Lyon (a pseudonym) v The Queen
[2019] VSCA 251
•7 November 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0184
| DYLON LYON (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | T FORREST, EMERTON and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 October 2019 |
| DATE OF JUDGMENT: | 7 November 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 251 First Revision: 7 November 2019 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1227 (Judge Campton) |
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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 16 – Whether unfair to applicant to admit pretext call evidence – Whether admissions in pretext call obtained improperly – Whether substantial miscarriage of justice occurred – No unfairness or impropriety – Leave to appeal refused – Evidence Act 2008 ss 90, 138 – Em v The Queen (2007) 232 CLR 67, Pavitt v The Queen (2007) 169 A Crim R 452 applied; R v McNeill (Ruling No 1) (2007) 209 FLR 124, R v Kerr (Ruling No 1) [2015] VSC 64 referred to.
CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 16 – Course of conduct charges – Total effective sentence 7 years’ imprisonment – Non-parole period 5 years – Whether manifestly excessive – Serious offending over lengthy period – Gross breach of trust – Total effective sentence within range – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr S K Gardner | Wards Barristers & Solicitors |
| For the Respondent | Mr C B Boyce QC | Mr J Cain, Solicitor for Public Prosecutions |
T FORREST JA
EMERTON JA
WEINBERG JA:
The applicant was convicted after a trial in the County Court of two charges of sexual penetration of a child under the age of 16. We shall set out the details in the table below:
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1 | Sexual penetration of a child under 16 (Crimes Act1958 s 45(1)) | 10 years’ imprisonment | 5 years’ imprisonment | Base |
| 2 | Sexual penetration of a child under 16 (Crimes Act 1958 s 45(1)) | 10 years’ imprisonment | 4 years’ imprisonment | 2 years |
| Total effective sentence: | 7 years’ imprisonment | |||
| Non-parole period: | 5 years | |||
| Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: | 104 days’ imprisonment | |||
| Section 6AAA statement: | N/A | |||
| Other relevant orders: | · Life reporting under Sex Offender Registration Act 2004 · Forensic sample pursuant to s 464ZF of the Crimes Act 1958 | |||
Both charges were alleged against the applicant on a ‘course of conduct’ basis, the offending said to have occurred between 1 January 2008 and 31 December 2009. The applicant was acquitted of charge 3 on the indictment (sexual penetration of a child under 16).
This appeal
The applicant sought leave to appeal against conviction on one ground:
Ground 1:The trial judge erred, and a miscarriage of justice occurred as a result of the admission of the pre-text call evidence which should have been excluded under sections 90 and 138 of the Evidence Act 2008 (Vic).
The applicant also sought leave to appeal against sentence on one ground:
Ground 1:The sentencing judge erred in the application of the principle of totality, resulting in a manifestly excessive sentence, by cumulating 2 years of the sentence imposed for Charge 2 upon the 5 year Base Sentence imposed for Charge 1, and a reduced Total Effective Sentence of less than 7 years, should have been imposed.
Both grounds of appeal are tightly drawn. The factual summary can be abbreviated to reflect this.
Factual summary
The complainant was born on 20 November 1996. She is the youngest of four siblings. Her mother died when she was 11 years old and her mother’s older sister, SD, took formal custody of her. She then lived with SD and her partner, the applicant. The applicant was born on 23 June 1974. Thus towards the end of 2008, the applicant was 34 years old and the complainant was 12.
In around 2008, the applicant was alleged to have touched the complainant’s breasts under her shirt and forcibly kissed her. On a later occasion, the applicant made the complainant feel his erect penis. These were alleged as uncharged acts.
Charge 1 (vaginal penetration)
In either late 2008 or early 2009, the applicant was alleged to have entered the complainant’s bedroom. He appeared drunk. The complainant was lying in her bed. The applicant digitally penetrated her vagina. He told her to ‘shut up’ and to ‘like it’. Later, he inserted his penis into her vagina. He continued to have sex with the complainant despite her asking him to stop. He withdrew his penis and ejaculated on the complainant’s chest. He then left the bedroom.
The complainant alleged that similar acts occurred ‘over and over’, usually about ‘three times a week, sometimes more’, usually late at night or in the early morning. She alleged that the applicant was often drunk on these occasions. On another occasion, when she was in sixth grade at primary school, the applicant, who had been drinking and arguing with SD, entered the complainant’s bedroom, waking her up and pulling her blankets off the bed. She alleged that later that evening, he entered her bedroom and had sexual intercourse with her.
Charge 2 (oral penetration)
The complainant alleged that on some of the occasions mentioned above, the applicant made the complainant perform oral sex on him.
The applicant allegedly told the complainant not to tell anyone about this sexual conduct, and said that no one would believe her if she did.
The complainant did not complain to police until many years later, on 21 November 2016. She did not tell family members about the offending. She told her boyfriend some of the details of the offending in August 2016.
Appeal against conviction
We will consider the application for leave to appeal against conviction first.
