FMJ v The Queen
[2011] VSCA 308
•11 October 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0214
| FMJ | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG & HANSEN JJA & BEACH AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 11 October 2011 |
| DATE OF JUDGMENT | 11 October 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 308 |
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CRIMINAL LAW – Interlocutory appeal – Admissibility of recording made by complainant’s mother containing admissions by accused – Judge refused to certify interlocutory decision for appeal – Crown case not dependent upon recording alone – Criminal Procedure Act 2009 s 295(3)
CRIMINAL LAW – Evidence – Application to exclude evidence of recording pursuant to Evidence Act 2008 ss 85, 90 and 137 – Judge misstated onus of proof with regard to s 85 – Error inconsequential in particular circumstances of case – Other grounds untenable – Leave to appeal refused
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr J Fronistas | Bediaga Xavier & Ramon |
| For the Respondent | Mr G J C Silbert SC with Ms S G MacDougall | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
The applicant, FMJ, seeks review of a judge’s refusal to certify, under s 295(3) of the Criminal Procedure Act 2009, that certain evidence sought to be led by the Crown, if ruled inadmissible, would eliminate or substantially weaken the prosecution case. The application for review is brought pursuant to s 296(1) of the Act.
The trial relates to six charges of incest, and five charges of indecent act with a child under the age of 16. The applicant is the father of the child. The interlocutory decision under challenge concerns the admissibility of an audio recording made by the child’s mother when the mother spoke to the applicant some three weeks or so after the child had complained to the police about the applicant’s conduct.
The judge refused to certify the interlocutory decision. Her ruling in that regard was delivered on 30 August 2011. At an earlier stage, there had been several days of preliminary argument regarding the admissibility of the audio recording. A ruling permitting that evidence to be led was delivered on the same day as the ruling refusing to certify. It should be noted that a jury has not yet been empanelled in this matter. The trial has been adjourned to next year pending the outcome of this application.
There is ultimately one issue to be resolved. The defence seeks to have excluded a recording of a conversation between the applicant and the child’s mother which took place on 24 April 2010. The mother recorded the conversation on her own initiative, without having been asked by the police to do so, and without the knowledge of the applicant. It may be described, for convenience, as the ‘pretext recording’.
It was originally submitted on behalf of the applicant that the pretext recording was inadmissible pursuant to s 84 of the Evidence Act 2008, as well as ss 85, 90 and 137 of that Act. The judge rejected all four bases upon which the exclusion of the recording was sought. Before this Court, counsel abandoned any reliance upon s 84, and confined his submissions to the other three provisions previously invoked.
By notice filed on 9 September 2011, the applicant challenges the judge’s refusal to certify, and contends that her Honour erred in finding that the evidence of the pretext recording was of no great importance in the overall context of the trial.
By separate notice filed that same day, the applicant contends that her Honour erred in not ruling that the pretext recording should be excluded pursuant to one or other of ss 85(2), 90 or 137 of the Evidence Act2008.
Dealing first with s 85(2), the applicant contends that her Honour erred in failing to hold that evidence of certain admissions said to have been made during the course of the pretext recording was not admissible because the Crown had failed to establish that the circumstances under which those admissions were made were such as to make it unlikely that their truth was adversely affected.
As regards s 90, the applicant submits that her Honour erred in failing to hold that, having regard to the circumstances in which the admissions contained in the pretext recording were made, it would be unfair to him to use that evidence.
Finally, with regard to s 137, the applicant contends that her Honour erred in failing to hold that the probative value of that evidence was outweighed by the danger of unfair prejudice to him.
The background facts may be briefly stated. The child was born in July 1995. She is the applicant’s natural daughter. Her parents married in 1994, and separated some three years later. After their separation, the girl lived with her mother. There was no formal access arrangement, but the daughter would see her father once a week. Occasionally the daughter stayed overnight at his home.
