Pavitt v The Queen
[2007] NSWCCA 88
•2 April 2007
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Pavitt v Regina [2007] NSWCCA 88
This decision has been amended. Please see the end of the judgment for a list of the amendments.
FILE NUMBER(S):
62 of 2006
HEARING DATE(S): 28 April 2006
JUDGMENT DATE: 2 April 2007
PARTIES:
Steven John Pavitt - Appellant
The Crown - Respondent
JUDGMENT OF: McColl JA Adams J Latham J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 03/21/10293
LOWER COURT JUDICIAL OFFICER: Hughes DCJ
LOWER COURT DATE OF DECISION: 31 August 2005
COUNSEL:
J S Stratton SC - Appellant
P M Miller - Respondent
SOLICITORS:
Legal Aid Commission - Appellant
NSW Director of Public Prosecutions - Respondent
CATCHWORDS:
Evidence — Criminal trial — admissions — discretion to exclude — covertly recorded conversation between accused and complainant facilitated by police —whether conversation constituted breach of accused’s right to silence — whether conversation was the functional equivalent of an interrogation by an agent of the State
Evidence — discretion to exclude evidence — complaint evidence — whether evidence of previous complaints admissible under s 108(3) Evidence Act to restore complainant’s credibility in anticipation of suggestion by defence that complainant’s evidence was a fabrication
Criminal Law and Procedure — whether summing up to jury adequate — whether trial judge discharged obligation to ensure a fair trial of the accused — whether verdict unreasonable and inconsistent with evidence
LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Listening Devices Act 1984
Canadian Charter of Rights and Freedoms
CASES CITED:
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Carr v State of Western Australia [2006] HCATrans 582
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
EM v The Queen [2007] HCATrans 65
Foster v The Queen [1992] HCA 63; (1993) 67 ALJR 550
MFA v R [2002] HCA 53; (2002) 213 CLR 606
MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
R v Burt [1998] QCA 423; [2000] 1 Qd R 28
R v Carter [2000] VSCA 6; (2000) 1 VR 175
R v Davidson and Moyle; Ex parte Attorney-General (Q) [1996] 2 Qd R 505
R v Davis [1999] NSWCCA 15
R v DH [2000] NSWCCA 360
R v DWH [1999] NSWCCA 255
R v Heffernan; R v Peters (16 June 1998, unreported, BC9802596)
R v Ireland [1970] HCA 21; (1970) 126 CLR 321
R v Jeffries (1947) 47 SR (NSW) 284
R v M [2002] QCA 486; (2002) 135 A Crim R 324
R v Niass [2005] NSWCCA 120
R v Reardon [2002] NSWCCA 203
R v Selsby [2004] NSWCCA 381
R v Singh-Bal (1997) 92 A Crim R 397
R v Sophear Em [2003] NSWCCA 374
R v Stone (unreported, 13 December 1954)
R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159
R v Tillot (1991) 53 A Crim R 46
R v Whitmore [1999] NSWCCA 247
R v Workman [2004] NSWCCA 213; (2004) 60 NSWLR 47
Ridgeway v R [1995] HCA 33; (1995) 184 CLR 19
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Swaffield v R (1996) 88 A Crim R 98
Truong v R (1996) 86 A Crim R 188
Van der Meer v The Queen (1988) 62 ALJR 656
R v Hebert [1990] 2 SCR 151
R v Broyles [1991] 3 SCR 595
DECISION:
Appeal dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
CCA 2006/62
DC 03/21/10293McCOLL JA
ADAMS J
LATHAM J2 April 2007
Steven John Pavitt v Regina
FACTS
Steven John Pavitt appealed against his conviction of four counts of sexual intercourse without consent with a person under the age of sixteen years, one count of buggery and two counts of indecent assault.
The Crown’s case at trial was, in substance, that over a period commencing in 1983 and concluding in 1987 the appellant had sexually assaulted the complainant, a male, when the complainant was between about 12 and 16 years of age. The appellant was about six years older than the complainant. The complainant first complained to police about the matters in respect of which the appellant stood trial in 2002. After he did so the police obtained a warrant to listen to a telephone call made by the complainant on 3 March 2003 to the appellant. At that time the appellant was a suspect; the police had not decided to charge him. He had not refused to be interviewed by the police. The Crown relied upon the contents of the conversation as constituting admissions by the appellant. A tape of that conversation and a transcript were admitted over objection. The first ground of appeal complained that the trial judge erred in admitting evidence of this conversation.
Six witnesses were called who gave evidence that the complainant had complained about the appellant’s conduct to them. Three of those witnesses were childhood friends of the complainant's. Each gave evidence of conversations with the complainant contemporaneously with the incidents alleged by the Crown in which the appellant was identified as the person who had engaged in sexually inappropriate conduct with the complainant. Three other witnesses gave evidence of complaints made to them by the complainant when he was an adult about the sexually inappropriate conduct by the appellant he claimed had occurred in his youth. The second ground of appeal complained that the trial judge erred in admitting this evidence.
The third ground of appeal complained that the trial judge erred in not including a summary of the evidence concerning the matters at issue in the trial in his summing up.
The appellant was acquitted on one count. For that, and other reasons, the appellant complained that the verdicts of guilty were unreasonable and inconsistent with the evidence.
Held, dismissing the appeal
Per McColl JA and Latham J
On admissibility of taped telephone conversation
The admissibility of the taped telephone conversation turned on the following propositions:
(a) The underlying consideration in the admissibility of covertly recorded conversations is to look at the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned;
(b) If that freedom is impugned, the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted;
(c) Even if there is no unfairness the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards;
(d) The question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and/or improper include whether the accused had previously indicated that he/she refused to speak to the police;
(e) The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required:
(i)as a threshold question, was the evidence obtained by an agent of the state?
(ii) was the evidence elicited?
(f) A person is a state agent if the exchange between the accused and the informer would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents;
(g) Absent eliciting behaviour on the part of the police, there is no violation of the accused’s right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police;
(h) Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the state agent for the conduct of the conversation may also be important;
(i) The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful.
R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159; R v Hebert [1990] 2 SCR 151; R v Broyles [1991] 3 SCR 595 applied
R v Carter [2000] VSCA 6; (2000) 1 VR 175; R v Burt [1998] QCA 423; [2000] 1 Qd R 28; R v M [2002] QCA 486; (2002) 135 A Crim R 324; R v Workman [2004] NSWCCA 213; (2004) 60 NSWLR 471; Em v Regina [2006] NSWCCA 336 discussed
On the assumption the complainant was a state agent, he did not exploit any special characteristics of his relationship with the appellant.
The appellant made the admissions relied upon by the Crown voluntarily, in circumstances that did not cast doubt upon their reliability. The conversation was not the functional equivalent of an interrogation.
The appellant could have withdrawn from the conversation at any time.
The conversation took place in circumstances which did not lead to the conclusion that its admission or a conviction obtained, at least in part in reliance upon it, was bought at a price which was unacceptable, having regard to contemporary community standards.
The taped conversation was properly admitted.
Per Adams J (dissenting)
The taped conversation ought to have been excluded under either s 90 or s 137 of the Evidence Act because:
(a) The complainant was acting as the agent of the police in the curse of the taped conversation and the conversation between the appellant and the complainant was the functional equivalent of an interrogation;
(b) The police exploited the special characteristics of the relationship between the complainant and the appellant by virtue of the overwhelmingly emotional character of the allegations, both inherently and by the manner in which they were conveyed, which rendered the appellant far more likely to talk and to make admissions;
(c) The admissions were equivocal and ambiguous and did not relate in anything but the vaguest way to the charges.
R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159; R v Hebert [1990] 2 SCR 151; R v Broyles [1991] 3 SCR 595 applied
On the admissibility of the complaint evidence
Per McColl JA and Latham J (Adams J not deciding)
The evidence of complaint was admissible pursuant to s 108(3) of the Evidence Act, in order to restore the complainant’s credibility in anticipation of the suggestion (either expressly or by implication) on the part of the defence that the complainant's evidence was a fabrication (whether deliberately or otherwise).
On the adequacy of the summing up
The trial judge discharged his obligation of ensuring a fair trial of the accused. The summing up was adequate; it focussed on the critical issues at the trial including the complainant’s credibility and factors which might have detracted from it.
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620; R v Davis [1999] NSWCCA 15; R v DH [2000] NSWCCA 360 applied
On whether the verdicts were unreasonable and inconsistent with the evidence
The jury’s verdict of acquittal on one count demonstrated a logical approach, not an inconsistent one.
MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348 applied
The verdict was not unreasonable.
MFA v R [2002] HCA 53; (2002) 213 CLR 606; R v Niass [2005] NSWCCA 120 applied.
Orders
Appeal against conviction dismissed.
IN THE COURT
OF CRIMINAL APPEAL
CCA 2006/62
DC 03/21/10293McCOLL JA
ADAMS J
LATHAM JMonday 2 April 2007
Steven John PAVITT v REGINA
Judgment
McCOLL JA and LATHAM J: The appellant was convicted of four counts of sexual intercourse without consent with a person under the age of sixteen years (s 61D(i), Crimes Act 1900), one count of buggery (s 79, Crimes Act 1900) and two counts of indecent assault (s 61E(i), Crimes Act 1900) after a trial before a jury in the District Court. The trial ran from 16 February 2005 until 11 March 2005. He received a total sentence of five years with a non-parole period of three years.
He appeals against his conviction, but in the event that is unsuccessful, does not challenge his sentence.
The Crown’s case at trial was, in substance, that over a period commencing in 1983 and concluding in 1987 the appellant had sexually assaulted the complainant, a male, in four incidents, respectively described at trial as the “Kiss figurines and model planes in bedroom one” incident, the “pornographic magazine in bedroom two” incident, the “swimming pool” incident and the “dishwasher” incident.
The last of the incidents was alleged to have occurred, at the latest, on 31 December 1987. The complainant turned sixteen on 14 September 1987.
The victim first complained to police about the matters in respect of which the appellant stood trial in 2002. After he did so the police obtained a warrant to listen to a telephone call made by the complainant on 3 March 2003 to the appellant. A tape of that conversation and a transcript were tendered over objection. The tape and the transcript became exhibit F. The appellant’s first ground of appeal is that the trial judge erred in admitting that evidence.
The evidence at the trial was extensive. It included evidence from three witnesses who had been friendly with the complainant during his youth and to whom, in substance, the complainant was said to have confided (in broad terms) complaints of several of the incidents the subject of the charges. The complainant’s mother gave evidence that when the complainant was in Year 12 he told her he had been sexually abused. A woman with whom the complainant formed a relationship in his early twenties gave evidence that he had told her in around 1993 that he been abused and that when he was about twenty-five, he had told her that the appellant had abused him. The appellant’s second ground of appeal is that the trial judge erred in admitting this evidence of prior consistent representations of the complainant.
The appellant’s third and fourth grounds of appeal are self-explanatory. The third is that the trial judge erred in not including in the summing up a summary of the evidence relevant to the matters at issue at the trial. The fourth is that the jury’s verdict was unreasonable and inconsistent with the evidence.
The respective cases as summarised by the Crown were:
“The victim RA was sexually assaulted on four occasions by the Appellant, who lived nearby in the Padstow Heights area and was the elder brother of one of the victim's school friends. The sexual assaults took place between 1983 and 1987 when the victim was between about 12 and 16 years of age. The Appellant was about six years older than him. The assaults occurred in both the victim's home and the Appellant's home when no one else was there. The allegations of assaults fell into four separate incidents and were summarised by agreement in MFI 2:
Incident 1 — in the Appellant's bedroom in 1983 when the victim was about 12. These were Counts 1 to 4 and consisted of: fellatio of the victim by the Appellant; buggery of the victim by the Appellant; or attempted buggery (Count 3 was in the alternative to Count 2); and fellatio of the Appellant by the victim. The Appellant was found guilty of Counts 1, 2 and 4.
Incident 2 — in the Appellant's bedroom in 1985. This was a different room in the house by that stage. The victim was about 14. The incident was referred to as the `magazine incident' because the Appellant showed the victim a homosexual pornographic magazine to at the start of the incident. The counts were Counts 5 to 7 and involved the Appellant masturbating the victim's penis; getting the victim to fellate him; and performing fellatio on the victim. The Appellant was found guilty of each count.
Incident 3 — It was Count 8 and the Appellant was found not guilty. It was referred to as the ‘swimming pool incident' because the Appellant was alleged to have come over to the victim's house to have a swim. The allegation was that the Appellant inserted his finger or fingers in the victim's anus in the victim's bedroom sometime between 1 January 1985 and 31 December 1986 when the victim would have been between 13 and 15.
Incident 4 — in the kitchen of victim's house in 1987 when the victim was about 16. This was Count 9 and the Appellant was found guilty. It was referred to as the ‘dishwasher incident' because involved the Appellant suddenly entering the kitchen unbeknownst to the victim and grabbing him in the crotch area whilst the victim was holding some plates that he had just taken out of the dishwasher. The victim threw the plates to the floor and the Appellant left the house.