The pretext call
At the direction of the informant, Detective Senior Constable Martin Tullet, the complainant made a recorded pretext call on 8 December 2016. It is necessary to set out significant components of the transcript of the call. Names have been edited where appropriate.
[Complainant]: My full name is [the complainant]. I’m 20 years old and I reside at an address known to the police. Today is the Thursday the 8th of December 2016 and the time is 10.39 am. For the purpose of an investigation being conducted by the police, I have been handed a portable digital voice-recorder and ear microphone. The procedure to use this device has been explained to me. I am going to dial [telephone number] and I expect to speak to a person who I know as [the applicant]. It is my intention to tape record this conversation using the above recording device. I am currently at Morwell. I’ll be the only person in the room when I will activate this recording device. I activate this device freely and without the inducement or coercion of any other person.
(number dialled)
[Applicant]: Hello.
[Complainant]: Hey, how are ya?
[Applicant]: Yeah, good. What are you up to?
[Complainant]: No, nothing much.
[Applicant]: I’ve just got to go outside so you can hear me better.
[Complainant]: O.K.
[Applicant]: Yep, yeah, are you working today?
[Complainant]: Later on.
[Applicant]: Oh, yeah, cool. Yep. Work’s going all right?
[Complainant]: Yeah, it’s not too bad.
[Applicant]: Yeah, that’s good. And everything else is cool?
[Complainant]: Yeah, it’s all right.
[Applicant]: Mm’hm.
[Complainant]: How’s the kids?
[Applicant]: Yeah, they’re good, they’re good.
[Complainant]: That’s good.
…
[Applicant] Yep. Yeah, so what did you want to ask me?
[Complainant]: Just — are you alone?
[Applicant]: Mm’hm. Yeah.
[Complainant]: I found out that I’m pregnant.
[Applicant]: Yep.
[Complainant]: Yeah.
[Applicant]: Yep, mm. Well, that’s good, if that’s what you want.
[Complainant]: Oh, not really.
[Applicant]: No?
[Complainant]: No.
[Applicant]: No?
[Complainant]: …
[Applicant]: Righto. O.K. Mm’hm. So what do you - what do you think about it all though? When did you find this out?
[Complainant]: Yesterday.
[Applicant]: Oh yeah, righto, yep, yep.
[Complainant]: And [CH] doesn’t even know so - - -
[Applicant]: Yeah, righto, yep, yep. Yeah, mm. Yep, well I sort of thought that might — might happen somewhere in me mind but it, yeah. It wasn’t stressing me, I mean - - -
[Complainant]: …
[Applicant]: No, no. It never is, darl, it never is, but I mean, you’ve gotta make sure it’s what you want.
[Complainant]: I don’t, I don’t.
[Applicant]: I don’t — no, it’s not what you want?
[Complainant]: No, I don’t want to have a kid.
[Applicant]: No, no, no, ‘cause it’s going to take up the next, at least six years of your life, but mm. So what do you think?
[Complainant]: I don’t know.
[Applicant]: Mm’hm. Yep. I mean, yeah, I’m happy for ya but yeah, it’s — it’s — mm. Yeah, you’ve probably got plenty — plenty of life to live yet, and it’ll take up a lot of your life.
[Complainant]: Mm’hm.
…
[Applicant]: Yeah, that’s all right. Yeah, so yeah. Well, have you talked to anyone?
[Complainant]: Nuh.
[Applicant]: No. No, well, just tell us … all these … if you want to.
[Complainant]: … doing it though.
[Applicant]it: No, I know. I know. Yeah. I - I know you’re good with kids and all that sort, but if you’re not ready, then you’re not ready, darl. It’s not — don’t do it if you’re not ready, ‘cause like I say, it’ll take up the next six years of your life. I mean, I’ll help ya, whatever you want to do. There’s no problem there.
[Complainant]: What do you mean?
[Applicant]: Hey?
[Complainant]: What do you mean?
[Applicant]: With whatever you want to do, if you want to — if you want to have it, if you don’t, you’ve just got to let me know and I’ll help ya.
[Complainant]: Mm’hm.
[Applicant]: I would probably talk to [CH]. You talk to [CH] pretty good, don’t ya?
[Complainant]: Yeah.
[Applicant]: Yep, yep. I’d probably talk to him. Just tell him, but decide what you want to do, probably first, if it’s — if it’s not what you want to do, just tell him it’s not the right time. Yeah. And then let me know and I’ll help you pay for whatever or do whatever, no problem there. But, I mean if you want to have it, then we’ll support you all the way as well. I mean, you’re 20 years old, it’s taken me a year or so to realise that you probably are grown up and, I’ve got to let you do your thing, but I’ll certainly want to be there to help you, or whatever. I don’t — I can’t say that yes, it’s the right thing to do or no, it’s not because you know what you want to do in your life, if — if you still want a job, career and that, it just makes it hard. You can still do it though. There’s still people out there that do it. Mm’hm. But, yeah, I don’t know — I don’t know whether you’re asking me to say, do it or don’t do it, but it’s just hard for me to say.
[Complainant]: I just want to talk to you about it, that’s all.