According to the daughter, the applicant had sexually abused her for as long as she could remember. He would kiss her on the body, both over and underneath her clothing. He would kiss her breasts, hips and vagina. He would also suck her breasts. She claimed that this offending continued until she was 12 or 13 years of age.
The daughter also claimed that the applicant regularly inserted his finger into her vagina, and from time to time engaged in penile penetration. Much of what she had to say would take the form of uncharged acts.
So far as the actual charges were concerned, they may be summarised as follows. Some time between 1 January 1999 and 30 March 2000, when the applicant was living in Dandenong, his daughter came to spend the day with him. She claimed that at some point he took her into his bedroom, undressed her and had penile intercourse with her (charge 1 - incest).
On another occasion, while the applicant was living in Dandenong, he again took her into his bedroom. He removed her clothes and again had penile intercourse with her (charge 2 - incest). After that he had anal intercourse with her (charge 3 – incest).
Not long afterwards, the applicant moved to Noble Park. On a date between 1 March and 31 December 2001, his daughter came to visit him. While she was watching television, the applicant approached her and began to tickle her. He removed the clothing from her lower body, and kissed her on the breasts over the top of her clothing (charge 4 – indecent act with child under 16). He then digitally penetrated her vagina (charge 5 – incest).
Some time between 1 May and 15 June 2004, while the applicant was living at Mount Waverley, his daughter came to stay overnight at his home. At bedtime she told the applicant that her vagina was sore. He procured some cream and told her to lie down whilst he rubbed it in. In the course of doing so, he digitally penetrated her vagina (charge 6 – incest). Whilst doing so he kissed her stomach and breasts (charge 7 – indecent act with child under 16).
Between 28 February and 17 December 2006, the applicant was living at Noble Park. His daughter visited him for a day. Whilst in the lounge room he began to tickle her and wrestle with her. He put his hand down her pants and rubbed the outside of her vagina (charge 8 – indecent act with child under 16). Whilst doing so he used his other hand to push up her top and kissed her breasts (charge 9 – indecent act with child under 16).
Subsequently, the applicant moved to Hampton Park. Whilst his daughter was visiting him he approached her, lifted up her top and sucked her breasts (charge 10 – indecent act with child under 16). He then pulled down her shorts and penetrated her vagina with his tongue (charge 11 – incest).
Eventually, in February 2010, the complainant told a friend about her father’s behaviour towards her. In March 2010, she told her mother about his having sexually abused her. On 29 March 2010, the complainant and her mother reported the matter to the police.
That evening, the complainant’s mother went to the applicant’s home. She did so in order to collect a computer and some other items that belonged to her daughter. She made no mention during the course of that visit of her daughter’s allegations, or the fact that she and her daughter had been to the police earlier that day.
Later that night, the applicant telephoned the mother. He complained to her about a Facebook posting by his daughter that he had seen to the effect that she had just been to the police in order to speak to them about her father. After a brief conversation, the mother told the applicant that she would speak to their daughter and call him back. She subsequently did so. The mother later claimed that during the course of one or other of these telephone conversations, the applicant admitted to having acted inappropriately towards his daughter in the past.
The applicant was interviewed by the police on 31 March 2010. He declined to comment on any of the allegations made by his daughter, save for one allegation that he specifically denied.
As previously indicated, the mother again visited the applicant at his home on 24 April 2010. This time she had a small digital recorder concealed on her person. They discussed their daughter’s allegations for about an hour. During the course of that discussion, the applicant made what can fairly be regarded as a series of admissions. Essentially, he confirmed what he had previously said to the mother during the course of their telephone conversation several weeks earlier. It is the audio recording of that discussion that is the subject of the present application.
I have read a transcript of the pretext recording. It is fair to say that, although the applicant repeatedly denies ever having sexually penetrated his daughter, he makes a series of damaging admissions regarding inappropriate sexual behaviour towards her.