The victim's evidence
The victim RA gave evidence that he was aged 33 at the time of the trial in 2005 and was born on 14 September 1971. He grew up in Padstow Heights in a house at Villiers Road with his parents (who separated when he was about 10 years old, the father leaving the family) and his two older brothers (T 17.2.05, 1-2). The house had a swimming pool in the back and his mother worked full-time as a social worker.
The victim attended Padstow Heights Primary School and Picnic Point High School and became close friends with a girl at school, DP, who was the younger sister of the Appellant. The Pavitt family lived about three houses away around the corner in Roma Avenue and the victim could see their house from parts of their property. DP was about one month younger than the victim. DP had an older sister, WP, whom the victim believed was four years older than her. He believed that the Appellant was several years older again than WP. The Appellant seemed to the victim to be about nine or ten years older than him (T 17.2.05, 3-5) and was described as being more physically mature than him.
Incident 1, Counts 1-4: One week day afternoon in 1983 when the victim was in Year 6 and about 12 years of age, he visited the Pavitt's home in Roma Avenue to see DP. The Appellant opened the door and asked him to come inside. The Appellant told him that DP was visiting another friend further up Roma Avenue, but she would be home soon. The victim and the Appellant watched TV in the lounge room for about half an hour. The Appellant went to the toilet and called out for the victim to get him some toilet paper from the laundry. As the victim was about to hand the toilet paper around the louvre door to the Appellant, he was surprised when the Appellant pushed the door open with his foot and the victim could see his penis hanging down and his pubic hair as he sat on the toilet. He went back to the lounge room and the Appellant later came back to the lounge room.
There was a conversation about aeroplanes and the Appellant invited the victim to look at his model aeroplanes in his bedroom. Once they were in the bedroom, the victim noticed the Appellant had dolls or figurines of Kiss, a rock group band, on a shelf behind his bed, and a number of model airplanes including 747s (T 17.2.05, 5-11). The Appellant asked him, ‘Do you want to play a game?’ The Appellant took his pants off and undressed the victim. The victim was very shocked. The victim did not have any pubic hair at this time. The Appellant went down over him and started sucking his penis (Count 1). The victim was sitting on the Appellant's single bed and the Appellant was crouching down, kneeling down with his mouth over the victim's penis. This happened for a few minutes and the victim felt very scared as he didn't understand what was happening (T 17.2.05, 11-14). The Appellant rubbed and felt the victim's anus and anally penetrated him with his fingers which felt very uncomfortable. The Appellant told him to stand up and the Appellant then sat on the bed. The victim saw the Appellant's erect penis and thought it was huge. The Appellant sort of grabbed the victim's body, the victim had his back to the Appellant and pulled him back down onto his penis. The Appellant kept rubbing the victim's anus, with some sort of watery or oily lubricant. Then the victim felt him actually push it inside his rectum and he remembered excruciating pain down his legs and through his body. He felt extremely scared and believed that he was crying at the time. The Appellant pushed harder and harder with his penis (Counts 2 and 3; T 17.2.05, p 14-15). After this finished, the Appellant got the victim to suck on his penis (Count 4). He remembered the Appellant masturbating and then forcing his penis into the victim's mouth when the victim was crouching or may have been sitting on the bed. He remembered the Appellant pulling the victim's head onto his penis and then some sort of fluid in his mouth and on his face (Count 4, T 17.2.05, 17-18).
After they got dressed, the victim wanted to leave and he was crying, but the Appellant held him and made him promise repeatedly that he wouldn't tell anyone. The Appellant said surely the victim did this with his brothers at home. The Appellant said he had a problem with girls. The victim asked if he could use the toilet and once he was out of the room, he ran out the back door and up the side of the house through a side gate and ran home. He did not tell anyone what had happened because he was too scared of the Appellant (T 17.2.06, 18-20).
Incident 2, Counts 5-7: In 1985, when the victim was in Year 8 and was about 14 years old, he recalled a warm day when he was wearing shorts and he went to visit DP at the Pavitt's house. Her older sister WP opened the door and welcomed him inside. He did not know where the Appellant was at this time. He found out after a short time that DP was not home and he recalled WP walking out the front door.
He recalled the Appellant appearing and ‘grabbing’ and ‘dragging’ him into his bedroom, which had changed from the room in Incident 1. The Appellant told him that he had something he wanted to show him and he produced from the wardrobe a brown paper bag, which contained a homosexual pornographic magazine. The magazine showed men having oral and anal intercourse. The Appellant said, ‘Look at the size of their penises, look how big they are’. The Appellant took off his clothes and pulled down the victim's pants. He fondled the victim's penis (Count 5) and put the victim's hand on his (the Appellant's) penis. The victim said he was scared and he didn't like it and didn't want to do this. The Appellant replied words to the effect of, ‘Don't be worried, it's not like as if we're boyfriends’. The fondling continued for about five to ten minutes. The victim had some pubic hair at this stage (T 17.2.05, 22-3). The Appellant sucked the victim's penis and the victim got an erection. The Appellant asked whether the victim wanted to ‘fuck his arse’ and victim replied, ‘No’. The Appellant stood up, the victim was seated at the time, and the Appellant pushed his penis into the victim's face and made the victim give him oral sex. The Appellant had his hands around the victim's head and pulled him down onto his penis. The Appellant's penis was in the victim's mouth for about a minute (Count 6; T 17.2.05, 23-5). The Appellant then went back down on the victim while the victim was on the bed. The Appellant was sucking the victim's penis (Count 7; T 17.2.05, 26) and the victim ejaculated. This was the first time the victim had ejaculated.
The Appellant ‘got really really angry’ because the victim had ejaculated into his mouth. The Appellant opened the door — he did not get dressed first — went out for a time and came back with a bottle of Dettol in his hand. The Appellant said the taste from the victim ejaculating was disgusting. The Appellant opened the bottle of Dettol, took a swig of it and gargled it in front of him, then left the room again. The victim started getting dressed. When the Appellant came back he was still upset and said something like ‘why didn't you tell me you were going to do that' and the victim said he didn't know that he was going to do that. The victim then left the house by the front door. The Appellant was still very angry. The victim went up into the National Park that runs along the Georges River and hid in the bushes until it got dark and then went home. He felt grubby, scared, anxious and bewildered and didn't tell anyone what had happened (T 17.2.05, 26-8).
The victim did not have any other contact with the Appellant for a time after this incident and the next occasion the victim recalled was when the Appellant came over for the 21st birthday part of the victim's older brother, MA, when the victim was 15 years old. The victim also gave evidence that he never swam in their swimming pool with the Appellant (T 17.2.05, 30).
Incident 3, Count 8 (the Appellant was found not guilty): One weekday sometime during 1985 or 1986 when the victim would have been between 13 and 15, the victim heard knocking on the front door. He opened the door and the Appellant walked straight in and said he had come over for a swim. The Appellant was wearing business clothes. The Appellant walked into the victim's bedroom, took off rings and other things he was wearing and put them on a dresser. The victim was watching him from the entrance to his bedroom. The victim said he ‘wasn't big enough to sort of like kick him out’ and said that the Appellant was ‘known to me at the time as the devil’ (T 17.2.05, 30). 2 The Appellant finished undressing and then undressed the victim. The Appellant groped at the victim's body and started biting the victim’s nipples, which really hurt and the victim told him that it hurt. The Appellant stopped biting him and began fondling his penis and anus and stuck a finger into his anus (Count 8). The victim then said that the Appellant stuck his penis into between the victim's legs and pushed and withdrew it between his legs ‘standing up in the family bathroom and then I remember him masturbating really hard and fast and I remember he came,’ meaning the Appellant ejaculated, on the victim and on himself. The Appellant had brought a towel and went back into the victim's bedroom to get the towel. He wiped himself and the victim off and swam in the family's swimming pool (T 17.2.05, 32-33).
The Pavitts then moved about half a kilometre away in Padstow Heights but the victim still had contact with DP.
Incident 4, Count 9: In 1987, at the end of Year 10 when the victim was 16, he was in the kitchen at home unloading dishes from the dishwashing machine for his mother before she got home from work. He thought that he heard a noise at the front door and looked quickly at the door. He was the only person at home at the time. He then took out perhaps four plates at once to put them away in the cupboard. Suddenly a figure came at him and stuck out his arm, grabbing him on the testicles. The victim saw that it was the Appellant. The victim ‘threw the plates on the floor and yelled and started bawling my eyes out’ and fell to the floor. He heard the Appellant running out of the house. The plates had smashed all over the tiled floor and he had a piece which he started digging into his wrist. He had been expecting two female friends to come over and he heard another knock at the door and it was them. One of the girls consoled him, asking what was wrong. He did not tell her, though, because he did not want to be called a ‘homo' or ‘poofter' at school because of what the Appellant had been doing (T 17.2.05, 36-8).
Further to the reference to ‘the devil’, in re-examination the victim gave evidence at T 2.3.05 at page 13.
Uncharged conduct: On another occasion after the Pavitts had moved house, he remembered an incident that occurred but his memory was not as clear. It occurred in the Appellant's mother's bedroom. The Appellant got some of his mother's moisturiser, which was some sort of pink, floral-smelling moisturiser and rubbed it on the victim's body but it stung (T 17.2.05, 43).
The victim gave evidence that he complained about the Appellant to his school friend MP, childhood friends SD and HR, HR's mother Ellen Joy, his mother, his ex fiancé Kylie Saare and a sexual assault counsellor at Bankstown (T 18.2.05, 2). He spoke with SD on many occasions about the Appellant sexually assaulting and ‘raping’ him (T 18.2.05, 3). He told HR over the telephone that he was scared of the Appellant (T 18.2.05, 4). He told Ellen Joy at her property at Leppington that the Appellant was touching him and doing other things to him and that he was very scared of the Appellant (T 18.2.05, 5). He first spoke to his mother about it when he was in Year 11 and he was 18 years old. She referred him to a counselling service (T 18.2.05, 5-6). He first told Ms Saare when they were both 21 years old in 1994 (T 18.2.05, 5).
He had a telephone conversation with the Appellant when he was in Year 11 and asked the Appellant if he was gay and if this was the reason that the Appellant had done these things to him. The Appellant had replied that he was not gay and not to worry about it (T 18.2.05, 6-8). After he finished school, the victim was working for NSW TAFE at the corner of Hay and Castlereagh Street, Sydney, and had seen the Appellant at the main entry to Central Station at Eddy Avenue on the way to work. The Appellant approached him and asked how he was going, but the victim did not say anything, shrugged and kept on walking because, ‘I didn't want to know him’ (T 18.2.05, 8-9).
He had a further telephone conversation with the Appellant when the Appellant was living in England. He rang the Appellant and asked him if he remembered what he used to do to the victim when the victim was a kid and the Appellant responded, ‘Yes’. The victim told him he had had a lot of problems as a result of what happened, but the Appellant did not really have much to say (T 18.2.05, 9-10). The victim told him about the nervous breakdown he had had while working as a sales executive for a security company and his fears about his relationship with his fiancé and told the Appellant he wanted to get more professional help. He asked the Appellant to pay for it and the Appellant said that he might be able to help him (T 18.2.05, 12-13).
After the victim first contacted the police in 2002, arrangements were made on 3 March 2003 for the victim to telephone the Appellant (who had returned to Australia) and for a tape recording to be made of the conversation (T 18.2.05, 14-15). The tape of the telephone call was admitted as Exhibit F and a transcript of the call was admitted as an aide memoir. At page 5 of the transcript, the victim says, ‘... I want to speak to you about, like, you know, what you did to me when I was younger, because it, it's, it's going to be part of, like, the healing process for me’, and the Appellant responds, ‘Yeah. Sure, sure. Well, do you want me to come out and see you?’ Then at pages 6-7:
V2 [victim]: ... Like, you know what you did to me --
VI [Appellant]: Mmm.
V 1: --- like, you know, when I was younger and that, it sort of made me question my sexuality.
V l: Yeah.
V2: And I had a, like, you know, that's another problem for me. I don't know what I am any more.
V l: Yeah. Yeah.
V2: And, like, you know, I, I don't know, why did you do it to me when I was a kid, Steven?
V1: Well, know you, I, like I said to you, you know, the same thing happened with me and [male first name], you know, we, [he] approached me, and we just mucked around a little bit. I thought well, this is cool, and --
Then at page 9:
V2: Do you feel guilty about what you did to me?
V l: Yes - you --
At page 10:
V2 You, you, but you can help me by telling me why you did it.
V l: It was just a little muck around thing --
V2: What - but what, what was I, just a fuckin' toy?
Vi: No.
V2: Well, why did you do it to me?
V l: I don't --
V2: It wasn't, if … I'd never, I was 10 years old, and you did it to me until I was, like, 15. I, I didn't even have a choice. And now I don't even know what I am.
V l: [Victim's first name], I just don't have any answers for you, mate.