[Applicant]: Mm’hm, yeah. Mm’hm. But yeah, yep.
[Complainant]: Can I ask you a question?
[Applicant]: Yeah.
[Complainant]: How come I never got pregnant every time you had sex with me?
[Applicant]: I never — I never did anything like that … I never - I don’t know. I don’t know how youse do it or whether you used something, or I don’t know, darl. I don’t know.
[Complainant]: Yeah, but wouldn’t there still be a chance that you could have gotten me pregnant?
[Applicant]: No.
[Complainant]: Are you sure?
[Applicant]: Yeah. Yeah. Yep. Well, I wouldn’t — I wouldn’t do anything that’s … going to do that.
[Complainant]: … are you sure you’re alone?
[Applicant]: Yeah, yeah. Yep. I’m sitting out near [R] at the minute but, I’m alone. Yep.
[Complainant]: It’s just really, really bothering me though, ‘cause I've been - - -
[Applicant]: Yep, yeah, yeah.
[Complainant]: I just … think about it a lot, I was just a kid and I just — I don’t know why you did that to me.
[Applicant]: Know what, sorry?
[Complainant]: I don’t know why you did that to me, like, put me through that.
[Applicant]: I don’t know, I — I don’t remember a lot of shit, but I know it was all probably wrong and I know probably we both stuffed up in one way, but —
[Complainant]: You made me have sex with you when I was 10 years old, or was it 11?
[Applicant]: I don’t remember but, yeah, I believe it. I believe it but, yeah. Mm’hm.
[Complainant]: I cried and you seriously, like, would not stop. I don’t know how you can think that’s O.K.
[Applicant]: No, I don’t, I don’t do that, I don’t think it’s O.K. but, no.
[Complainant]: You can’t tell if you don’t remember.
[Applicant]: No, I don’t remember a lot, darl, I’ve lost a shitload of memory and — but, anyway, that’s — that’s been, done and I’m always there to help you. I just want to know that you’re all right and you’ve — you’ve got to — if — how did you find out? Did you — at the doctors, did ya?
[Complainant]: Yes.
[Applicant]: Yeah, righto, yeah. Yeah, yep. But you are good with kids, like, look at [CA], you’re — you’re unreal with [CA] and she misses you to death.
[Complainant]: …
[Applicant]: Yeah, I’m hoping to come up there after Christmas and - - -
[Complainant]: This … ‘cause I had to move because of you.
[Applicant]: Yeah, I know I’ve stuffed up, but I was really crook and I don’t - - -
[Complainant]: You didn’t stuff up, you fucked up really big.
[Applicant]: Yeah, yeah. Yeah, I know, I — yeah. I know that.
[Complainant]: I don’t even know how to talk with you about this because clearly you don’t care.
[Applicant]: I do care and you know that. You know that. You know I do give a shit and I did.
[Complainant]: Everything was good so I don’t know … talk to you.
[Applicant]: And I do - yeah, I don’t — what am I — I can — I can apologise all my life, darl, I can apologise for ever and ever and ever. It doesn’t fix anything. It doesn’t fix anything. It’s all happened and, yes, I’m sorry, I’m very, very, very sorry, I still care and give - - -
[Complainant]: It’s all … for you, and what you
[Applicant]: Yeah, all right. Yeah, all right, but — but, yeah, all right.
[Complainant]: How can anybody make, like, a kid that little have sex with him? You’re just disgusting.
[Applicant]: Yeah, I don’t — I don’t say that is right, at all.
[Complainant]: I mean, if you did it to me, can’t you do it to the girls, like -
[Applicant]: Oh, no, I wouldn’t — I wouldn’t ever do that. I don’t know what happened back then, I don’t know why it happened, I don’t know why it happened but, I don't know why … but I don’t know. I don’t — I don’t ---
[Complainant]: …
[Applicant]: Yeah, I know but, I know, I know, I know. I’m not going to say — I can’t say anything else. All I can say is sorry. I can’t remember everything and I can’t —
[Complainant]: Well, I can’t remember everything either but I fucking know it happened.
[Applicant]: Yeah, and I’m very, very sorry. From the bottom of my heart I’m very sorry, but - - -
[Complainant]: It wasn’t just once, either, it was for a year.
[Applicant]: Well, yeah, yep. But as for, you — you leaving here that was — I was being way too hard on ya. I should have let you grow up, I should have let you - - -
[Complainant]: You didn’t let me do anything.
[Applicant]: No, I know, I know, I know and it hurts so much now. I know, and that’s … I talked to your pop and nan about it and, like, what nan said, “Sooner or later you’ve got to let go” and, yeah, I know that.
[Complainant]: You had a little bit too much control over me and I think that you liked me a little bit too much.
[Applicant]: Yeah, I just — I — I — I cared, I do care, don’t — don’t ever forget that, I do care, but - - -
[Complainant]: I don’t think you cared at night time and I was crying and you were having sex with me and …
[Applicant]: I do care, darl. You know that, yeah, I wouldn’t bloody give a shit and give you - - -
[Complainant]: …
[Applicant]: Give you money and …
[Complainant]: Money doesn’t fix everything.