For example, the applicant speaks at one point of his having engaged in ‘mucking around’, whilst at the same time denying having committed incest. He admits to having kissed his daughter whilst drunk, while at the same time denying having had intercourse with her. When the mother puts to him that he had kissed his daughter’s breasts, he does not deny that allegation, but responds simply, ‘I haven’t said anything’. When she puts to him that he had previously admitted to having abused his daughter when they spoke over the telephone his response is, ‘I fucking didn’t tell you anything on the phone’. When she puts to him that he had previously said that he did not ‘want to hurt her [the daughter] any more’, he denies having used the words ‘any more’.
When his former wife puts to him that he had done the wrong thing by groping his daughter, he does not deny that allegation, but rather concedes that he had been wrong to do what he did. When she tells him that his daughter needs to hear him acknowledge his wrongdoing his response is, ‘I’m prepared to do anything you want but take away the legal thing’.
At one point, the applicant says:
FMJ:If we had this conversation before it probably wouldn’t go to the police but she wanted to go and you want to go. I don’t know what the story is but why? Why it went that way instead of – I would have done everything - - -
Child’s mother: But – but ---
FMJ:In my heart possible just to – to keep her, you know, to apologise for whatever I did. You think that I’d fuckin’ fuck her. That’s - that’s the thing that really got me because the first thing that the woman said ‘incest’. Before the interview. Did – did you read the interview?
Plainly, the mother was endeavouring to have the applicant acknowledge, on tape, that he had committed sexual offences against their daughter. Equally plainly, she succeeded in that endeavour. Although the applicant denied any form of sexual penetration, the net effect of what he said, in the pretext recording, would have left a jury in little doubt that he was admitting to having committed various acts of indecency, falling short of actual penetration, upon his daughter.
Of course, none of these admissions were sufficiently specific to constitute a confession to any particular charge of indecent act with a child, as contained in the indictment. Nonetheless, where the defence is to be that the complainant’s allegations are all entirely untrue, the pretext recording is potentially of significant weight.
After ruling that the pretext recording was admissible, the judge concluded that it was not of sufficient importance, in the overall context of the trial, to warrant certifying this matter for an interlocutory appeal, pursuant to s 295(3) of the Criminal Procedure Act2009. Essentially, her Honour did so on the basis that the Crown case did not depend upon the pretext recording alone. Both the complainant and her mother were available to give evidence. The complainant would give direct evidence of what the applicant had done to her. Her mother could give evidence of the admissions allegedly made to her during the course of the telephone conversations that she had with the applicant. The pretext recording did nothing more than confirm her account of what he had previously said to her over the telephone. In addition, and in any event, there was other evidence to support the complainant’s account.
Her Honour approached the certification issue on the basis that an evidentiary ruling that went against the defence would not, of itself, justify certification if there was otherwise sufficient evidence to allow the case to proceed. She cited authority for that proposition. She also indicated that the fact that the recorded conversation largely replicated what the mother would say about the earlier telephone conversation lessened overall the importance of the recording itself.
It may be that, in the particular circumstances of this case, her Honour took too narrow a view of what s 295(3) connotes. While it is true that the exclusion of the pretext recording would not, of itself, prevent this trial from continuing, it might reasonably be thought that the prosecution case would be significantly weakened without that evidence. The tape provides independent verification of what the mother claims the applicant had previously told her over the telephone. It also provides evidence of, at the very least, the commission of uncharged acts of the very kind alleged in the non-incest charges that the applicant is facing.
Be that as it may, it is perhaps more productive to deal with the question of whether leave to appeal should be granted than whether her Honour misapplied the provisions regarding certification.
Here it is necessary to have regard to her Honour’s ruling on the admissibility of the pretext recording. Having regard to the fact that the applicant no longer relies upon s 84 of the Evidence Act 2008, I put to one side her ruling regarding the operation of that provision.
After considering and rejecting the submission based upon s 84, her Honour turned to the possible application of s 85. That section provides as follows:
85 Criminal proceedings—reliability of admissions by accused
(1)This section applies only in a criminal proceeding and only to evidence of an admission made by an accused—
(a)to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or
(b)as a result of an act of another person who was, and who the accused knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the accused should be brought or should be continued.