In the Appellant's ERISP conducted later on 3 March 2003 (the edited tape is Exhibit G and the transcript is Exhibit H), the Appellant denied any sexual behaviour towards the victim whatsoever. The interviewing officer referred to the telephone call with the victim earlier that day. The Appellant denied any wrongdoing and said at Q 149 in relation to ‘mucking around’:
What it was along the lines of, just mucking around, that's what all of, you know, he and the brothers, we, when we went swimming sometimes it was just in the nude. You know, it was nothing else more than that, we were just mucking around. So I never did touch him like that.
Cross-examination of the victim
In cross-examination, the victim RA said he had seen about a dozen mental health care professionals over the years from 1999, some of whom prescribed various drugs for him (T 24.2.05, 5-22). He had heard threatening voices, thought clones were going to kill and replace him and his fiancé and he burnt things in their apartment (T 24.2.05, 27-32). He maintained that the Appellant was a demon (T 24.2.05, 32). Apart from a short time working as a horse trail rider, he had not had any paid employment since 1999 (T 24.2.05, 42). In one of his police statements, he said that he believed at the start of the alleged incidents that the Appellant drove a red Toyota Celica and he conceded in cross-examination that he must be wrong about this (T 24.2.05, 70-2). The first vehicle he associated with the Appellant was the red Toyota Celica (T 25.2.05, 17). The victim admitted that he developed a drug problem from the age of 29 or 30 (T 25.2.05, 30), including heroin and cocaine (T 1.3.05, 6) for a period of about six months or less (T 1.3.05, 10). He ended up spending something like $400 a day on illicit drugs (T 1.3.05, 11) and committed several crimes, such as stealing and robbery, resulting in him being sentenced to imprisonment (T 1.3.05, 63-75).
The victim gave conflicting evidence in the current trial and the earlier trial as to whether he was sitting upright on the bed or lying down in the first incident (T 25.2.06, 46-7).
It was put to the victim that the alleged sexual assaults never occurred (T 25.2.06, 48). It was pointed out that, despite him supposedly being in fear of the Appellant, he went back on occasions to the Pavitts' house to see DP (T 25.2.06, 61; T 28.2.06, 2).
In relation to Count 8, the victim said that the Appellant walked naked from his room into the bathroom (at the victim's house) to get moisturiser while the victim waited alone in the room for a minute, although supposedly he was afraid of the Appellant (T 28.2.05, 11-12).
In relation to the uncharged incident at the Appellant's house involving the floral smelling moisturiser, the victim conceded he could not ‘really remember’ about the incident and ‘it's vague to me for some reason’ (T 28.2.05, 51-3). He agreed he was ‘very vague’ about it (T 28.2.05, 55).
During the 1999 telephone call to the UK, the victim agreed that he ‘may have said something to him [the Appellant] about I could go to the police about the matter’ if the Appellant did not put money in his account (T 1.3.05, 30). The Appellant's version of their conversation on the telephone was put to the victim (T 1.3.05, 29-35).
The victim admitted that he looked at and read the notes being written out by the Officer in Charge during the recorded 2003 telephone conversation, such as, ‘Why did you do it to me?’ (T 1.3.05, 48). It was put to him that his brother MA, the Appellant and others skinny-dipped in their pool (T 1.3.05, 58).
Other evidence
The victim's older brother MA gave evidence that he did not know the Appellant very well at all when he was growing up and he did not recall the Appellant ever swimming with him. He did not recall skinny-dipping in the family pool with his male friends (T 3.3.05, 26).
The Officer in Charge, Detective Woodbridge, gave evidence of the taped telephone call with the Appellant, the Appellant's arrest and ERISP interview and also of obtaining RTA records regarding the Appellant's ownership of motor vehicles. The relevance of this evidence was that the victim was mistaken initially as to the colour of the vehicle that the Appellant drove at about the time of the first incident (he thought it was a red vehicle). The Appellant was registered as the owner of a green 1976 Toyota sedan acquired on 22 August 1983 until 12 December 1986 and it was then that he acquired a red 1982 Toyota sedan on 12 December 1986 which he disposed of on 8 November 1989 (Exhibit K). WP's birth certificate showed she was born in 1967 and a child Steven was recorded as being two years old at that time (Exhibit L; T 4.3.05, 15-16). (This made the Appellant approximately six years older than the victim, who was born in 1971.)
As will be referred to below, the victim committed various crimes around 2001 and was imprisoned. Psychiatrist Dr Bruce Westmore gave evidence that he attended on the victim when the victim was in Long Bay Correctional Centre in September 2001, for the purpose of preparing a report for the victim's sentencing proceedings (see below for further details of the victim’s offending). Dr Westmore took a history from the victim including a note that ‘a number of incidents occurred where inappropriate sexual activity was directed towards him between the ages of 11 and 13 by an older male neighbour; no complaints were made’ (T 4.3.05, 41). Dr Westmore gave expert evidence regarding a person's belief of an event occurring in the past, before the onset of a psychosis. He said, ‘If the belief appeared to be reasonable and something that might have occurred, then that would suggest to me that that belief was not arising from their psychosis’ (T 4.3.05, 47). Further, if the person had reported his beliefs to others before the onset of a psychotic episode and that episode had resolved, ‘It would suggest that the statements are not related or unlikely to be related to the psychotic episode’ (T 4.3.05, 56).
There was evidence of complaint from a number of witnesses to whom the complainant reported the sexual conduct of the appellant before the onset of his psychosis.
2. The Appellant's Evidence
The Appellant denied that anything of a sexual nature took place between himself and the victim at any time (T 7.3.05, 25, 29-30, 32, 41, 66). He also relied on his good character (T 7.3.05, 45). The Officer in Charge confirmed during her cross-examination that the Appellant had no convictions in Australia or overseas (T 4.3.05, 35).
The Appellant gave evidence that he was threatened by the victim to put $3000 in his bank account or he would accuse him of sexual assault (T 7.3.05, 60).
The Appellant gave evidence that he was born on 2 December 1964. In 1983 was living in the family house at Roma Avenue, Padstow Heights. He finished school in 1982 and worked for the Associated Newsagents' Coop and for McDonalds in 1983 as well as commencing study with TAFE in a Customs Import and Export course in 1984 (T 7.3.05, 19-20). He began a full-time job with a freight forwarding company, IndoAtlantic, in June 1983, in which he worked 9 am to after 5 pm during the week with about half an hour's travelling time (T 7.3.05, 24). He drove a blue Ford Escort in 1983 and changed to a green Toyota Celica on 22 August 1983 (T 7.3.05, 21). He knew the victim's family, who lived nearby in Villiers Road. He and the neighbourhood kids used to swim in the victim's family pool. This happened when it was particularly hot, and didn't happen that often (T 7.3.05, 22). The Appellant began another full-time job in freight forwarding in December 1984 (T 7.3.05, 25).
The victim came over to their house from time to time to visit his younger sister, DP (T 7.3.05, 27). He did not have a recollection of visiting the victim's house apart from going for a swim (T 7.3.05, 27).
He moved bedrooms in his house in February 1986 after catching glandular fever (T 7.3.05, 29). The bedroom marked by the victim in his evidence was not the Appellant's room at the time and was occupied by his other sister, WP (T 7.3.05, 30).
His mother cleaned the house, including putting the children's clothes away in wardrobes, and the house was very clean. He never had any pornographic homosexual magazines (T 7.3.05, 30).
He took up employment with another freight company in 1985, Flyway International, at Botany and this did not involve him going out to see clients or customers (T 7.3.05, 32). Similarly, his next job with Brambles International Freight was all office work and did not involve seeing clients (T 7.3.05, 33). He attended TAFE in the evenings three days a week (T 7.3.05, 33). The TAFE course continued in 1986 (T 7.3.05, 37).
He changed cars again on 12 December 1986 to the red 1982 Toyota Celica (T 7.3.05, 34-5).
He denied swimming in the victim's pool in 1985 or 1986, because he had a girlfriend at that time and he went to the beach with her. He would not have swum in the victim's pool (T 7.3.05, 37-8).
MA was wrong when he denied that he and the Appellant were mates when they were growing up (T 7.3.05, 38). He and the neighbourhood kids, including MA, ‘did some skinny dipping when we were younger’. This was when the Appellant was only about 13 years old, years before the allegations (T 7.3.05, 38).
He moved with his family to their new property nearby in Bernard Road after the Roma Avenue house was sold in September 1988 (T 7.3.05, 42). In his next job with Unit Load he had a company vehicle but he never visited the victim's house (T 7.3.05, 42). He relocated to Melbourne with work in March 1990 (T 7.3.05, 43). He worked in Melbourne in different jobs until 1997 when he moved to the UK with Qantas (T 7.3.05, 44) and he did not maintain any contact with the victim's family during that time (T 7.3.05, 45). He remained working in the UK until July 2000.
Whilst he was in the UK, he received two telephone calls from a person identifying himself as the victim. The first call was on 23 September 1999 and the second on 27 September 1999. He was able to state the dates because he had found one of his diaries (T 7.3.05, 57). He was under a lot of pressure during the ERISP when he said that he had not received any calls from the victim and he also noted that he said in ERISP that the Olympics were in 2002 instead of 2000 (T 7.3.05, 58). During one of these calls in the UK, he wrote down on a piece of paper the drugs that the victim told him he was taking: heroin, Epilim, Mogodon and Zonax. He later put this piece of paper in his diary. He noted down during the call that the victim asked him for $3000 and made a note of the Commonwealth Bank, but not an identifying bank number (T 7.3.05, 58-9).
The victim told him that he was in a bad situation with drugs (T 7.3.05, 59). The victim said, ‘Put $3000 in my account otherwise I'll accuse you of sexual assault’ (T 7.3.05, 60). The Appellant replied, ‘That's false allegations [first name of victim]. I cannot assist you and don't bother to call me again’ (T 7.3.05, 60). In the second call, the victim said, ‘[Y]ou haven't paid the money into my account yet,’ and the Appellant replied, ‘[T]here is nothing to pay into your account, there is nothing I can do for you, I did not do these things, please don't call me again’ and hung up (T 7.3.05, 61). The victim was ‘very threatening’ on the telephone (T 7.3.05, 61).
The Appellant's next contact with the victim was the recorded telephone call on 3 March 2003. The Appellant had returned to Sydney to care for his ailing father in 2000 (T 7.3.05, 61-2). During the 2003 telephone call the Appellant thought the victim was hysterical and thought he had problems because he said he was psychotic (T 7.3.05, 64). The Appellant's reference in the call, and in the ERISP, to ‘mucking around' was to ‘skinny dipping in the pool when we were younger’ (T 7.3.05, 64). He was never told during the ERISP by the police that the call earlier that day had been recorded; he just thought that the police had been listening in to the call from the questions he was asked (T 7.3.05, 65).
The Appellant stressed in his ERISP that he had never sexually assaulted the victim and that the victim had seemed upset during the recorded telephone conversation earlier that day.
Cross-examination of the Appellant
The Appellant gave evidence and was cross-examined on when he first looked at a diary he said he kept in the UK in 1999, regarding the notes he made of the drugs that the victim told him he was using in one of the calls to the UK in 1999. The Appellant said he could not recall whether the notes he made were in the diary itself or on a piece of paper in the diary (T 7.3.05, 70-3). The diary was produced as Exhibit 9. The Appellant was then cross-examined about when he put the notes in the diary.
He was cross-examined about his response during the recorded telephone conversation in March 2003 when the victim told him he was a heroin addict. The Appellant replied with apparent surprise, ‘Okay, shit’ to hearing that the victim was a heroin addict. This was inconsistent, on the Crown case, with the Appellant's earlier conversation in 1999 when supposedly the victim told him he was in a ‘bad situation' using heroin (T 7.3.05, 77). It should not have been a surprise in 2003 to hear that the victim used heroin if in fact (as the Appellant said had occurred) the victim told him that in the earlier telephone conversation in 1999. Similarly, the Appellant's greeting and pleasantries at the start of the 2003 conversation was inconsistent with his version of the attempted extortion by the victim on the telephone in 1999 and the Appellant supposedly hanging up the phone on the victim in the second telephone call in 1999 (T 7.3.05, 77-8). With respect to the Appellant's explanation of the ‘little muck around thing', the Appellant added in cross-examination, ‘It was flashing and then skinny dipping in the pool. There was no sexual contact at all’ (T 7.3.05, 85).
The Appellant agreed in cross-examination that he had spent time living in each of the three children's bedrooms in his family's house (T 8.3.05, 10).
Other evidence in appellant’s case
The Appellant's mother Anne Pavitt gave evidence that she had never seen any homosexual pornographic material in the Appellant's room or anywhere else in the house when he was growing up (T 8.3.05, 51). The victim had telephoned her in 1999 and asked her for the Appellant's contact number overseas (T 8.3.05, 53).
The Appellant's sister Donna McGuire gave evidence that she saw the victim about once or twice a week outside school hours when they were at school together (T 8.3.05, 69). He had never said anything to her about her brother (T 8.3.05, 72). She rang the victim in 1999 after her mother mentioned the victim's call to her, and the victim also asked her for the Appellant's number but she was on the mobile in the car and didn't have it with her (T 8.3.05, 78).”