[Applicant]: Yeah … no, I’m not saying money does fix anything.
[Complainant]: …
[Applicant]: No, I know that, I know that, but I mean as — as far as helping you out, I’m always there to help ya. You know that.
[Complainant]: I don’t want your help.
[Applicant]: Yeah, all right. You know I’m here. You know I’m here and - - -
[Complainant]: … there.
[Applicant]: No. No, but how — how’s your dad going, do you talk to him?
[Complainant]: I’m not talking about dad, we’re talking about what you done to me.
[Applicant]: Yeah. Yeah, all right, darl, look, you didn’t ring me up for that, you rang me up to bloody - - -
[Complainant]: Well, it just pisses me off.
[Applicant]: Yes, and I’m sorry. What else can I do? What else can I do? I do give a shit about you, I do care, you’re like one of — you — you’re just like family, I do care and I’m not going to ever say — I’m not going to ever just let you walk away and not give a shit. I wouldn’t do that to anyone. But I do give a shit. And you know that.
[Complainant]: Did you ever worry that you might have got me pregnant?
[Applicant]: Did I?
[Complainant]: Yeah.
[Applicant]: Oh, I don’t — I try to remember stuff, darling. I don’t remember nothing.
[Complainant]: Well, you probably don’t want to remember it, ‘cause you’re disgusting.
[Applicant]: No. Yeah, all right, I believe that. I believe what you’re saying but, yeah, yeah, and where are you?
[Complainant]: I’m not going to forgive you if you don’t admit to what you’ve done.
[Applicant]: Yeah, all right, all right. Yeah, righto.
…
[Applicant]: Yeah, yep, yep, yep. But as far as — so you found out at the doctors or did you do just a - - -
[Complainant]: I went to the doctors.
[Applicant]: Yep.
[Complainant]: If you tell anyone …
[Applicant]: No, I wouldn’t tell them. I won’t tell anyone at all. I won’t tell anyone. I promise you that, cross my heart, I promise you that, you know all — you know you’ve told me stuff for years and years and you know I sat up here with you and the bloke over at Maryborough, I can’t remember his name, done the wrong thing.
[Complainant]: …
[Applicant]: Well, I think you did the wrong thing but - - -
[Complainant]: Well, you know, think about what you’ve done to me.
[Applicant]: Yeah, all right, but I’m just saying you know you can tell me anything and I don’t — until you tell me or — no, I wouldn’t say nothing, and if — if you don’t want to have it and you go and do whatever, I’ll help ya and I won’t say nothing. That’s — that’s a promise.
…
[Complainant]: Oh.
[Applicant]: Oh, don’t be like that.
[Complainant]: No, you just … everything - - -
[Applicant]: Don’t be like that.
[Complainant]: - - - that you’ve done to me.
[Applicant]: No, I’m not trying to do that, I can see that you’re - - -
[Complainant]: When I was a kid, I used to visit and you used to make me have sex with you - - -
[Applicant]: Oh - - -
[Complainant]: What am I meant to do? I’d cry and then you used to give me a lift to school.
[Applicant]: I don’t remember taking you to school.
[Complainant]: …
[Applicant]: No, I don’t remember doing that but, yeah.
[Complainant]: … take me to school …
[Applicant]: Yeah, righto.
[Complainant]: Do you not remember that?
[Applicant]: No, I don’t remember that.
[Complainant]: You’re sick.
[Applicant]: Yeah, I know, I know, I know, I am, I am really, really crook, and I can’t — I’ve got no feeling in me legs and I am fucking really crook but - - -
[Complainant]: You seriously you can’t remember anything that you did to me?
[Applicant]: Yeah, I can remember things but I don’t remember — I don’t remember bugger all. I don’t remember bugger all from - - -
[Complainant]: …
[Applicant]: - - - from — from last probably, I don’t know. There’s certain things that I remember from ages ago, and certain things I don’t. I don’t remember bugger all about it too — too much. Shit, I don’t even know what the house looked like in Johnsville till I got photos of it.
…
[Complainant]: What do you remember about what you did to me?
[Applicant]: I don’t remember anything, darl, and that’s honest.
[Complainant]: You said you remember some stuff.
[Applicant]: No, some stuff about all different things. I remember some stuff, every now and again I’ll remember something that I did in Darwin, just stuff like that which was a million years ago, but I don’t remember bugger all about Johnsville, I don’t remember a lot of shit. But I believe ya, and yes, and I don’t know what else I’m meant to say. I can say I’m sorry and that.
[Complainant]: You can’t just pretend that you don’t remember because …
[Applicant]: Yeah, all right.
[Complainant]: I don’t know how you expect to forget about it and I have to remember all the time.
[Applicant]: No, I don’t forget it.
[Complainant]: … I fucking … every night.