(2)Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3)Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account—
(a)any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b)if the admission was made in response to questioning—
(i)the nature of the questions and the manner in which they were put; and
(ii)the nature of any threat, promise or other inducement made to the person questioned.
It was, and is, common ground between the parties that the complainant’s mother was relevantly a person who fell within the terms of s 85(1)(b). In other words, she was, in the circumstances of this case, a person who the applicant reasonably believed to be capable of influencing the decision whether or not he was to be prosecuted.
Accordingly, evidence of any admissions made by the applicant during the course of the pretext recording was not admissible unless the circumstances in which those admissions were made ‘were such as to make it unlikely’ that their truth was ‘adversely affected’.
Section 85 operates to render admissible any admissions of the kind that fall within sub-s (1), but only in circumstances where the reliability of those admissions can be reasonably assured. The onus of establishing admissibility under s 85(2) rests upon the Crown. Under the section, reliability (not, as at common law, voluntariness) is the touchstone of admissibility.
The judge’s ruling regarding s 85 may be briefly summarised. Having set out the relevant parts of the section, her Honour first accepted, as was all but conceded, that the complainant’s mother was, in the course of the conversation, holding herself out as having the capacity to influence the course of the prosecution. That then required a consideration of the circumstances in which the relevant admissions were made. In her Honour’s terms, she had to determine whether, in those circumstances, it was ‘unlikely the truth of the admission (sic) was adversely affected’. She correctly noted that in that context the question was not whether the admissions were in fact reliable, but whether the mother’s conduct was likely to have rendered them unreliable.
Her Honour then said:
In my view if [the mother] had simply held out the possibility that charges would not be laid and the accused would not have to face court and that he could see [the complainant] again, if he admitted all or part of the conduct alleged by [the complainant], the accused's case under s.85 would be stronger. But [the mother’s] conduct, as I have already found, was based upon her seeking confirmation of the admissions which, on her account, had already been made, not on securing admissions for the first time.
In those circumstances I am not satisfied that the conduct of [the mother] or the circumstances in which the admissions in the conversation were made render them unlikely to be true. I accept in coming to this view that it is not necessary for there to be any impropriety on the part of [the mother] and that I must take the accused's characteristics, including his vulnerabilities, into account.
I am not satisfied though that, by reason of the accused's age, personality and education, or by reason of his depressive state at the time, the circumstances in which he made the admissions are such as to make it likely that the truth of them was adversely affected. The accused's desire to avoid court and to see [the complainant] are not for these purposes in my view to be regarded as vulnerabilities which are such as to make it likely that the truth of the admissions was adversely affected.
As I have already found, the accused demonstrated that he was well aware of what was being said by [the mother] and what he was saying. He was well capable, as he demonstrated, of participating in the conversation on his own terms. He was aware almost from the start that [the mother] was offering opportunities that he wanted to take to avoid the laying of charges, trial and risk of imprisonment, and to see [the complainant] again.
I consider the nature of the admission shows that he was prepared at times to make admissions consistent with the earlier admissions to [the mother], but to go no further and to reserve his position about whether to make any admissions and to apologise until he had had his legal advice. His intransigence in at times acknowledging what he had previously told [the mother] in the telephone conversations and at times denying that when pressed are indicators to me also that the circumstances make it unlikely that the truth is adversely affected.
They demonstrate, in my view, that the accused was simply making conscious choices in order to maximise the advantage to himself. If any circumstances existed which affect the likelihood that the truth of the admissions was adversely affected, it is because of a conscious choice by the accused to take advantage of the situation offered to him by [the mother] and not because of the circumstances in which the conversation occurred.
