the complainant in that segment. Counsel further contended that it was open to the judge to conclude that the second segment of the conversation was not capable of yielding any of the meanings relied on by the prosecutor. The response made by the respondent, in that segment of the conversation, was to a proposition put by the complainant that contained accusations of uncharged sexual misconduct, uncharged acts of physical violence, possessive behaviour, controlling behaviour, and abusive behaviour. Accordingly, it was submitted, the jury could not reasonably conclude that the respondent’s response, in that segment of the conversation, involved an admission by him of any uncharged acts of sexual misconduct. In respect of the third segment of the conversation, counsel noted that the prosecutor had conceded to the judge that that section could not relate to any of the charged offences.
Further, it was submitted, the judge was entitled to have regard to the risk that the jury might misuse the statements made by the respondent in that segment and wrongly give it weight that was not open in the circumstances. Accordingly, it was submitted, the judge was correct to conclude that the third segment of the conversation should be excluded under s 137 of the Evidence Act 2008.
Analysis and conclusions
Under s 295(2) of the Act, a party to a criminal proceeding in the County Court, or the Trial Division of the Supreme Court, may appeal to the Court of Appeal against an interlocutory decision made in the proceeding if this Court gives the party leave to do so.
Section 295(3)(a) of the Act provides:
(3)A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies —
(a)if the interlocutory decision concerns the admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.
Although the decision, whether to grant such a certificate, is, in the first instance, left to the trial judge, this Court has made it clear that, where a judge grants such a certificate, the question whether the certificate should have been so granted may, in an appropriate case, be of significant importance in determining whether leave to appeal should be granted.
In CGL v Director of Public Prosecutions (No 2),[2] Maxwell P (with whom Buchanan and Bongiorno JJA agreed) explained the relationship between certification under s 295(3)(a) and the grant of leave to appeal, in the following terms:
The certificate under s 295(3)(a) is an important element in the management of this new procedure. Although we have no formal function of reviewing the grant of a certificate (in contrast to our function under s 296 of reviewing a refusal to certify), it will ordinarily be relevant on an evidentiary application of this kind to examine the significance of the evidence by reference to the test in s 295(3)(a). If, as here, this Court comes to a different view about the significance of the evidence in question, that is likely to bear heavily on the exercise of the discretion under s 297(1) to grant or refuse leave to appeal.[3]
[2](2010) 24 VR 482.
[3]Ibid 484 [13].
Plainly, the exclusion by the judge of the evidence of the pretext conversation would not eliminate the prosecution case. The question is whether it would ‘substantially weaken’ the prosecution case.
This Court has emphasised that the requirement, that the exclusion of the evidence would eliminate or substantially weaken the case, constitutes a ‘high hurdle’ for certification in respect of an interlocutory decision.[4] In Director of Public Prosecutions v Pace (a Pseudonym),[5] Priest and Beach JJA, in their joint judgment, explained the rationale for the stringency of the test in the following terms:
The common law set its face against the fragmentation of criminal proceedings. In our view, the introduction of a regime for interlocutory appeals in criminal cases, introduced as recently as 1 January 2010, was not intended to derogate from the overarching notion that fragmentation of criminal proceedings is undesirable. Indeed, one may readily discern from the text of the statute governing interlocutory appeals that it was not the legislature’s intention that fragmentation of criminal proceedings should ordinarily be contemplated. Thus, once a trial has commenced, leave to appeal may only be granted if the reasons for doing so clearly outweigh any disruption of the trial. Moreover, leave may only be granted if it is in the interests of justice to do so, having regard to the extent of any disruption or delay to the trial process that may arise if leave is given.[6] (citations omitted)
[4]Russell v The Queen [2016] VSCA 196 [33]; See also ZL v The Queen (2010) 208 A Crim R 325, 329 [20] (Nettle JA); Wells v The Queen (No 2) [2010] VSCA 294 [46] (Weinberg JA); Frazier v The Queen [2017] VSCA 370 [31].
[5](2015) 45 VR 276.
[6]Ibid 283 [24].
In the present case, counsel for the respondent contended that the Court should accept and adopt the explication of the phrase ‘substantially weakened’, in s 295(3)(a) of the Act, that was contained in the following passage in the reasons of Weinberg JA in Director of Public Prosecutions v Paulino:[7]
It is important to emphasise the significance of that distinction. It is worth repeating that, before certifying, a trial judge must be satisfied that the exclusion of the evidence would ‘eliminate or substantially weaken the prosecution case’. The word ‘eliminate’ has only one possible meaning. It connotes that there must be no case at all without that evidence. The alternative limb, namely ‘substantially weaken’, clearly involves questions of degree, and matters of discretion. The word ‘substantial’ is not a word with fixed meaning in all contexts. It is susceptible of ambiguity, and can conceal a lack of precision. On any view, it should be read in context and, in accordance with the Latin maxim, noscitur a sociis. Thus, ‘substantially weaken’, in the context in which that expression is used, suggests something not very far short of elimination, rather than merely significant, or important.[8]
[7](2017) 54 VR 109 (‘Paulino’).