Ground 1: that the trial judge erred in admitting into evidence exhibit F, the tape recording of the telephone conversation between the appellant and the complainant.
The appellant complains that the trial judge ought not to have admitted exhibit F as the parts of the taped telephone call upon which the Crown most strongly relied were passages which appeared to have been prompted by the police.
Before the Crown opened to the Jury, counsel for the appellant, Mr Rickard, objected to the admission of the conversation recorded on exhibit F on the basis that it had been obtained improperly, being a functional interrogation of the appellant and, in addition, being an interrogation which took place without the appellant having been cautioned. He submitted it ought to be excluded by virtue of ss 86 and 90 of the Evidence Act 1995. The Crown argued that it was admissible as being a “pretext telephone conversation” of the sort conducted in Queensland and referred to R v Workman [2004] NSWCCA 213; (2004) 60 NSWLR 471. It contended that the trial judge could exercise his discretion pursuant to s 138 of the Evidence Act to admit the conversation even if he thought the circumstances in which it took place were unfair (s 90) or otherwise improper (s 138).
The trial judge ruled exhibit F was admissible. His reasons were short. He said:
“I am of the opinion that the evidence is admissible. I have considered the submissions made by both parties.
I am satisfied that ss 85 or 86 are not applicable in this case. I am satisfied that I have then to turn to the other sections about the admissibility of evidence, namely s 90 and s 137 and s 138 which gave the general rubric whether or not the evidence – its probative value is outweighed by its prejudicial value.
The indictment contains as Mr Rickard has pointed out, contains, as indeed by law it has to, specific crimes that are not canvassed on the whole by the taped conversation nor its transcription, however there is sufficient and indeed corroborative, as the Crown said, will act as corroborative evidence to other evidence, and in fact on count 5 of the indictment and at a time did commit an act of decency upon him, I think there is sufficient in that to be characterised the jury – there is sufficient in the tape and the transcription of the tape, there is sufficient in that for a jury to draw a conclusion that it was an admission.
I do not have to canvass how the jury is going to find that fact, whether or not the words, ‘and we just mucked around a little bit’ is an admission. In my opinion that is a matter for the jury.
In those circumstances I will allow the evidence of the oral or audio tape and the transcription of it.”
After his Honour had so ruled Mr Rickard asked that only the transcript, rather than the tape be before the jury. He contended that the tape was unnecessarily emotive. The Crown offered to edit the tape so that that part which commenced with the appellant saying “just calm yourself down” (p11) to the end would be removed.
When the trial judge indicated he intended to allow the tape to be played as the best evidence, Mr Rickard asked that the whole of the tape be played to the jury, a request to which the trial judge acceded.
The complainant gave brief evidence in chief about the telephone call with the appellant. He was asked about it in cross-examination. He said he became aware the conversation was to take place a few days before it took place. He was asked by the police to think of what he might want to say to the appellant “when and if I did get hold of him”. Before he went to Bankstown Police Station to participate in the conversation he jotted down a few lines on a piece of paper of the topics or questions he thought he might like to speak to the appellant about. He took that piece of paper with him to the police station. He did not think he showed it to the police before the conversation started. He said that before the conversation the police did not suggest anything he should ask the appellant.
Detective Woodbridge was present in the room with the complainant throughout the telephone conversation with the appellant. He said that once the telephone call commenced Detective Woodbridge wrote down notes and placed them in front of him, like “why did you do it to me?” He said she also wrote something of the sort “as to why Pavitt raped you”. He was not sure whether she introduced the word “rape” before it was said in the conversation. He said during the conversation he was asking the appellant “like why did he rape me”.
He said that in the few days before the telephone conversation he had considered that the call was a means by which he hoped the appellant would discuss the allegations he was making against him. He also understood the police were conducting the taped conversation to gather evidence to assist them in prosecuting the appellant.
He said that he also made notes during the course of the telephone conversation. He said Detective Woodbridge kept the pieces of paper he took to the police station and the notes they each made during the telephone conversation. He was cross-examined about evidence he had given in February 2004 concerning the taped conversation in which he had said he had not started to prepare questions or topics of conversation prior to the taped conversation. He agreed that evidence was inconsistent with the evidence he had given that day. He explained the inconsistency by saying he had forgotten he had “just dropped down [sic] a few lines on just a single piece of pad paper”.
Detective Woodbridge gave evidence that she had obtained a warrant to listen to the telephone call made by the complainant, that the telephone conversation was recorded and that she had subsequently created a transcript of the calls. The taped call became exhibit F. Mr Rickard formally objected to its admission recognising he was bound by the trial judge’s earlier ruling. The transcript was also tendered although it is not clear it ultimately became an exhibit. It appears, however, that a copy was given to the jury, as an aide-memoire. (3/3/05 p36.)
Detective Woodbridge gave the following evidence in cross-examination:
“Q. And during the course of that conversation, you wrote out in your handwriting in note form of some type prompts and questions for [the complainant] to ask didn’t you?
A. YesQ. And you placed them in front of [the complainant] while he was talking to Steven Pavitt?
A. They were in between both of us.Q. Yes?
A. We were facing each other and they were in the middle.Q. But you placed them in such a way that [the complainant] could read them while he was still talking to the --
A. He could have, yes.Q. And what you were doing weren’t you was formulating some questions that you wished [the complainant] to ask Steven Pavitt?
A. No.Q. Well there would be no reason for you to write anything on a piece of paper unless you wanted to discuss some questions, surely?
A. Prior to the phone call we had written down prompts and words just to keep the conversation flowing so that it didn’t stop or there were long pauses, just if [the complainant] got stuck, they were just things that he could say to keep the conversation flowing.[At this stage Detective Woodbridge identified two pieces of paper in her writing, one of which was written before the taped telephone conversation (exhibit 4) and one written during the conversation (exhibit 5); she returned some pages which were not in her writing – 4/3/05, p24].
….[Referring to exhibit 4]
Q. And were these preparatory questions that you discussed with [the complainant] before the taped telephone conversation commenced.
A. Yes and his mother Gloria.
……HIS HONOUR; She came into the station?
A. Yes. We were in the meal room at the old police station.RICKARD. And in fairness to you [Gloria] wasn’t in the room when the telephone conversation occurred?
A. No.Q. I’m keeping aside the one that you’ve identified with the asterisks prepared before the taped conversation and returning the two groups, sorry officer, going backwards and forwards, so that you can here familiarise yourself generally with the contents of those two documents and when you’ve looked at those two sets of documents, does that assist your memory in saying whether any question that is written on there was a question prepared by you during the course of the taped telephone conversation?
A. Some of the things don’t even make sense. They’re not even full sentences.Q. That’s what I mean, it’s – what I’m asking is that them not being full sentences which suggest that they were written down or – the contents of those documents were written down while the conversation was occurring between the complainant and Steven Pavitt, wouldn’t it because of the pace of that conversation you were unable to write down fully and completely everything that you might wish to say?
A. I can’t even remember if I was taking notes or if they were questions.Q. So you can’t exclude can you, definitely, that while the taped telephone conversation was occurring, you were formulating questions for [the complainant] to ask Steven Pavitt?
A. There are some questions here yes.Q. You can’t exclude that because of the way the taped telephone conversation was proceeding, that you wished certain questions to be asked of Steven Pavitt by [the complainant] --
A. No.Q. -- so you wrote them down can you?
A. No.Q. You can’t exclude that. That in itself because you may have been writing these questions down, was, in fact you getting someone else to ask your questions, wasn’t it?
A. No.Q. It would be if you can’t exclude it?
A. I couldn’t have asked him to ask half a questions, I didn’t even – some of the things say, ‘I’ll call you if’. I wouldn’t get him to ask that.Q. No, but some of them could have been written by you as prompts to [the complainant] during the taped conversation so that he would ask Steven Pavitt certain questions, that’s so, isn’t it?
A. They could have been written for that, yes.Q. In that circumstances, that meant that you would be using [the complainant] to ask your questions of Steven Pavitt wouldn’t you?
A. I didn’t ask him to ask questions or make him ask the questions.Q. No, but you knew that [the complainant] was here on the telephone beside you talking to Steven Pavitt at his home telephone number and you wished to get certain information. [The complainant] wasn’t getting that information so you were prompting some questions weren’t you?
A. Yeah, he did have prompts, yes.Q. So that you were using the prompts as a means of questioning the accused, Steven Pavitt, having someone else question him on your behalf weren’t you?
A. The prompts weren’t all questions, they were statements as well.Q. Where they were questions, they were questions formulated by you weren’t they?
A. Apart from the document that you have in front of you that was made by [the complainant] and Gloria and myself, if they weren’t me taking notes then they were my questions. **Q. You knew already on 3 March 2003 because [the complainant] had made a statement for the police back in September 2002 which included accusations against Steven Pavitt, that Steven Pavitt clearly was the suspected person?
A. Yes.Q. So you were using this taped conversation to get answers from a suspected person where you were prompting questions weren’t you?
A. I used it to get further evidence.”** It is not clear to what document Detective Woodbridge was referring at this stage. It would appear to be the document the complainant wrote before the call and left with the Police; there is no evidence the complainant’s mother wrote anything before the call. The document written by the complainant was not tendered.
The trial judge explained exhibit 4 to the jury as “the preparatory documents made by [the complainant’s mother and the complainant]. Neither counsel corrected him, but, with respect, his Honour appears to have misunderstood the evidence. Detective Woodbridge had identified the document with asterisks on it as being in her handwriting. Exhibit 4 read:
“* What are you thinking about?
* Do you know how this makes me feel?
* Why me?
* Do you know what it feels like
* Did it ever happen to you?
Trying to find answers” (emphasis in original)
When exhibits 4 and 5 were tendered, the trial judge noted for the record that some of the pages were written on both sides. That must have been a reference to exhibit 5; exhibit 4 is only one page. Exhibit 5 comprised four sheets of paper. They were not paginated. A comparison of exhibit 4 with the transcript of exhibit F indicates that only the last prompt was used. A comparison of exhibit 5 with the transcript of exhibit F reveals parts of the former appear in the latter. We have italicised those parts of exhibit 5 which appear in the transcript, as well as indicating the page of the transcript on which they appear and, where they do not appear in the same terms as in exhibit 5, set out the transcript in bold. In the order in which the pages of exhibit 5 were included in the appeal papers, it read (adding page numbers to indicate on which sheet the writing appeared):
[V1 = the appellant; V2 = the complainant]
(page 1)
“I
widon’t wantyou to call me (page 10, ex F)
I’ll call you if
You can help by telling
me why? (page 10, ex F)
can you see what you’ve
done to me
(page 2)
Mark Wall Police officer – Rodney 21
Drunk + cri??
at Rodney’s
house – K/CroBeen to see psych. that’s why I’m
calling(page 2, Ex F: “V2…and I’ve been seeing counsellors and psychiatrists.
V1 Yeah.
V2 And that, you know, and, that’s why I’m just calling now”)
----------------------------------------------------------- I want to speak to you about
what happened when I was 10
- What you did to me (page 6, ex F)
- I want to know why you did
itwant to speak about what we
did when I was younger
- It’s part of my healing process(page 5, ex F
“V2: Yeah. And, that, like I want to speak to you about, like, you know, what you did to me when I was younger, because it, it’s, it’s going to be part of, like, the healing process for me.”)not ready for that
can we speak about it
now.(page 3)
I want to talk about it now
That’s why I called you
I’m ready to talk(page 11, ex F
I want to talk to you about it now. That’s why I called you. Just, like, I, I’m ready to talk to you now….”)
I wasn’t gay. I was a kid
CALM DOWN (this appears to be a note of what the appellant said).
(page 4)
what happened made me
question my sexuality
(Page 6- 7, ex F
V2:Yeah, like, you know what you did to me ---
V1: Mmm
V2: Like, you know, when I was younger and that, it sort of made me question my sexuality.”)
--------------------------
Why did you do it?
I was a kid
(Page 7, ex F
V2: And, like, you know, I, I don’t know, why did you do it to me when I was a kid Steven?”)
Talk to me !!
You raped me!
(page 7, ex F contains this phrase in two places; we set out the context:
V2: I felt like you raped me.
V1: What’s ---
V2: Steven, are you even listening to me?
V1: Yeah. Are you all right?
V2: No, I’m not all right. I just don’t know why, like, you raped me. Why me? Why me, Steven? Talk to me.
V1: I don’t know [name of V2], it just ---
It also appears on page 9 in the following context:
V2: You don’t, I just don’t know. I was just a kid when you raped me, Steven. And, and I just want to know why you chose me. Was it because I was the closest boy to you and, and, like, I was so close to your family and Donna? Or did you hate me?
V1: No, I didn’t hate you, no.”)
Why me?
Did you enjoy it
*I need to know now
I have to deal with it(page 8, ex F: I need to know. I, I have to deal with it at some stage.”)