It is relevant, in my view, as the prosecution submitted, that this occurred in the accused's own home at a reasonable time of day with a person he was well familiar with and comfortable with, that [the mother] had twice offered to leave and that had not proceeded until he had indicated he was prepared to continue. Consistently with the earlier findings, I do not consider [the mother]'s manner of participation in the conversation or the way she asked questions amounted to persistent or oppressive questions.
Therefore I am not satisfied that any basis for exclusion under s.85 has been made out.
Plainly, the judge was influenced in her conclusion that s 85 did not require the exclusion of the pretext recording by the fact that the complainant’s mother was merely seeking confirmation of the admissions which, according to her, the applicant had previously made. That was an entirely proper approach to adopt.
The difficulty arises in the formulation that her Honour adopted of the correct test to be applied. When she said that, in these circumstances, she was not satisfied that the mother’s conduct, or the circumstances in which the admissions were made, rendered them unreliable, she effectively placed the onus upon the applicant, rather than upon the Crown. It was not for the applicant to demonstrate that the circumstances rendered the admissions unlikely to be true, but for the Crown to establish that those circumstances were such as to make it unlikely that their truth was adversely affected.
Her Honour fell into the same error when she said that she was not satisfied that, by reason of the applicant’s age, personality and education, or by reason of his depressive state at the time, the admissions that he made, as recorded in the pretext recording, were unlikely to be true. It was for the Crown to establish that those circumstances did not render the admissions unlikely to be true.
Were this a public law proceeding, the erroneous reversal of the onus of proof might well require the decision under challenge to be set aside, and the matter remitted to be reconsidered according to law. However, this is not such a case. The applicant requires leave in order to challenge, at an interlocutory stage, a ruling on a point of evidence. If, notwithstanding the judge’s erroneous formulation of the relevant test, there is no basis for the exclusion of this evidence pursuant to s 85, leave to appeal should be refused.
In my view, that is precisely the situation that confronts this Court. I note that her Honour is not the first judge to have misapplied the test under s 85. In R v Esposito,[1] a trial judge in New South Wales, when considering the operation of that section said that
the circumstances were not such as to affect the likelihood of the admission being true. Although this is not the form of words which s 85(2) adopts, I have chosen it because it emphasises the test which the sub-section seems to me to pose.[2]
[1](1998) 45 NSWLR 442.
[2]Ibid 458 (emphasis altered).
On appeal, Wood CJ at CL concluded that in approaching the test for admissibility in these terms, the judge had posed for himself the wrong test. He had inverted the language of s 85(2), and had thereby focussed attention upon the wrong matter.
In Wood CJ at CL’s terms, the correct analysis was as follows:
If upon the evidence led on the voir dire ... a question legitimately arises as to whether the circumstances were such that the truth (or untruth) of the admission might have been adversely affected, then it falls to the Crown to establish upon a balance of probabilities (Evidence Act s 142) that it was unlikely that this was the case. The inquiry undertaken by the judge is not concerned with the question whether the admission was in fact made, or whether it was true (or untrue); each is for the jury …
Having regard to the factual findings made by the trial judge, Wood CJ at CL concluded that the erroneous formulation of the test under s 85(2) in that case had not given rise to a miscarriage of justice. In essence, his Honour held that no legitimate question had arisen as to the likelihood of the circumstances having rendered the truth of the admission to be adversely affected.
Much the same, in my view, can be said in this case. There is nothing whatever associated with the circumstances in which the pretext recording took place that causes any concern about, or gives rise to any doubt as to, the truth of the admissions made, or whether the truth of what the applicant said to the mother might be adversely affected. This was not a case in which, for example, the complainant’s mother had made a threat, promise, or inducement of a kind that might have caused the applicant to make a false admission. In such a case, it would be for the Crown to demonstrate that any such inducement would not have been likely to adversely affect the truthfulness of any admission made. Where, however, there is nothing of that kind, and no factor personal to the accused that might affect the reliability of his admissions, s 85(2) has no practical application. A misapplication of the onus of proof is, in such a case, of no real consequence. For these reasons, I would reject the proposed ground that relies upon s 85.