[8]Ibid 112 [9].
That passage, from the judgment of Weinberg JA in Paulino, has been adopted and followed in a number of subsequent decisions of this Court.[9] In our view, it correctly reflects the language and structure of the sub-section, and the intended stringency of the test postulated by it.
[9]Harris (a pseudonym) v The Queen [2017] VSCA 316 [56]; Peterson v The Queen [2019] VSCA 12 [9].
In the present case, the complainant made a detailed statement to the police, and a short supplementary statement. The complainant is now 23 years of age, and, at the time she made the statement, was a full time student at university. The statement is clearly expressed, detailed, and well structured. The complainant is manifestly capable of giving a coherent and thorough account of the incidents, which constitute the offences charged against the respondent, and the contextual matters. Judging from the nature of the statement, and the manner in which the complainant conducted herself in the pretext call, she is quite articulate.
There is some, albeit limited, support for the evidence of the complainant in the evidence of a number of witnesses whose statements have formed part of the depositions. In particular, the complainant’s younger sister made two statements. In the first statement, she relates how the complainant, in early 2015, told her that the respondent had raped her. The complainant said that the respondent would hold her down, that she would be screaming ‘no’, and that the respondent would ‘rip her pants off and have sex with her.’ The complainant also told her sister that the respondent would cover her mouth up so no one could hear her. In addition, the complainant’s sister, in a second statement, stated that although she never saw the respondent hit the complainant, she did, on one occasion, see a red mark on the complainant’s face, and the complainant told her that the respondent had slapped her.
In that respect, the prosecution will also be able to rely on a text message conversation between the complainant and the respondent on 4 August 2014, in which the respondent admitted to, and apologised for, grabbing the complainant’s arm ‘really hard’ on the previous evening. On the same date the respondent had earlier sent to the complainant a text message stating: ‘I am very disappointed with you. I am gonna slap you so hard.’
The complainant’s mother will give evidence as to the nature of the relationship between the complainant and the respondent, and in particular, she will describe incidents in which the respondent was particularly possessive of the complainant. In addition, on one occasion she observed bruising to the complainant’s upper arms, which, the complainant told her, had been caused by the respondent. The complainant’s mother will further state that during their relationship she would observe the complainant and the respondent ‘rough playing’, where the complainant would tell the respondent to stop, but that he would continue to the point where it would become serious, so that the complainant would have to either scream at him or slap him to stop him.
In that way, the complainant’s mother, will provide important support to the evidence of the complainant that, in the course of their relationship, the respondent acted in a very possessive and controlling manner in his dealings with her, and that he was physically rough in his dealings with her.
In addition, the prosecution will call evidence from a male friend of the complainant who witnessed a particular incident in which the respondent acted in a particularly possessive and jealous manner towards the complainant. The friend will say that he did not see the respondent at any time ‘get physical with’ the complainant, but that the respondent was ‘really aggressive verbally’ towards the complainant on that occasion.
It is in the context of that evidence that it is necessary to assess whether the exclusion of the pretext conversation, by the judge, would have the effect of substantially weakening the prosecution case against the respondent.
In our view, the judge did not err in considering that the jury could not reasonably conclude that the complainant specifically referred to either the two incidents, the subject of charge 1 and charge 2 on the indictment, in any of the three segments of the pretext conversation relied on by the prosecution. Further, assuming – without deciding – that in any of those segments, it could be concluded that the respondent made an admission to one or more of the ‘allegations’ put to him by the complainant, the jury could not reasonably conclude that the respondent had thereby admitted to any particular act or acts, or conduct, that predated either of those two offences. Clearly, on the prosecution case, all of the context evidence occurred after the incident that is the subject of the first charge. The offence, that is the subject of the second charge, is alleged to have occurred sometime between May 2014 and August 2014. If it could be concluded that the respondent made an admission in respect of any conduct alleged by the complainant in the pretext conversation, it would be a matter of speculation whether that admission related to any conduct by him that predated the offending that is the subject of charge 2. Accordingly, a jury could not reasonably conclude that such conduct forms part of the context in which the incident, that is the subject of charge 2, was alleged to have occurred.