[Applicant]: I wouldn’t — I would — I wouldn’t forget about it, if — if - if - - -
[Complainant]: … forget about it
[Applicant]: If it was there or, well, if — if I could remember, I’m not just - I wouldn’t just throw it away. But anyway, I — I — I don’t know what else to say about that. I’m sorry. I am sorry, from the bottom of my heart I am sorry, but you — you rang - - -
[Complainant]: …
[Applicant]: - - - for whatever — whatever — whatever I’ve upset you with. Whatever — I remember — I remember I’ve upset you the shit here and all that with the bloke here and I know that drove you away, I know - - -
[Complainant]: I really liked because l liked him more than I liked you.
[Applicant]: No, I knew what was — I knew something was wrong, but that doesn’t matter. That — that’s all right, that’s just fine. And it’s the same with your phone, I — I — I got pissed off with you using your phone all the time.
[Complainant]: … all the time.
[Applicant]: But I — I knew — I don’t even remember any of them so - but the - - -
[Complainant]: That’s why I never want to talk to you any more because you are the … this whole thing.
[Applicant]: No, I didn’t.
[Complainant]: Yes, you did.
[Applicant]: No, I never had — I never have.
[Complainant]: …
[Applicant]: I promise you that, I never have.
…
[Complainant]: … talk to her and you’re the one that did it.
[Applicant]: Mm’hm. Yeah, I remember going crook at you about your phone, I remember something about that.
[Complainant]: Do you remember molesting me when I was a child?
[Applicant]: Sorry?
[Complainant]: Do you remember molesting me when I was a child?
[Applicant]: No, I don’t remember that, darl, I don’t — if I could I would — would, but I don’t remember and I’m — I’m sorry. But you rang me up to tell me — to tell me this, and — and ask me what I thought, and yes, I think — I think, from what [SD]’s told me, [CH] is a good bloke. [CH] seems a decent bloke. I’d like to meet him and I - - -
[Complainant]: Yeah …
[Applicant]: Why is that?
[Complainant]: ‘Cause I don’t want him …
…
As soon as I … everything that you did to me when I was a kid, and I don’t want to …
[Applicant]: Oh, darl, I don’t know what else you want me to say. I’m sorry.
[Complainant]: Can’t you just admit to what you’ve done?
[Applicant]: I don’t know.
[Complainant]: Well, how can I forgive you?
[Applicant]: I don’t know anything.
[Complainant]: You do.
[Applicant]: But I believe you, I believe you. I don’t know.
[Complainant]: It’s not just a matter of you believing me when I was a kid … remember something.
[Applicant]: I don’t know if — if — what happened even when we were here. I was crook coming up here, I was really, really crook coming up here.
[Complainant]: But you can’t just forget everything that happened.
[Applicant]: I forget — I’ve forgotten a lot of shit, but just hang on a second, like, what — you rang me up to tell me that you — that you’re pregnant, and that’s fine, but is it — is it worrying you? What’s — what — what is worrying you about that? Tell me what’s wrong?
[Complainant]: That’s … every time that you had sex with me, you could have gotten me pregnant. I’m wondering why … one day and I get pregnant and I never — you never used any sort of protection at all, and you could have got me pregnant that many times.
[Applicant]: No, have - have - so you’ve been on the pill for a while?
[Complainant]: Yes.
[Applicant]: Yeah, righto, ‘cause I know it takes, like, three months or something before it - - -
[Complainant]: Six months.
[Applicant]: Yeah, righto, yep, yep. Oh, yep. Oh, it’s just one of them things, maybe it’s one of those things that was meant to happen. Yeah, do you think maybe - - -
[Complainant]: Then why didn’t I get pregnant every time we did it?
[Applicant]: I don’t know, I don’t know. Yep. Yep. You didn’t - you didn’t ring me up to go crook like that, you rang me up to ask me, or advise me or - - -
[Complainant]: That’s why I talk … because …
[Applicant]: Yeah, well, why … I don't know why you’d say that but, I believe it …
…
END OF CALL
[Complainant]: The person that I spoke to was [the applicant]. The time is now 11.05 and I’ll conclude this recording.
END OF RECORDING
Submissions at trial
Counsel for the applicant at his trial objected to the admission into evidence of the recording and transcript of the entirety of the pretext conversation. The prosecution sought to lead this evidence as incriminating conduct constituted by a failure to deny the allegations, a failure to remember the allegations in the context of ‘believing’ the complainant, apologising without remembering the allegations and admitting having ‘stuffed up’. The defence initially submitted that this evidence ought to have been excluded under ss 85, 90 137 and 138 of the Evidence Act 2008 (‘the Act’). It will be recalled that this application alleged error only in relation to the ss 90 and 138 components of her Honour’s ruling.
At trial, the applicant’s counsel relevantly submitted as follows:
(a) Section 90: The Court ought exercise its discretion under s 90 of the Act to refuse to admit the pretext call on the basis that having regard to the circumstances in which the admission(s) were made, it would be unfair to the accused to use the evidence.