Her Honour’s reasons regarding s 90 were commendably brief. Relevantly she said:
For the reasons I have already identified, I am not satisfied that the admissions were not voluntary. I am not satisfied that the accused was unable to exercise a proper choice about whether to speak or remain silent. I am not satisfied that he was in any way impaired by his depression, the antidepressant medication he was taking, his previous night's alcohol intake, his lack of food on awakening on the 24th, or that he was suffering from any relevant sleep impairment as a result of his being on night shift, or as a result of his interrupted sleep once his depressive symptoms had returned. I do not consider that there is any basis for finding that the accused's will was overborne by the conduct of [the mother].
I should say that although the Lee principle, as originally formulated, was formulated in terms of the conduct of the police or the prosecuting authorities, I accept that it can and does extend to conduct where, as here, there was not conduct attributable to the police or the prosecuting authorities. I rely on R v. Pavitt [2007] NSWCCA 88 for that.
…
In my view that [Pavitt] makes it clear that the circumstances in which the unfairness discretion under s 90 could be exercised have not been raised on the facts of this case. I should add specifically I do not consider the conduct of [the mother] or the circumstances in which the admissions were made make them unreliable. I do not consider the conduct of [the mother] such that it can be said that the admissions were obtained by impropriety. I do not consider the circumstances of the conversation can be characterised as eliciting admissions obtained at a price which is unacceptable, having regard to prevailing community standards. Therefore the application under s 90 is rejected.
Her Honour noted correctly that s 90 basically replicates what is often described as the Lee[3] discretion. The onus in relation to that section rests upon the accused.[4] Having earlier concluded, in the context of her discussion of s 84, that the accused’s admissions were voluntary, she rightly determined that there was no basis for excluding the pretext recording on the basis that it would be unfair for the Crown to use that recording against him.
[3]R v Lee (1950) 85 CLR 133.
[4]Her Honour did misstate the onus of proof in relation to s 84 when she said that for the reasons she had earlier identified, in the context of her discussion of that section, she was ‘not satisfied that the admissions were not voluntary’. Of course, common law voluntariness is not a requirement for admissibility under s 84. And in any event, the onus of establishing that any admission should be received, and was not influenced by ’violent, oppressive, inhuman or degrading conduct’, or a threat of conduct of that kind rests upon the Crown, not the accused. However, none of this matters, given that, as I have said, the onus in relation to s 90 rests squarely upon the accused.
In addition, any challenge to the exercise of a judge’s discretion under s 90, in the course of an interlocutory appeal, faces the usual, and justifiably formidable, hurdle of overcoming the constraints imposed by House v The King.[5]
[5](1936) 55 CLR 499.
Finally, the challenge to the admissibility of the pretext recording based upon s 137 must fail. Her Honour’s reasoning in relation to that section was as follows:
The final basis for exclusion was under s.137 of the Evidence Act. That is, that the probative value of the evidence was outweighed by the risk of unfair prejudice. In this regard reliance was not on the matters that were relied on for s 84, 85 or 90, but rather on other matters said to create a risk of unfair prejudice. What was relied on were the following four matters: (1) comments made by [the mother], or leading questions asked by her, which asserted as fact matters which were not accepted by the accused. Two examples were provided. The first, the question by [the mother], ‘Is that the incident when she was four?’ The accused denied that any incident had occurred when [the complainant] was four. And the question, ‘Did she ever tell you to stop?’
I do not consider either of these are unfair questions in the circumstances or create an unfair risk of prejudice. So far as the first of them is concerned, it is clear from the context in which that was asked that [the mother] was referring to an incident alleged by [the complainant] in her statement, and it is clear that the accused understood that and he answered it with a denial. In respect of the, ‘Did she tell you to stop?’ question, at the time that that was asked the accused had been making admissions consistent with what [the mother] says he had said in the phone call, and his response to it showed that he fully understood the question and chose to answer it in his terms.