Mr Stratton who appeared for the appellant on appeal, but not at trial, argues that the tape recording ought to have been rejected in accordance with R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159. He submits that the complainant was being "used as a puppet by the puppeteer”, that is that he was the agent of the police. The police took advantage of the relationship between the appellant and the complainant, in circumstances where the complainant had previously tried to blackmail him. Next he contended that the police “scripted” what the complainant said during the critical parts of the exhibit F conversation with the consequence that it was the functional equivalent of an interrogation, designed to elicit admissions. He argues that had the police not taken advantage of the subterfuge of using the complainant to elicit material which could arguably amount to admissions, the appellant would not have responded in the same way. He relied, in the latter respect, on the fact that when police formally interviewed the appellant later on the same day, he denied all the offences. He did not suggest that any part of the conversation was unreliable. Indeed he conceded that the conversation had some probative value.
The Crown points out that the principal complaint about exhibit F at the trial seemed to have been, as it was in Swaffield, that the appellant’s right to silence had been impugned. However, it argues, the appellant had not been arrested and the case was still in the investigatory stage. While the police had a statement from the complainant, the offences were between 16 to 20 years old and the complainant’s evidence had no independent support. The appellant had not been questioned and had not declined to answer any questions.
The Crown argued that it was appropriate for police to obtain further evidence. In response to the appellant’s argument by reference to his ERISP, that he would not have responded in the same way had he known he was being taped, the Crown submitted that it was a matter for the jury, if it formed a view that the conversation contained admissions at least of a general nature as to sexual misconduct between the complainant and himself, to conclude that he was lying when he denied any sexual misconduct during his interview with the police. The Crown argued it could not be unfair to demonstrate that when he did not know he was being recorded the appellant would say one thing, but would say another when he knew his answers were being recorded.
While the Crown accepted that the question whether the police assisted in suggesting some things the complainant might say may have been relevant to the question of whether the complainant was acting as an agent of the police, it contended it was not unfair. The complainant had not said anything to the appellant which was misleading or deceptive. The Crown submitted that while the complainant had told the appellant he wanted to know why he had done certain things to him, it was never put to the complainant that that was untrue. It argued that there was nothing in the relationship between the two men which had made the appellant in any way vulnerable or disadvantaged in the course of the conversation. Rather, the Crown pointed out, the appellant had remained calm and in apparent control throughout the conversation. There was no reason why he could not end it and indeed he ultimately did bring it to an end: see R v M [2002] QCA 486; (2002) 135 A Crim R 324.
The Crown also submitted that the appellant had not demonstrated any relevant omission or false statement in the making of the taped conversation. It submitted that even if the trial judge had found the evidence had been obtained improperly, it would have been open to his Honour to have admitted it pursuant to subs 138(3) of the Evidence Act. It argued that the probative value of the evidence was significant and it was of importance in the proceedings because it supported the evidence of the complainant.
Ground 1: consideration
Disposition of ground one turns on whether exhibit F ought to have been excluded. As this case was argued, that question turns on whether it ought to have been excluded by the operation of either s 90 or s 138 of the Evidence Act.
Section 90 provides:
“In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.”
Section 138 provides:
“138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”
It is appropriate to give the Swaffield line of authority close consideration as that case, to some extent, assimilated the common law principles concerning the admissibility of admissions to the Evidence Act: R v Heffernan; R v Peters, NSWCCA, (per Smart J, James and Sperling JJ agreeing, 16 June 1998, unreported, BC9802596). It is necessary, however, not to lose sight of the fact that, in the final analysis, the admissibility issue turns on the terms of the two sections, both of which express the relevant discretion in the widest terms: Swaffield (at [67], [68]) per Toohey, Gaudron and Gummow JJ.
Swaffield was convicted in the District Court of Queensland in December 1995 in relation to three offences, one of which was of wilfully and unlawfully setting fire to the Leichhardt Rowing Club. He had been charged with the offences on 7 September 1993 and had declined to be formally interviewed by the police. In early 1994 police began an undercover operation aimed at the detection of drug suppliers in the areas of Yeppoon and Rockhampton in Queensland. Swaffield was one of the operation's targets. An undercover officer in the drug detection operation held a conversation with Swaffield, during which the former pretended that his brother-in-law "down the coast" was in trouble for burning a car. In conversations between the two men Swaffield made admissions of his involvement in the fire at the Rowing Club, as a consequence of which fresh charges were laid against him. The trial judge refused to exclude evidence of the conversation with the undercover officer, a decision upheld by the Queensland Court of Appeal: see Swaffield at [39] – [44].
Pavic was a suspect in a murder case. The police took him into custody and conducted an interview with him in accordance with Pt 3 Div 1 Subdiv 30A of the Crimes Act 1958 (Vict). During that interview Pavic maintained his right not to answer any questions. At the end of the interview the police officers concerned told Pavic that they believed he had committed the offence of murder. However they did not charge him and he was released from custody. Subsequently police officers took a statement from Clancy, a close friend of Pavic. At the conclusion of the interview the investigating police officers believed they had enough evidence to charge Pavic with the murder. However, they suggested to Clancy that he speak with Pavic on their behalf and that, for the purpose, he carry a recording device. Clancy agreed to the proposal and spoke to Pavic who made admissions of his involvement in the killing. The trial judge refused to exclude the evidence of the conversation with Clancy, a decision which was upheld by the Victorian Court of Appeal: see Swaffield at [45] – [48].
Toohey, Gaudron and Gummow JJ delivered a joint judgment. They discerned from High Court decisions four bases for the rejection of a statement by an accused: whether the confessional statement was voluntary and, if it was, whether as a matter of discretion it would be unfair to the accused to admit the statement (the “unfairness discretion”), whether it should be excluded on considerations of public policy (the “policy discretion”) and whether its prejudicial impact was greater than its probative value (the “unduly prejudicial discretion”): Swaffield (at [50]–[52]). Brennan CJ and Kirby J in their separate judgments also substantially recognised the same discretions.
All members of the court recognised that considerations of voluntariness, reliability, unfairness to the accused and public policy may overlap. Thus, notwithstanding the fact that an admission is found to have been made voluntarily, it may be excluded from evidence because of issues relating to its reliability, the unfairness or policy discretion: see Swaffield (at [74] per Toohey, Gaudron and Gummow JJ; also (at [26] ff) per Brennan CJ; (at [128]) per Kirby J.)
Toohey, Gaudron and Gummow JJ held (at [69] – [70]) that, subject to one qualification, the approach to be adopted when questions arise as to the admission or rejection of confessional material, turns first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards. The qualification was that the decided cases also revealed that one aspect of the unfairness discretion is to protect against forensic disadvantages which might be occasioned by the admission of confessional statements improperly obtained. In their Honours’ view, support for the adoption of such an approach was found in an analysis of recent cases, together with an understanding of the purposes served by the fairness and policy discretions and the rationale for the inadmissibility of non-voluntary confessions.
Toohey, Gaudron and Gummow JJ considered (at [80] ff) the issue of secretly recorded conversations. They referred (at [80]–[82]) with apparent approval to two dissenting judgments of Fitzgerald P in the Queensland Court of Appeal concerning secretly recorded conversations. In each case the conversations took place before the accused had been charged, or cautioned. The conversations were with friends of the accused. Toohey, Gaudron and Gummow JJ noted (at [81]) that in the first case Fitzgerald P emphasised the unfairness of the accused losing her privilege against self-incrimination through trickery. In the second quote their Honours extracted (at [82]) Fitzgerald P said that “the nature of the offence is immaterial to the unfairness discretion”: R v Davidson and Moyle; Ex parte Attorney-General (Q) [1996] 2 QD R 505 at 507.
Their Honours also considered (at [83]) Canadian authorities were instructive in the discretionary area of exclusion relating to covertly recorded conversations, recognising the necessity to bear in mind the existence of the Canadian Charter of Rights and Freedoms and to identify the extent to which any authority turned on its language.
In R v Hebert [1990] 2 SCR 151, after the accused had indicated he did not want to make a statement to the police, he was placed in a cell with an undercover police officer to whom he made statements implicating himself in the robbery with which he had been charged. The Supreme Court of Canada unanimously held that the statements should have been excluded. Toohey, Gaudron and Gummow JJ referred (at [85] – [86]) with approval to the judgment of McLachlin J (with whom Dickson CJ, Lamer, La Forest, L'Heureux-Dubé, Gonthier and Cory JJ agreed). In short, her Honour held that:
“The common law rules related to the right to silence suggest that the scope of the right in the pre-trial detention period must be based on the fundamental concept of the suspect's right to choose whether to speak to the authorities or remain silent.”
and
“When the police use subterfuge to interrogate an accused after he has advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect’s constitutional right to silence: the suspect’s rights are breached because he has been deprived of his choice. However, in the absence of eliciting behaviour on the part of the police, there is no violation of the accused’s right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police.” (emphasis added)
Toohey, Gaudron and Gummow JJ next referred (at [87] ff) to R v Broyles [1991] 3 SCR 595 where the Supreme Court of Canada (La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ) held that evidence of a conversation in which a friend wearing a recording device questioned the accused about the killing of the deceased should be excluded because it was obtained in violation of s 7 of the Charter. The conversation took place after the accused was arrested and cautioned. The friend visited the accused in prison at the request of the police and questioned him about the killing of the deceased. In the Court’s opinion, the friend was an agent of the State. The meeting was set up and facilitated by the police and without their intervention there would have been no conversation. Further, the friend had elicited the accused’s statement “because parts of the conversation were in the nature of an interrogation, not just parts of a conversation which flowed naturally”.
After referring to Broyles, Toohey, Gaudron and Gummow JJ observed (at [89]) that in contrast to the “informed choice spoken of in Canadian cases”, Australian decisions dealing with voluntariness “tended to approach the matter in terms of an immunity from compulsion”, an emphasis they thought was “well placed when voluntariness is in issue, but too narrow when the exercise of discretion is involved.” They said:
“[91] …, the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations.” (emphasis added).
Kirby J (at [130] – [131]) also accepted that s 90 reflects the common law unfairness discretion, one he regarded as “broad enough to adapt to changing circumstances as well as evolving community values”. His Honour (at [153] – [155]) approved of a test of admissibility of covertly recorded conversations with the accused which included determining whether the conduct of the police and/or the other party to the conversation causally led to the making of the inculpatory statements. His Honour noted (at [153]) that Canadian authorities did not draw an “automatic distinction between confessions to an undercover police officer and those to a friend or acquaintance.” He referred to the concept of elicitation articulated in Hebert, then cited the passage from Broyles (at 611) upon which the appellant relies in which the Court said that admissibility turned on “whether the relevant parts of the conversation were the functional equivalent of an interrogation” and, too, required consideration of the “the nature of the relationship between the state agent and the accused”. He then said (footnotes omitted):
“[155] I agree in the approach expressed by the Supreme Court of Canada. I do not consider that it is derived from the Charter so as to make it inapplicable to analogous circumstances in Australia. The test propounded is consistent with the general approach which our law has taken towards deception by law enforcement officials. Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest. There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority. Such facilities must be employed by any modern police service. The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent. Or it will be crossed where police have exploited any special characteristics of the relationship between the suspect and their agent so as to extract a statement which would not otherwise have been made.” (emphasis added)
In the case of Swaffield, Toohey, Gaudron and Gummow JJ held that the secretly recorded admissions he made (having earlier declined to answer questions during a formal police interview) to an undercover police officer were properly excluded. Nothing the undercover police officer did in relation to his conversation with Swaffield was illegal. However, their Honours considered there was the broader question of whether what he did was in violation of Swaffield's right to choose whether or not to speak to the police. There was also the question whether there had been a breach of the Judges' Rules, r 2 of which requires a police officer who has made up his mind to charge a person with any crime to caution that person before asking any questions. Their Honours concluded that the police officer had made up his mind to charge Swaffield, he having been charged well before the conversation with the undercover police officer, a charge which had not proceeded. The police officer did not caution Swaffield before the conversation. That fact alone did not dictate exclusion of the conversation. Rather, the appropriate test should be applied “by reference to Swaffield's right to choose whether or not to speak to the police”. Their Honours referred to R v Hebert and concluded that the Canadian Supreme Court “regards the use of a subterfuge to obtain a statement as likely to be in violation of a choice whether or not to speak but even then would treat a quite unelicited admission as not calling for the exercise of the discretion to exclude”. In their Honours’ view, Swaffield’s admissions were elicited by an undercover police officer, in clear breach of his right to choose whether or not to speak, and were inadmissible: see Swaffield at [93] – [98].
The nature of the Swaffield conversations can be seen from Swaffield v R (1996) 88 A Crim R 98 at 108 – 109. Kirby J (at [165]) concluded from the transcripts of the conversations that the undercover police officer:
“… did not speak to the accused as an acquaintance might have done, neutrally or indifferently. Instead, by his questions, he actively sought to elicit critical information -- such that the exchange is properly to be characterised as akin to a police interrogation. Such an interrogation by an undercover police officer unfairly derogated from Mr Swaffield's free choice to speak or be silent.”