(b) Section 138: The admissions in the pretext call were obtained improperly as a consequence of the complainant lying to the applicant about being pregnant, and thereafter conducting interrogative questioning. As a result, the applicant contended that s 138(2)(b) was engaged. Thus the prosecution bore the onus of persuading the Court that the desirability of admitting the impugned pretext conversation outweighed the undesirability of admitting that evidence. The impropriety was compounded, so the applicant alleged, by the fact that police were aware of the complainant’s intention to use a false statement to elicit an admission from the applicant, and their failure to counsel her against it. Thus the police were either knowingly or recklessly complicit in the impropriety.
The prosecution resisted both the ss 90 and 138 arguments, and contended that there was no material impropriety nor material unfairness such as to engage either section of the Act.
The trial ruling
Her Honour first dealt with the applicant’s s 85 submissions. Her ruling is irrelevant to this application, however, some of her factual findings were relevant to her subsequent consideration of ss 90 and 138. Her Honour concluded:
(c) The complainant was clearly a person who was capable of influencing a decision whether a prosecution should be brought or continued.
(d) In the impugned conversation, there was no threat, promise or inducement used to elicit any admission.
(e) The nature of the admissions amounted to more than a mere failure to deny guilt.
(f) Whilst at the start of the conversation, the complainant told the accused a lie about pregnancy, the subsequent conversation was one in which the accused chose to participate. He could have terminated it at any stage.
(g) There was no power imbalance between the parties to the pretext call, such that a ‘trust relationship’ was exploited to elicit admissions. The accused, if he felt exploited or manipulated, could have terminated the call or answered in a manner consistent with innocence.
(h) It was unlikely the truth of the admissions or implied admissions was adversely affected by the complainant falsely telling the accused that she was pregnant.
These factual findings, whilst made in connection with the s 85 argument, found their way into her Honour’s ss 90 and 138 reasoning. We can discern no error in these findings, which were clearly open to her Honour.
Her Honour then considered the s 90 submission. We observe that it is preferable where there are, in addition to the s 90 ‘unfairness’ objection, other more specific objections to the same piece of evidence, then those objections should be considered before the s 90 objection. The s 90 discretion has been described as a ‘safety net’ provision to be considered after unsuccessful applications made under other relevant provisions of the Act.[2] In this case, it would have been preferable for her Honour to have dealt with the s 138 submission before considering s 90.
[2]Em v The Queen (2007) 232 CLR 67, 104 [111] (Gummow and Hayne JJ) (‘Em’).
Her Honour correctly stated the nature of the s 90 discretion. The Court possesses discretion to refuse to admit prosecution evidence of an admission if ‘having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence’. The ruling then sets out the 11 factors relied upon by the applicant to demonstrate circumstances that rendered it unfair to admitted pretext call. These were:
(i) The police suggested to the complainant that she should conduct a pretext conversation.
(j) There was no evidence that the complainant had ever confronted the accused with the allegations previously or that the allegations had been discussed between them at all.
(k) There was no evidence that the complainant intended to do so absent the suggestion of police.
(l) The complainant elicited the admissions by lying to the accused.
(m) The complainant did so to get the accused to say what she wanted.
(n) In doing so, she sought to exploit the special relationship of trust between them and in fact did so.
(o) Police were aware of the tactic prior to the pretext call being conducted.
(p) Police did not disabuse the complainant of the tactic.
(q) Had the tactic been employed by an investigative officer, the admissions would be likely to have been excluded pursuant to ss 84, 85, 90, 137 or 138 of the Act.
(r) The admissions relied on (as implied admissions), were made in direct response to the complainant employing the tactic.
(s) When ultimately arrested by police and provided his rights, the accused exercised his right to silence.
Her Honour noted that the applicant had submitted that her Honour ought conclude that the complainant was an ‘agent of the state’ when participating in the pretext conversation and thus the applicant’s right to silence had been impugned.
The judge noted that many of the applicant’s 11 contentions were referable to a list of propositions concerning the admissibility of the covertly recorded conversations set out in Pavitt v The Queen.[3] Her Honour then recited those propositions in the following terms:
[3](2007) 169 A Crim R 452 (‘Pavitt’).
(t) The underlying consideration in the admission 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.
(u) 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.
(v) 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.
(w) The question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and improper include whether the accused had previously indicated that he or she refused to speak to the police.
(x) 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 discrete enquiries are required:
(i) as a threshold question, was the evidence obtained by an agent of the state; and
(ii) was the evidence elicited?
(y) A person is a state agent if the exchange between the accused and informer would not have taken place in the form and manner in which it did take place, but for the intervention of the state and its agents.
(z) 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 accept the risk that the recipient might inform the police.
(aa) Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and the state agent exploited any special characteristics of the relationship to extract that statement.
(bb) The fact that the conversation was covertly recorded is not of itself unfair or improper.
It is not contended by the applicant that Pavitt is no longer good law, or that somehow her Honour misapplied that decision.
The judge went on to conclude that the complainant was not acting as an agent of the state. Her Honour cited two passages from Pavitt on this issue:
[V]iews may differ about whether a complainant is a state agent, even if the conversation is recorded in circumstances facilitated by the police … 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.[4]
Further … 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.[5]
[4]Ibid 488 [71] (citations omitted).