The second head of unfair prejudice relied on was the line of questioning, ‘Why would she lie?’ Clearly that line of questioning offends the principle in Palmer's case (Palmer v R (1998) 193 CLR 1), and that does create a real risk of unfairness to an accused person for the reasons identified in that case. In my view the unfair prejudice that flows from that can be cured in one of two ways. It can be cured by an appropriate direction to the jury not to misuse the questions, or it can be cured by removing those ‘Why did she lie?’ questions and the responses to them. I will leave it to counsel for the accused to identify which is his preferred course in respect of the ‘Why would she lie?’ questions, and if he wishes them excluded I will direct their exclusion. If he wishes them to remain in because of the context they give to the conversation around it I will leave them in and give the appropriate direction.
The third matter relied on for unfair prejudice was the discussion about the plea of guilty to lesser charges and its link to a suggestion the accused would do that in order to see his daughter. It was put that that could lead the jury to wonder about the credibility of the accused and the conduct of the defence. I must say I am not sure how this differs from any of the discussions about making admissions to a counsellor of the conduct admitted to in the telephone conversation in order to avoid court or to see his daughter again. In my view, a discussion about considering whether to plead guilty to lesser charges in order to ensure that the accused could see his daughter again, when seen in its context, does not create any unfair prejudice.
There is prejudice that comes from a discussion raising the prospect of a plea of guilty to lesser charges, but the accused did not accept that offer, and in fact refused to consider it until he had sought legal advice. In my view therefore there is no unfair prejudice from that. But as there was no acceptance by the accused of the possibility of pleading guilty to lesser charges in order to see his daughter, if the accused wishes to have that excluded, and does not consider that it would interfere with the context of the conversation, again I would do so.
The fourth matter relied on for unfair prejudice was the discussion where the accused raised the depth of his depressive feelings in the days immediately following his police interview and what was said to be the discussion involving looking on the internet for ways to kill himself. It is clear when one compares what can be heard on the recorded conversation with what the accused said in his evidence in the voir dire that the bulk of the evidence about that came from the accused's evidence on the voir dire. It is much more explicit there than in what was said on the tape.
Without knowing what the accused has said on the voir dire, in my view it is very difficult to ascertain from the tape that the accused is actually saying that over the Easter weekend he had looked at the Internet for ways to kill himself, including looking at the number of tablets he would need to take, of those which have been prescribed to him, to achieve that end. However, if the accused wishes that part to be excluded, again, I do not see that it is particularly relevant to the issues in the trial. Therefore if the accused wishes to have it excluded, I would do so.
Irrespective of whether the pretext recording goes into evidence, the jury will hear of the applicant’s admissions to the complainant’s mother through her account of what he said to her over the telephone. Any prejudice associated with the admission of that recording arises solely from its reliability as an incontrovertible account of what the applicant said. For that reason alone it must be acknowledged that the recording does add considerable strength to the prosecution case.
However, an increased likelihood that the accused may be convicted is not the kind of ‘prejudice’ to which s 137 is directed. As regards individual questions and answers that might be thought to be prejudicial, her Honour was fully alive to the need to edit the recording, if the defence sought to have particular parts excluded. Her ruling makes that abundantly clear. The fact that some questions and answers might ultimately be excluded does not lead to the conclusion that the recording as a whole should be rejected.
The applicant also sought to rely upon a ground that complained of the judge having refused leave to have the complainant’s mother be cross-examined on the voir dire. Her Honour concluded that the applicant had already had sufficient opportunity at the committal to cross-examine her regarding all matters that might be relevant to the admissibility of the pretext recording, and therefore no further questioning should be permitted.
This ground is devoid of merit. Not only was her Honour’s decision discretionary, but it involved a ruling on a matter of practice and procedure. A decision of that kind will not lightly be overturned on appeal.
In the circumstances, I would refuse leave to appeal.
HANSEN JA
I agree with Weinberg JA.
BEACH AJA
I also agree with Weinberg JA.
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