In those circumstances, as contended by counsel for the respondent, if it could be reasonably concluded that the respondent made any admission, in the pretext conversation, to one or more of the allegations put to him by the complainant, such an admission, or such admissions, could only reasonably be considered to have related to conduct by him towards the complainant that occurred after the two offences that are the subject of charges 1 and 2 on the indictment.
As already discussed, evidence as to the nature of the relationship between the complainant and the respondent, after the date on which the incident the subject of charge 2 is alleged to have occurred, will be relevant and admissible in the trial to provide an explanation why the complainant continued to remain in a relationship with the respondent, notwithstanding that, on her account, the respondent had twice raped her in the course of that relationship. In that way, the relationship evidence, that post-dated the offending, will be relevant to counter the proposition, that would be put on behalf of the respondent, that, by remaining in a relationship with him, the complainant had acted in a manner that was inconsistent with her allegations that he had raped her.
As such, the context evidence, of itself, is of relatively limited weight. Accordingly, assuming – without deciding – that the respondent, in the pretext conversation, made an admission or admissions to any of the allegations put to him by the complainant in the course of that conversation, any such admission so made by the respondent would only be of limited weight.
Further, as counsel for the applicant correctly accepted, assuming that a jury could reasonably conclude that the respondent made a relevant admission in the course of the pretext call, any such admission, being couched in vague and ambiguous terms, could only be accorded substantially less weight by the jury than would be the case of an admission made by an accused person in clear, precise and unambiguous terms. On the other hand, as already noted, the evidence of the complainant’s mother, as to the manner in which the respondent related to the complainant throughout their relationship, will provide more significant support to the context evidence. The exclusion of the pretext conversation, thus, would not substantially diminish the context evidence on which the prosecution seeks to rely, such context evidence of itself being, as we have noted, of relatively limited weight.
Thus, based on the foregoing analysis, the prosecution case will depend substantially on the evidence of the complainant. On the materials contained in the depositions, and judging from the pretext conversation, the complainant appears to be intelligent and articulate. Her evidence will gain some support from the other evidence to which we have referred. On the other hand, analysed properly, any admission made by the respondent, to the matters put to him by the complainant in the pretext conversation, would be of limited probative value. It follows that it could not be reasonably concluded that exclusion of the evidence of the pretext conversation could or would ‘substantially weaken’ the prosecution case against the respondent in the manner described by Weinberg JA in Paulino.
For those reasons, we do not consider that this is a case in which leave to be appeal should be granted. As this Court has emphasised, on a number of occasions, an application for leave to appeal an interlocutory decision concerning the admissibility of evidence should only be brought in circumstances in which the stringent requirements, specified in section 295(3)(a) of the Act, are fulfilled. As we have discussed, the exclusion of the evidence of the pretext call, by the ruling of the trial judge, fell well short of either eliminating or substantially weakening the prosecution case. The ruling by the trial judge was not one that was appropriate for certification. The application for leave to appeal the decision was, in that way, misconceived.
The conclusion, that we have just reached, makes it unnecessary to determine whether the judge erred by excluding each of the three segments of the pretext conversation that the prosecution seeks to rely on. Nevertheless, it is appropriate that we indicate our conclusions on that issue, albeit in brief terms.
We are not persuaded that the judge made any material error in determining that the responses by the respondent, to the questions put to him by the complainant in the first segment, could not be reasonably considered to contain any admission by him. The contents of the responses in the second segment are, perhaps, more equivocal. However, having listened to the recording of the conversation on a number of occasions, we do not consider that a jury could reasonably conclude that the response by the respondent – ‘I don’t know, man, not quite sure’ – to the question put to him by the complainant could constitute a relevant admission by him. That conclusion is reinforced by the last part of the segment, in which, when the complainant asked him ‘you remember though don’t you?’, the respondent answered ‘not that well…’
The trial judge, in our view correctly, accepted that the jury could conclude that the respondent, in the third segment of the pretext call, did make an admission to sexual misconduct. However, as we have discussed, such an admission would be of limited probative value in the context of the case. If that part of the pretext conversation were admitted into evidence, but the first two segments deleted from it, the conversation would be deprived of context. Further, as the judge pointed out, it would become necessary to give the jury a set of directions which, while comprehensible, would be somewhat complex. There is force in the observation made by the judge that such directions could have the capacity to elevate the significance of that part of the pretext conversation beyond its probative weight. In those circumstances, we consider the judge did not err in concluding that the probative value of that evidence would be outweighed by its prejudicial effect.
For the foregoing reasons, we therefore conclude the applicant should not be granted leave to appeal the decision of the trial judge excluding the contents of the pretext call from evidence.
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