[5]Ibid [72].
Her Honour then set out the reasons for concluding that the complainant was not acting as an agent of the state. In short, these reasons were:
(cc) The complainant was a young girl and the accused was a mature 42 year old man at the time of the pretext call.
(dd) At the time of the call, the accused had not been interviewed or charged with any offence relating to the complainant.
(ee) Whilst the complainant asked questions of the accused, they did not interfere with the accused’s right to speak or be silent. The pretext call occurred early in the police investigation. The applicant chose to take part in the conversation and made implied admissions early on in it. At all times, the accused was free to deny the allegations or terminate the call.
(ff) The informant suggested both the call and its purpose — to elicit information from the applicant. This, however, was the extent of the police involvement in the call. It was unscripted and the ‘pregnancy lie’ was a strategy developed by the complainant.
(gg) The ‘pregnancy lie’ was not unfair nor improper. Further, there was no duty on the police to dissuade the complainant from using this tactic. Its purpose was to introduce the topic of the applicant’s sexual interference.
This appeal
On this appeal, the applicant carried the burden of demonstrating that it was plainly unreasonable for her Honour to refuse to exercise her s 90 discretion to exclude the pretext call. The default position for this type of argument is that evidence of an admission, which is relevant and otherwise admissible, ought be placed before the tribunal of fact,[6] unless the circumstances that attended the making of that admission make the price of admitting that admission too high.[7] As we have observed, the s 90 discretion has been described as a ‘safety net’ provision to be considered after unsuccessful applications made under other relevant provisions of the Act.[8] The covert recording of a conversation does not, of itself, make it unfair to use the evidence, even if the accused person would not have spoken if he or she knew the conversation was being recorded.[9] In R v Kerr,[10] at trial and on interlocutory appeal, a tension was identified between earlier authorities such as Van Der Meer v The Queen,[11] Duke v The Queen,[12] R v Swaffield,[13] and the more recent case of Em. The earlier cases focused on whether, but for an identified impropriety, the disputed admissions would have been obtained. A confession which was procured by trickery might be excluded as unfair, regardless of its reliability. In Em, Gummow and Hayne JJ stated:
The very nature of the inquiries required under s 138 denies that the application of s 90 can be approached from a premise that attaches weight to an assertion that what was done by police was ‘improper’. In particular, the discretion to exclude the evidence of what the appellant told police is not to be engaged by simply asserting that a full caution was required, or expected, or should have been administered to the appellant. If that assertion is well founded (and it was not demonstrated, in argument, why it was) it fell to be considered under s 138. It was not relevant to the exercise of a discretion under s 90.[14]
[6]Collins v The Queen (1980) 31 ALR 257.
[7]R v Fernando [1999] NSWCCA 66.
[8]Em (2007) 232 CLR 67, 104 [111] (Gummow and Hayne JJ).
[9]Ibid.
[10][2015] VSC 64 (‘Kerr’).
[11](1988) ALJR 656.
[12](1989) 180 CLR 508.
[13](1998) 192 CLR 159.
[14]Em (2007) 232 CLR 67, 106 [119].
As was observed in Kerr,[15] this view is plainly inconsistent with the earlier cases.
[15]Kerr [2015] VSC 64, [36].
In our view, it is unnecessary to endeavour to resolve this tension in the present appeal, as, even applying the earlier, broader approach, there is no impropriety that could justify the engagement of s 90 of the Act. We consider that the applicant’s freedom to speak to police was not infringed at all. The pretext call was conducted prior to the applicant being charged. At the stage at which the call was made, all that had happened in the investigation was that a statement had been taken from the complainant. When the applicant was later interviewed by police, he exercised his right to silence. In our view, the conduct of the pretext call in no way impacted on the freedom of the applicant to choose not to speak. During the pretext call, he was speaking to the complainant, responding to her questions at her pace and direction. The only police input to the conversation, as we have stated, was to propose that the call occur, to outline its purpose and to supply the recording equipment.
It follows from this analysis that we agree with her Honour’s reasoning that the complainant was not an agent of the state at the time she conducted the pretext call.[16]
[16]See paragraph 26 of these reasons.
Even if the applicant’s freedom to speak was adversely impacted in some way, in our view, the overall tenor of the conversation was benign. We agree with her Honour that the lie was no more than a convenient method of introducing into the conversation the topic of the applicant’s prior sexual contact with the complainant. Thereafter, in our view, there was no enticement or entrapment. The applicant was free to deny the complainant’s assertions should he have wished, or simply to terminate the call, which he actually did for a short time. We perceive nothing in the circumstances of the conversation which constitutes unfairness to the applicant. In our view, the applicant was not ‘functionally interrogated’ as the term was used in Pavitt.[17] The applicant was twice the complainant’s age, effectively her stepfather, and as we have said, free to declare his innocence or to terminate the call.
[17](2007) 169 A Crim R 452, 487 [70].