Brennan CJ concluded (at [34]) that there was much to be said both for the view the Swaffield conversations ought to have been excluded because they infringed the public interest in ensuring that the police did not adopt tactics designed to avoid the limitations on their inquisitorial functions that the courts regard as appropriate in a free society and the view that there was a public interest in having Swaffield's admissions available to the Court on his trial for arson. He concluded that when the question touched the standards and methods of police investigation in a particular case, it was undesirable for the High Court to intervene except in cases where the decision of the Court below had proceeded on an erroneous principle or was otherwise manifestly wrong. He concluded that that condition was not satisfied in Swaffield's case.
Pavic’s inculpatory statements were made after his friend, Clancy, suggested he himself was under suspicion and might be charged with murdering the deceased. The terms of the conversation can be seen from Kirby J’s judgment (at [158]) and from R v Pavic (Supreme Court of Victoria, Court of Appeal, unreported, 19 December 1996). The majority (Kirby J dissenting) held that a tape recording of admissions made by Pavic in the conversation with Clancy, which Clancy taped on behalf of the police after Pavic had refused to attend a police interview, was properly admitted. Toohey, Gaudron and Gummow JJ concluded (at [100]) that Clancy was an agent of the state as he spoke with Pavic at the request of the police who equipped him with a recording device, but (at [101] – [102]) that the admissions were not elicited by Clancy’s misleading statement that he feared he would be charged with murder. Brennan CJ said (footnotes omitted):
“[35] In Pavic’s case, the confessional statements were made to Clancy whom Pavic knew as a friend. Clancy was not a police officer or other person in authority over Pavic. There was no impropriety in the police obtaining Clancy's consent to the recording by Clancy of his intended conversation with Pavic. A serious crime had been committed and the means adopted for its solution and for the securing of evidence against the prime suspect were quite legitimate. The investigation of crime is not a game governed by a sportsman’s code of fair play. Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity ‘to invent plausible falsehoods’.
[36] The fact that Clancy was regarded as trustworthy by Pavic is an indicator of the reliability of the admissions made to Clancy. There was no public interest to be served by rejecting those admissions.”
Notwithstanding the fact the conversation between Clancy and Pavic included “a number of leading questions, plainly designed to get Mr Pavic to implicate himself in specific ways”, Kirby J (at [160]) considered “it was arguable that the proper characterisation of what occurred is that the inculpatory parts of the conversation were not a functional interrogation”. Nevertheless he concluded the conversations should have been excluded because of the second Broyles factor, the nature of the relationship between the state agent and the accused. In his view (at [160] - [161]), the police had:
“… exploited the relationship between the two close friends in order to extract the statements from Mr Pavic which they needed….
161 These were not conversationalists who had the relationship of two prisoners in a common cell. They were not new acquaintances engaging in conversation in a social setting. They were close friends, one of whom had been led to believe that he was a suspect and who was motivated to prove his innocence by obtaining for the police as many inculpatory admissions from the other as repeated expressions of anxiety for his own situation could elicit. The police did not remove the fears of Mr Clancy. They sent him to conduct the recorded conversation, counting on those fears. They relied, in the language of Broyles, on the relationship between the two men. They would have anticipated that Mr Clancy, as their agent, would set out to exploit the special characteristics of his relationship with Mr Pavic so as to secure inculpatory statements from him. They were not disappointed. They relied on the association of trust between the two men. Because of the protested fears of Mr Clancy, they could have expected that Mr Pavic, as a close friend, would feel obligated or vulnerable. They were not disappointed. The line of questioning which Mr Clancy pursued was clearly directed to bring about the situation where Mr Pavic would be more likely to talk. By the tests in Broyles, these tactics crossed the forbidden line.”
Swaffield did not explore the question when a person might be regarded as an agent of the state for the purpose of what, for convenience, we will call the Broyles test.It is helpful, therefore, to return to the consideration in Broyles of the relationship between the suspect and the other participant in the conversation. Iacobucci J said:
“27 It is clear from Hebert, supra, that the purpose of the right to silence is to prevent the use of state power to subvert the right of an accused to choose whether or not to speak to the authorities. Where the informer who allegedly acted to subvert the right to silence of the accused is not obviously a state agent, the analysis will necessarily focus not only on the relationship between the informer and the accused, but also on the relationship between the informer and the state. The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required. First, as a threshold question, was the evidence obtained by an agent of the state? Second, was the evidence elicited? Only if the answer to both questions is in the affirmative will there be a violation of the right to silence in s. 7.”
As to the question whether an informer was a state agent, he said:
“30 In determining whether or not the informer is a state agent, it is appropriate to focus on the effect of the relationship between the informer and the authorities on the particular exchange or contact with the accused. A relationship between the informer and the state is relevant for the purposes of s 7 only if it affects the circumstances surrounding the making of the impugned statement. A relationship between the informer and the authorities which develops after the statement is made, or which in no way affects the exchange between the informer and the accused, will not make the informer a state agent for the purposes of the exchange in question. Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange. I would accordingly adopt the following simple test: would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?
31 If this test is applied to a conversation between a police officer and a suspect in custody, it is clear that the conversation would not have taken place but for the intervention of the officer. If it is applied to a conversation with a cell mate who has no contact with the authorities until after the conversation is concluded, it is equally clear that the actions of the authorities had no effect on the conversation, and that there would be no violation of the s 7 right to silence. If, however, the cell mate spoke with the authorities before the conversation took place, then the question will be whether the conversation would have occurred or would have taken the same course had the cell mate had no contact with the authorities.”
Turning to the issue of elicitation, Iacobucci J said:
“37 In my view, it is difficult to give a short and precise meaning of elicitation but rather one should look to a series of factors to decide the issue. These factors test the relationship between the state agent and the accused so as to answer this question: considering all the circumstances of the exchange between the accused and the state agent, is there a causal link between the conduct of the state agent and the making of the statement by the accused? For convenience, I arrange these factors into two groups. This list of factors is not exhaustive, nor will the answer to any one question necessarily be dispositive.
38 The first set of factors concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.
39 The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?
40 In considering whether the statement in question was elicited, evidence of the instructions given to the state agent for the conduct of the conversation may be important.”
Kirby J approved paragraphs [38] – [39] in Swaffield (at 154] – [155]).
Iacobucci J concluded (at [41]) that the informer in Broyles was an agent of the state because the meeting was set up and facilitated by the police. The informer was able to have an “open visit” with the appellant, which made possible a free-ranging conversation, only because of the intervention of the police. And the informer admitted he was not frightened during his visit with the appellant “because it had been set up by the police”. Further the authorities effectively instructed the informer to elicit information about the death being investigated. As the conversations his Honour set out indicate, the police informed the informer they wanted him to speak to the appellant because the latter “wasn’t saying anything”. His Honour concluded that if the authorities had not intervened, the conversation would either not have occurred at all, or else would have taken a materially different course. On that basis he concluded that for the purposes of the right to silence in s 7 of the Charter, the informer was an agent of the state. He also concluded (at [42]) that the informer elicited the statements in question from the appellant because he did not allow the conversation to flow naturally but directed it to those areas where he knew the police needed information. By way of example, the conversation included:
“JAMES Like I, I already said stuff and whatnot. There's really no more that I can say.
TODD You could admit to them that you killed her.
JAMES But I didn't.
TODD Are you sure?
JAMES Yeah.”
Swaffield was considered in R v Carter [2000] VSCA 6; (2000) 1 VR 175 (special leave refused: (2001) 1 Leg Rep C3). The accused was charged with murder. Evidence was admitted against her of two secretly recorded conversations she had with relatives of the deceased with whom she was acquainted. They were registered police informers. The accused had previously refused to assist the police in their investigation into the deceased’s disappearance. She was unaware of the relationship between the informers and the deceased. In the first conversation the accused admitted participating in killing the deceased, including strangling her, and disposing of the body. In the second conversation, which took place the next day while she took the informers to where the body had been left, the accused gave an account of the killing and disposal which differed in some respects from the first account.
Charles JA (with whom Chernov JA and Hedigan AJA agreed) held that the evidence of the secretly recorded conversations was properly admitted. He said:
“[51] Mr Grace's argument that the first Eyles tape amounted to an interrogation of the applicant by the Eyleses was supported by a detailed examination of the contents of the transcript. I accept that the conversation would not have occurred without the Eyleses having engaged in subterfuge, or significantly misleading the applicant into believing that they were going to assist her to escape detection by the police in relation to her involvement in the death of the deceased. I have no doubt that they sought to exploit their relationship with the applicant and to some extent manipulated her in the process of making admissions. But in my view this was no more than was done by Clancy in obtaining admissions from Pavic, in a case where an investigation of a murder was plainly in progress and Pavic was suspected of the crime. There can be no question that the applicant’s admissions were made voluntarily. Mr Grace argued that some of the admissions were not reliable, in that the applicant was ‘big-noting’ herself in some of her assertions. But I see no reason to doubt the truth of the substance of her admissions, and they were confirmed by the later discovery of the deceased’s body, at the place to which the Eyleses were taken by the applicant.” (emphasis added)
By the time of the second conversation with the accused, the police had evidence to support the suspicion that the deceased had been killed and the accused was a suspect. She was seeking the help of the Eylses to destroy the remaining evidence. The trial judge admitted the second conversation notwithstanding that it involved subterfuge on the Eylses’ part because, in his view, it did not amount to the eliciting by interrogation of information in the sense used by the High Court in Swaffield, but, rather, was “a continuing discussion and an attempt to follow up upon what the accused, Carter, had said and to have the body shown to them”: see Carter (at [52]). Charles JA agreed that the second conversation was properly admitted. In his view (at [55]) there was no unfairness to the applicant if the tapes were admitted nor was the evidence obtained at a price that was unacceptable having regard to prevailing community standards.
Swaffield, Hebert, Broyles and Carter all concerned conversations between the accused and a third party to the crime being investigated. Swaffield and Broyles have also been considered in cases in which the suspect had a conversation with the complainant.
In R v M [2002] QCA 486; (2002) 135 A Crim R 324 the appellant was convicted on six counts of indecently dealing with a child under the age of 12 years in his care. He was the complainant's step grandfather. She was six or seven years old at the time of the offences but 16 at the time of trial. Part of the evidence against the appellant consisted of admissions he made when telephoned by the complainant from a police station. At the time of the conversation the appellant had not been charged and the police had not interviewed him. He had not declined to speak of the alleged events to any person in authority. The taping did not contravene any provision of the law: see [6]. The appellant’s counsel argued unsuccessfully at trial that in telephoning the appellant the complainant was effectively acting on behalf of the police and that because of the importunate character of her approach, which it was submitted involved badgering and hectoring, application of the principles in Swaffield should have resulted in the exclusion of the evidence: see [8]. He repeated these arguments on appeal. The appeal was dismissed.
It is unnecessary to set out the conversation in detail. It is sufficient to note that (see [4]) the admission on which the Crown concentrated was contained in a passage in which the complainant said to the suspect “I just want to know why you did it”, pressed him to answer when he prevaricated and put to him the actual act she alleged he had perpetrated.
De Jersey CJ (with whom Davies JA and Mullins J agreed) concluded (at [10]), applying Swaffield, that the complainant would be regarded as an agent of the State, in that she spoke with the appellant at the insistence of the police. He also accepted (at [12]) from reading the transcript of the conversation, that it was “importunate, with the complainant asking the appellant over and over again why he did certain things to her”. Nevertheless, after listening to the tape his Honour concluded (at [13] – [16]):
“[13] Listening to the tape, one reaches the view that the conversation was very much an exchange between a comparatively immature adolescent girl, tearful for much of it, and her mature and confident grandfather.
[14] The pathetic tone of the child's questioning and comments is plaintive, not overbearing. There were many occasions on which the appellant could have withdrawn from the conversation had he wished. Indeed, he threatened to do so at one stage unless the complainant changed the subject but he remained on the line and the exchange continued.
[15] It is the substantial age difference and contrasting levels of maturity, the apparent self-possession of the older man faced with the emotional and tearful questioning of the child which, notwithstanding the importunate character of that questioning, do in my view prevent a conclusion that the exchange should have been excluded because it amounted to an interrogation or elicitation.
[16] Had the appellant felt under undue pressure he could, as I say, have withdrawn. That he did not do so itself suggests that the situation was not from his point of view unfair. In my view it was not, in terms of Broyles, ‘the functional equivalent of an interrogation’.”
The Chief Justice also concluded that in so far as the appellant's responses were incriminating, they were of a high level of reliability: at [18].
In R v Burt [1998] QCA 423; [2000] 1 Qd R 28 (to which de Jersey CJ referred with approval in R v M), the complainant telephoned her father who she alleged had sexually assaulted her when she was a child. She made the call by arrangement with the police who recorded it. Such conversations are referred to in Queensland as “pretext” conversations. Again, it is unnecessary to repeat the conversation. It is relevant to note, however, that it was a long conversation in which the complainant repeatedly put to her father explicit details of what she alleged he had done to her. The appellant contended that the “pretext” conversation ought to have been excluded as involuntary and/or unfair in circumstances where admissions were obtained by inducement and undue insistence and pressure; and ought to have been excluded on the further ground that it contained persistent allegations of improper conduct and denials in circumstances where the repeated allegations would be over-emphasised to the jury and thus be unfair.
The Queensland Court of Appeal concluded the conversation was properly admitted.
White J (with whom McPherson and Thomas JJA agreed) observed (at [33]) that the “clear flavour of the conversations is at least of equality between the two” and “[t]here was no suggestion by the appellant when he gave evidence that any pressure by the complainant caused him to say what he did”.
He noted (at [48]), applying R v Jeffries (1947) 47 SR (NSW) 284 (at 311–314), that “it was a question of degree in each case and for the presiding judge to determine, in the light of all the circumstances, whether the statements or admissions of the accused had been extracted from him under conditions which rendered it unjust to allow his own words to be given in evidence against him”. In his Honour’s view (at [51]) there was nothing improper involved in the complainant’s insistence in the recorded conversation on the appellant’s wrongdoing and no unfairness was accorded to the appellant in admitting the conversation.
Thomas JA also considered whether Swaffield warranted the exclusion of the evidence. He said;
“Unfair trickery
[10] It is very difficult to be critical of the police conduct in this case. The complainant had come to them, and part of her story was that her father had made limited oral admissions to her over the phone. They gave to her reasonable and proper advice, calculated to obtain reliable evidence for the court. Uncorroborated oral statements alleged by one person and denied by another are a far less satisfactory source of evidence than something that is recorded. I see nothing improper in the police advising this complainant to try to replicate the type of admission that she claimed had already been made. In such a situation a search for corroboration is an important part of the police function, and they ought not necessarily take at face value what a complainant says if reasonable means exist of checking the accuracy of what she claims.
[11] When one party knows that a conversation is being recorded and the other does not there is an imbalance and a potential unfairness, though no greater than any case where one party to a conversation knows that legal proceedings are imminent and the other does not. The benefit of the recording is that the jury has an accurate record to evaluate with the benefit of a full overview of the situation, including any manipulative conduct of the complainant.
[12] This was a real conversation between two citizens who had a particular relationship with one another. The conversation was not concerned with any issue whether the appellant was choosing whether or not to speak to the police and did not infringe his right of choice in that matter. There is little doubt in the present case that the complainant asked questions of the appellant which she hoped would produce admissions supporting the complaint that she had made. In that sense there was elicitation which is a factor that is given considerable weight in Swaffield. However, I find it difficult to characterise this occasion as an unfair trick, and equally difficult to regard the complainant as a ‘state agent’. In Swaffield Kirby J regarded the critical question as ‘whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value’. His Honour continued:
‘In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect’s right to exercise a free choice to speak or to be silent.’
[13] I would not regard this particular exercise as unfair or improper. The police advice to the complainant to have a further conversation with her father and their recording of it were appropriate responses to the situation. The relevant acts in the present case clearly falls within the broad category of cases recognised by Kirby J. as ‘acceptable deception’ by law enforcement officials.
‘Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest (Ridgeway v The Queen (1995) 184 CLR 19at 37; R v Christou [1992] QB 979 at 989; cf Rothman v. The Queen [1981] 1 SCR 640 at 697). There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority (cf Ousley v The Queen (1997) 71 ALJR 1548). Such facilities must be employed by any modern police service’.” (emphasis added)
It will be seen that the conversation demonstrates a number of problems. Amongst these are the frequent multiple questions, the interruptions of the appellant when he attempts to respond, the questions that assume assent or agreement to facts not assented or agreed to, the lies as to what instigated the conversation. Nor was it suggested in the evidence that any misconduct occurred when the complainant was ten years of age. Moreover, as I discuss later, the complainant is, for much of the conversation – and certainly those parts where he puts the most serious allegations – either crying or speaking with intense emotional feeling. This aspect of the conversation gave the allegations a persuasive character which almost certainly would have powerfully swayed the jury. However, it arose out of a confrontation between the alleged victim and alleged perpetrator, contrived by the police. That could not occur, of course, in a trial where direct questioning of this kind would not be permitted in any circumstances. Had the questioning occurred between, say an undercover police officer or a friend of the alleged perpetrator, it would not have had this character and may far closely have mirrored questions that might properly have been asked in a formal situation. I discuss this troubling aspect of the evidence below when considering R v Swaffield; R v Pavic [1998] HVA1; (1998) 192 CLR 159.
The complainant gave evidence that Detective Woodbridge was present during the conversation and had provided notes suggesting what he should say, giving as an example, “Why did you do this to me”. In cross-examination, Detective Woodbridge said that she wrote out prompts in note form for the complainant to ask. These notes contained the following phrases –
What are you thinking about?
Do you know how this makes me feel?
Why me?
Do you know what it feels like?
Did it ever happen to you?
Trying to find answers.
The officer said that the purpose of these notes was to provide a prompt to keep the conversation flowing if the complainant “got stuck”. Whatever the purpose, these questions all assumed the commission of the acts as to which admissions were being sought. I would not accept that this was accidental. Still less because, as will have been observed, the questions were in substance all of this character. In the words of the cliché, they were of the kind exemplified by, “when did you stop beating your wife?”
It appears that during the conversation the officer made notes of the following –
I don’t want you to call me I’ll call you if you can help by telling me why?
Can you see what you’ve done to me?
Been to see psych that’s why I’m calling.
I want to speak to you about what happened when I was ten.
What you did to me.
I want to know why you did it?
I want to speak about what I did when we I was younger
It is part of my healing process.
Not ready for that can we speak about it now?
I want to talk about it now. That’s why I called you.
I’m ready to talk
I wasn’t gay. I was a kid.
What happened made me question my sexuality
Why did you do it?
I was a kid. Talk to me!!
You raped me!
Why me?
Did you enjoy it?
I need to know now; I have to deal with it.
The officer said that some of these phrases were notes of what the complainant had said and some were prompts but he could not recall which of them fell into which category. It was submitted that many, if not all, of the phrases were in the form of prompts rather than mere notes of what had been said. In this Court, the crown prosecutor fairly concede that that some of the questions were prompted by what the officer had written but contended that they were the sort of questions that might naturally occur in a conversation “between two people like this”. My reading of the notes and comparing them with the flow of the conversations has led me to conclude that in all probability much of them were prompts rather than notes of what complainant was saying. None of the responses of the appellant were noted. The fact that there was no accurate note taken of the extent to which the police officer intervened is another troubling aspect of this evidence.
The appellant was arrested on 3 March 2003 and, in his videotaped interview with police denied any sexual behaviour towards the complainant whatsoever. He said that the complainant had demanded that he place $3000 in his bank account or he would accuse him of sexual assault. He said that he replied, “That’s a false allegation...I cannot assist you and don’t bother to call me again”. He said that the complainant called him again complaining that the money had not been paid into his account and the appellant had said to him, “[T]here is nothing to pay into your account, there’s nothing I can do for you, I did not do these things, please don’t call me again” and hung up. He said that the complainant was “very threatening” on the telephone. The appellant said that his next contact with the complainant was the recorded telephone call on 3 March 2003. He said that he thought that the complainant was hysterical and had problems because he said he was psychotic. He had told police in his interview in relation to “mucking around” –
“What it was, along the lines of, just mucking around, that’s what all of, you know, he and the brothers, we, when we went swimming sometimes it was just in the nude. You know, it was nothing else more than that, we were just mucking around. So I never did touch him like that.”
He essentially repeated this explanation in his evidence.
In other evidence, the complainant’s ex fiancé said that the complainant had told her that he rang the appellant in the UK because he “wanted him to pay for what he’d done to him” and he asked the appellant for money.
Discussion
It is obvious that the conversation was instigated by the police officer. It is also obvious that the reason for instigating it was the hope that the appellant would make admissions that it was believed he was unlikely to make if he was being questioned by a police officer. The answers were equivocal. There was some relationship between some of the allegations made by the complainant and the charges – for example “I felt like you raped me” (to which the appellant said “What’s ---“) which was repeated shortly after immediately followed by an allegation “You made me suck, like, suck you off and everything and I was only ten” to which the appellant simply did not respond. Of considerable forensic force was the failure of the appellant to deny the allegations made by the complainant, which denial would probably have been the expected response of someone to untrue allegations of that kind.
I do not think that it could be held otherwise but that the complainant was, in this conversation, acting as the agent of the police. In this Court, counsel for the Crown conceded as much. The focus of the appellant’s argument in relation to admissibility is the significance of this fact.
It is also submitted on behalf of the appellant that the conversation between the appellant and the complainant was the functional equivalent of an interrogation. The questions largely comprised demands that the appellant should explain his commission of serious sexual misconduct. It was designed to elicit admissions. As I have mentioned, the questions assumed improprieties had been committed which it was sought to have the appellant admit. The language used was calculated to place maximum moral pressure on the appellant to explain his misconduct (and thus to admit its occurrence) and, when he plainly wished not to answer or to avoid answering directly, the complainant persisted even more insistently and with rising emotion on a response. The prosecution agrees that the complainant’s questions were asked with the view to elicit admissions if possible and submits that, even if the police suggested some of the things that the complainant might say, this was not unfair.
In my view, the complainant should be considered to have been acting as the agent of the police and the conversation as the functional equivalent of an interrogation. In reaching this conclusion, I have left out of account the conclusion stated above that probably much of the conversation was prompted by the police officer. If that conclusion be taken into account, the character of the conversation as an interrogation is demonstrated beyond question. It is evident from the transcript that the complainant used lies for the purpose of seeking the appellant’s response. These related to the complainant’s motives for making the call and the therapeutic reason for which the explanations were said to be wanted.The use of lies raises for consideration the application of s 138(2) of the Evidence Act 1995. These lies, it seems clear, were “likely to cause the person who was being questioned to make an admission”. Hence evidence of the appellant’s admissions are “taken to have been obtained improperly”. The exercise of the court’s discretion as to admission requires the balancing of the considerations specified in s 138(1). In the circumstances here, however, the exercise outlined in s 138 does not add to the considerations that arise under ss 90 and 137 and I do not think it is necessary for present purposes to give it separate consideration.
I now turn to consider the application of R v Swaffield; R v Pavic, [to which I now turn] to the present circumstances. Swaffield had been charged with a number of offences and had declined to be interviewed by police about them. When committal proceedings were convened, no evidence was offered and Swaffield was discharged. However, he was one of the targets of a subsequent undercover operation and he spoke to an undercover police officer about matters which formed the basis for one of the charges in respect of which no evidence had been offered and he made certain admissions. Fresh charges were brought against Swaffield in reliance on those admissions which were tendered on his trial. Of course, the undercover police officer had not cautioned Swaffield and objection was taken that, in effect, Swaffield’s right to silence had been overcome by subterfuge. So far as Pavic was concerned, he had declined to answer questions about a murder of which he was suspected and was released from custody. Shortly after his release, police obtained a statement from one Clancy, a close friend of Pavic’s, which led them to believe that they had sufficient evidence to charge Pavic with murder. However, to strengthen the case, Clancy was induced by the police to speak with Pavic about the crime and record the conversation on a concealed device. In the result, Pavic made admissions about his involvement in the murder and the prosecution adduced the conversations at his trial.
Although the Court was divided as to the disposition of the appeal in Pavic (Kirby J dissented), it seems that the whole Court accepted that the appropriate approach was “to think of admissibility as turning first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards” (see 192 CLR at 194-195 per Toohey, Gaudron and Gummow JJ, Brennan CJ at 181-182, Kirby J at 208).
Dealing with the right to silence and the nature of police questioning, Brennan CJ said (192 CLR at 185)-
“There is a public interest in ensuring that the police do not adopt tactics that are designed simply to avoid the limitations on their inquisitorial functions that the courts regard as appropriate in a free society. In the particular circumstances [of Swaffield’s case], the majority of the Court of Appeal gave great weight to that interest. Against that interest, the public interest in having Swaffield's admissions available to the Court on his trial for arson has to be weighed. Pincus JA dissented. There is much to be said for either view. This Court can determine which view ought to have prevailed but when the question touches the standards and methods of police investigation in a particular case, it is undesirable for this Court to intervene except in cases where the decision of the Court below has proceeded on an erroneous principle or is otherwise manifestly wrong. In Swaffield's case, that condition is not satisfied. I would therefore dismiss the appeal in that case.
In Pavic's case, the confessional statements were made to Clancy whom Pavic knew as a friend. Clancy was not a police officer or other person in authority over Pavic. There was no impropriety in the police obtaining Clancy's consent to the recording by Clancy of his intended conversation with Pavic. A serious crime had been committed and the means adopted for its solution and for the securing of evidence against the prime suspect were quite legitimate. The investigation of crime is not a game governed by a sportsman's code of fair play…Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity ‘to invent plausible falsehoods’…
The fact that Clancy was regarded as trustworthy by Pavic is an indicator of the reliability of the admissions made to Clancy. There was no public interest to be served by rejecting those admissions….”