It follows from what we have said that we do not consider that the price to be paid, for the reception of this type of pretext call with a false statement embodied within it, is too high. The false statement, as we have said, was an introductory remark. It stands in stark contrast to, for instance, the case where a police officer overstates to a suspect the strength of the prosecution body of evidence,[18] or where a suspect is misled into thinking they are a mere witness.[19] The applicant has failed to demonstrate that her Honour erred in refusing to exclude the pretext call under s 90 of the Act.
[18]See, eg, R v McNeill (Ruling No 1) (2007) 209 FLR 124.
[19]See, eg, Kerr [2015] VSC 64.
Section 138 — Analysis and conclusions
The applicant accepted that that he bore the burden of demonstrating that it was not reasonably open for her Honour to conclude that there was no relevant impropriety such as to engage the s 138 discretion. He then contended that if the
s 138 discretion were engaged, it should have been exercised in his favour.
The applicant further accepted that the pretext call contained both actual and implied admissions against his interests. We have both listened to the pretext call and read its transcript. We agree with this concession by the applicant. We also agree with both counsel that these admissions, once admitted, are powerfully probative of the respondent’s case.
Section 138(1) of the Act deals (relevantly) with evidence improperly obtained. Evidence so obtained is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the manner in which the impugned evidence was obtained. Thus, an onus rested upon the applicant to establish that the relevant admissions had been improperly obtained. In considering that issue, her Honour was required to consider s 138(2)(b). The impugned evidence is taken to have been obtained improperly if the person conducting the questioning knew, or ought reasonably to have known, that a statement made was false and that making that false statement was likely to cause the person who was being questioned to make an admission.
We consider that it was open to her Honour to conclude that the impugned evidence was not improperly obtained. Clearly, the ‘pregnancy’ statement was false and known by the complainant to be so. It is also clear that the complainant was the person conducting the questioning. Whilst the pretext conversation and its purpose were proposed by the police informant, it was the complainant herself who devised the ‘pregnancy’ strategy and otherwise was the sole contributor to the content of her side of the conversation. Her Honour was not satisfied, however, that the complainant knew or ought reasonably to have known that the false statement was likely to cause the accused to make an admission. We agree with this conclusion. As we have said, the complainant’s false statement was no more than a convenient method employed by her to introduce the topic of the alleged offending in a relatively benign context. By falsely asserting pregnancy, the complainant could move easily enough to the question, ‘[h]ow come I never got pregnant every time you had sex with me?’ without arousing undue suspicion as to the true purpose of the call.
The content of the pretext conversation, together with its tone and mood, suggest strongly to us that the applicant participated in this conversation entirely willingly; indeed, fairly early in the conversation, he rang off in order to answer another call. He then called the complainant back.
Her Honour made no finding as to whether the informant knew that the ‘pregnancy’ statement was, in fact, a lie as at the time of the pretext call. Having reviewed the evidence on this issue, we consider that the judge was entitled to make no finding on this issue. The underlying evidence is entirely uncertain.
In the face of this evidence and the lack of it, the applicant has failed to demonstrate that her Honour erred in concluding that the pretext conversation evidence was obtained improperly. This is sufficient to dispose of the s 138 aspect of this ground. For the sake of completeness, her Honour went on to consider the issue of balancing the desirability of admitting the evidence against the undesirability of admitting evidence obtained in the matter adopted in this case. Her Honour concluded that the desirability of admitting the evidence outweighed the type of undesirability countenanced by the act. We agree with this conclusion. In particular, we note that the evidence was vitally important in what otherwise was a contest of competing accounts. The probative value of the pretext call was very great indeed; the offences alleged involved grave misconduct against a child and if there was impropriety at all, it was of a modest compass.
Leave to appeal against conviction will be refused. We will now turn to the application for leave to appeal against sentence.
Appeal against sentence
As we have stated, there is one ground of appeal against sentence:
Ground 1:The sentencing judge erred in the application of the principle of totality, resulting in a manifestly excessive sentence, by cumulating 2 years of the sentence imposed for Charge 2 upon the 5 year Base Sentence imposed for Charge 1, and a reduced Total Effective Sentence of less than 7 years, should have been imposed.
We were unsure whether ground 1 alleged specific error or manifest excess. Counsel for the applicant clarified in oral argument that it was to be argued very narrowly, and therefore, approached on the basis of specific error. Neither individual sentence was said to be manifestly excessive, however, the cumulation of two years of the sentence imposed on charge 2 upon the base sentence imposed on charge 1 is said to have produced a total effective sentence that was manifestly excessive and infringed the principle of totality. In short, the argument was that there should have been less cumulation and more concurrency.
We are unable to accept this submission. This was serious offending involving a gross breach of trust and with traumatic consequences. Both offences were ‘course of conduct’ charges. Her Honour was obliged to reflect within the maximum penalties available for both charges the totality of the applicant’s conduct. This obligation also extended to the total effective sentence. Given the seriousness of the offending, the fact that it occurred regularly over a lengthy period, and the fact that the applicant elected to run a contested committal and trial, in our view, the total effective sentence was within range.
Leave to appeal against sentence will be refused.
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