It will be seen that the circumstances here are placed the case somewhere between the cases of Swaffield and Pavic. Here, unlike in Swaffield’s case, there was no interrogation by an undercover police officer. On the other hand, significant questions were put by the complainant at the behest and some probably in the language of the police officer of whom, as I have said, he was the agent. Comparing this to Pavic’s case, the complainant certainly was not in a position of authority over the appellant. On the other hand, he was acting on behalf of a person who was a police officer investigating a suspected offence. Furthermore, the questions were not questions which it would be proper for a police officer to ask of a suspect.
It may be a significant distinction of this case from those both of Swaffield and Pavic that each of those offenders had already declined to speak with police when they came to make the impugned admissions. The prosecution submitted in this Court that the police had no independent evidence supporting the allegations of the complainant and the case was at the investigatory stage. This is not a material distinction in my view. The crucial issue in this respect is, to use the language of Brennan CJ quoted above, the “public interest in ensuring that the police do not adopt tactics that are designed simply to avoid the limitations on their inquisitorial functions that the courts regard as appropriate in a free society”. Those limitations apply as much to the investigatory stage of an inquiry in respect of questioning a suspect as they do after the suspect has been arrested and charged. Nor, to my mind, is it particularly material that the appellant had already exercised his prerogative of silence. It can scarcely be doubted that the police thought he might well do so and it was to forestall this possibility that the conversation with the complainant was instigated.
Returning to the approach mentioned at the beginning of this discussion, it can be noted at the outset that there is no suggestion here that the admissions (assuming them to be so) were made involuntarily. Each of the second, third and fourth reasons for excluding an accused’s statement assume that it was made voluntarily. Dealing with each of them, Toohey, Gaudron and Gummow JJ said (192 CLR at 189)-
“The second basis is that it would be unfair to the accused to admit the statement. The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person. The third basis focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused. The purpose of the discretion which is brought to bear with that emphasis is the protection of the public interest. The fourth basis focuses on the probative value of the statement, there being a power, usually referred to as a discretion, to reject evidence the prejudicial impact of which is greater than its probative value. The purpose of that power or discretion is to guard against a miscarriage of justice.”
Their Honours then go on to discuss each of these matters extensively and I do not propose to set out that discussion in this judgment. So far as unfairness is concerned, their Honours make the point that the notion “necessarily lacks precision…[as] it involves an evaluation of circumstances.” The question, however, “is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him…” (citing Van der Meer v The Queen (1988) 62 ALJR 656 at 666). As it is the fairness of the trial which is in issue, “the unfairness discretion overlaps with the power or discretion to reject evidence that is more prejudicial than probative”. Their Honours point out that although “unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone”, citing as an example that “no confession might have been made at all, had the police investigation been properly conducted” (see 192 CLR at 189). Dealing with the policy discretion, their Honours point out there is a discretion to exclude confessional evidence even where no unfairness to the accused has been demonstrated, as shown in R v Ireland [1970] HCA 21; (1970) 126 CLR 321, Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, Foster v The Queen [1992] HCA 63; (1993) 67 ALJR 550 and perhaps most exhaustively in Ridgeway v R [1994] HCA 33; (1995) 184 CLR 19. Lastly, there is the well known discretion to exclude evidence where its prejudicial effect exceeds its probative value, well known to the common law and now encapsulated in s 135 of the Evidence Act 1995.
Dealing with the particular issues arising where conversations are secretly recorded (192 CLR at 199ff), their Honours referred with approval to Canadian authority. The first of these is R v Hebert [1990] 2 SCR 151 where a statement made by the accused after he had obtained legal advice and indicated to police he did not wish to make a statement were procured by an undercover police officer who was placed in his cell. The following passages from the judgment of McLachlin J (with which Dickson CJ, Lamer, La Forest, L’Heureux-Dube, Gonthier and Cory JJ concurred) were cited by Toohey, Gaudron and Gummow JJ with approval (192 CLR at 200) –
“Dealing with the use of use of undercover agents, McLachlin J drew a distinction between observing a suspect and actively eliciting information in violation of the suspect’s choice to remain silent. She said:
‘When the police used subterfuge to interrogate an accused after he had advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect’s constitutional right to silence: the suspect’s rights are breached because he has been deprived of his choice. However, in the absence of 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 a suspect speaks, it is by his or her own choice, and he or she must have been taken to have accepted the risk that the recipient may inform the police.’
In R v Broyles [1991] 3 SCR 595 the Supreme Court of Canada was constituted by La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ. The judgment of the Court was delivered by Iacobucci J. The accused was charged with murder; the evidence against him was largely circumstantial but it included a statement which the accused made to a friend after his arrest and after he had been cautioned that he was not required to say anything. The friend visited the accused in prison at the request of the police. The friend wore a recording device. The friend questioned the accused about the killing of the deceased.
The evidence of the statements made to the friend was excluded pursuant to the provision of the Charter [the Canadian Charter of Rights and Freedoms]. The Court identified two questions which were necessary for decision but which did not have to be answered in Hebert. The first was whether the friend was an agent of the State. The second was whether the accused’s statement had been elicited by the friend. The Court held that the friend was an agent of the State during the conversation. The meeting was set up and facilitated by the police and, without the intervention of the authorities, there would have been no conversation. The Court held further that the statement had been elicited because parts of the conversation were in the nature of an interrogation, not just parts of a conversation which flowed naturally. It concluded that the admission of the evidence would render the trial unfair.”
In dealing with the crucial question thus exposed, namely the interaction between the course undertaken by the police and the right of a suspect to decline to answer questions, their Honours said (192 CLR at 202) –
“[91] However, the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. [emphasis added] in the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, and approach which looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom had been impugned.”
It is I think, worthwhile to set out the passage from R v Broyles to which their Honours referred, which identifies two important, perhaps crucial considerations. The Court said ([1991] 3 SCR 595 at 611 -
“The first set of factors concerns the nature of the exchange between the accused and the State agent. Did the State agent actively seek out information such that the exchange could be characterised as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informant be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.
The second set of factors concerns the nature of the relationship between the State agent and the accused. Did the State agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the State agent and the accused? Was the accused obligated or vulnerable to the State agent? Did the State agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?”
As Toohey, Gaudron and Gummow JJ say (192 CLR at 202) –
“[91] …where the freedom [of choice to speak to the police] has been impugned the Court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the Court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted, There may be no unfairness involved but the Court nay 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. ...”
Accordingly, in Swaffield’s case, Toohey, Gaudron and Gummow JJ concluded “the admissions were elicited by an undercover police officer, in clear breach of Swaffield’s right to choose whether or not to speak.” And therefore dismissed the appeal from the decision of the Court of Appeal. In Pavic’s case, their Honours concluded that Clancy should be regarded as an agent of the State and the relevant question then was “whether the admission by Pavic were elicited by Clancy or were made in the course of the conversation…[or put] another way, was there an interrogation by Clancy?” It seems that third question came down to whether Clancy misled Pavic into making the admissions. Their Honours did not think that the trial judge erred in finding that there was no sufficiently causal link between the allegedly misleading statements and the admissions, dismissed the appeal.
Kirby J disagreed with the majority on the outcome of Pavic’s appeal, concluding that the discretion to allow the admissions into evidence was wrongly exercised. However, I do not think that his Honour applied a different test to that enunciated by the majority. It is, I think, helpful to set out some of his Honour’s remarks. Kirby J set out the passages in Broyles extracted above went on to say (192 CLR at 220 -221) –
“[155] I agree in the approach expressed by the Supreme Court of Canada. I do not consider that it is derived from the Charter so as to make it inapplicable to analogous circumstances in Australia. The test propounded is consistent with the general approach which our law has taken towards deception by law enforcement officials. Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest…There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority…Such facilities must be employed by any modern police service. The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent. Or it will be crossed where police have exploited any special characteristics of the relationship between the suspect and their agent so as to extract a statement which would not otherwise have been made.”
In R v Workman [2004] NSWCCA 213; (2004) 60 NSWLR 471 this Court considered an appeal against conviction for various sexual offences following a trial in which was admitted a recorded conversation between the complainant and the accused. The alleged offences occurred between July 1991 and August 1999. In August 2000 the complainant moved from Sydney to reside with her sister in Queensland. Her sixteenth birthday occurred late in that month. The complainant reported the appellant’s alleged misbehaviour and consented to participate in a telephone conversation with the appellant. The police officer was located in a separate room when the conversation occurred and it was conceded that the content of the conversation was of high probative value to the Crown case, although there was no direct admission which could attach to the particular counts in the indictment. Grove J (with whom Dowd and Sperling JJ agreed) said “there was ample confirmation by the appellant that he had engaged in sexual activity to the complainant”. There was no ground for appeal under s 137 of the Evidence Act 1995, I take it because it was conceded that the evidence had considerable probative value. The appeal was decided by reference to s 138 of the Act, which deals with the discretion to exclude improperly or illegally obtained evidence. It was argued by reference to s 138(2) that, because the complainant made the call to the appellant at the request of the police she should be regarded as an agent of the police and thus conversation should be categorised as questioning within the meaning of that subparagraph and hence, potentially the admission may have been improperly obtained. Grove J said, however, that “the transcript of the conversation refutes any suggestion that it was the ‘functional equivalent of an interrogation’”, citing R v Broyles and the Court concluded that “the material in this instance does not fulfil the test of impropriety [as discussed in Swaffield] or as specified in s 138(2)”. Grove J pointed out that it “should not be overlooked that the complainant was a sixteen-year-old girl speaking to a person who had for a time stood in loci parentis to her…[and not] only was she scarcely in the position of the interrogator but, if the appellant had felt pressured in any way, he could have terminated the conversation at any time…”.
Although Workman is an example of the disposition of a case where a conversation between a complainant and the appellant said to yield admissions was covertly taped at the instance of the police, I do not think that it yields, with respect, any useful statement of principle that assists in the disposition of the present appeal. The Court’s decision as to whether, in the circumstances, the questioning was interrogation falling within the meaning of “questioning” in s 138(2) depended on the facts there found. The factual circumstances here, in particular the terms and character of the conversation, are very different.
To take up the two issues posed in Broyles, as accepted in Swaffield & Pavic, it should first be concluded that the material parts of the conversation were “the functional equivalent of an interrogation”. It was an interrogation in language and character. In no sense could it be regarded as an ordinary conversation. In form, it would have been seriously improper had it been conducted by a police officer: rolled up allegations were put, the appellant’s reluctance to respond was ignored and the allegations put with increased insistence, the appellant was repeatedly interrupted and he was told several times that his admissions of or explanations for wrongdoing were necessary for the complainant’s mental health. Secondly, the police did indeed exploit the special characteristics of the relationship between the complainant and the appellant, not so much because of any relationship of trust, but by virtue of the overwhelmingly emotional character of the allegations, both inherently and by the manner in which they were conveyed, which rendered the appellant far more likely to talk and to make admissions.
Moreover, the admissions were equivocal and ambiguous and did not relate in anything but the vaguest way to the charges. In this court the Crown prosecutor conceded that they went no further than admission of some form of sexual impropriety. Yet the jury may well have taken them to admit far more. It is not appropriate to work back from the allegations as they were ultimately formulated by the Crown to the admissions allegedly made by the appellant. The terms of those charges cannot make the admissions clear. Nor, in my view, is it appropriate to take, as it were, the minimum position and argue that they were admissions of some form of sexual impropriety and thus the solve the problem of vagueness. There still must be some real link between the alleged impropriety and the charges laid. It sometimes happens that a person admits one act of sexual misconduct that can be related to a particular charge amongst a group of charges. But that admission cannot be used as corroboration of the other charges. Where the admission is general and vague, this problem is not resolved in my view by reducing its proposed use to the lowest common denominator. However, at all events, the jury were given no directions as to how the conversation might be used except that it might be used as admissions. These admissions were never specified. The learned sentencing judge left the subject to the jury in these words –
“The Crown submits that it does not matter what the questions were, it was the answers of Steven Pavitt that are important. However, the demeanour of Steven Pavitt, that is to say this highly emotional thing and the colourful words that he used are something that you must have heard and you must determine what weight you give to that telephone conversation. It is a fairly important piece of evidence.”
With respect, these directions did not deal adequately with the nature of the evidence represented by the conversation. In particular, there was no reference to the fundamental importance of distinguishing on the one hand between what they might believe from the nature of the questions and the way in which they were expressed and what was the true extent of the admissions, if any, made by the appellant. The jury may well have been left with two seriously mistaken impressions: the first is that they were entitled to believe the complainant because of the way he spoke and conducted himself in the conversation, quite apart from the admissions, if any, made by the appellant; the second is, if they accepted that admissions were made, it was not necessary to be concerned with the scope and import of the admissions and the conclusion that some admission was made was sufficient to prove the Crown case or, at least, corroborate the complainant’s evidence as to all or most of the charges.
No application was made for further directions and this matter has not been the subject of argument in this appeal. In light of the view I have formed as to the proper disposition of the appeal, there is no need to discuss this aspect of the trial further.
In my view, for the reasons I have given, the conversation should have been excluded either by virtue of s 90 of the Evidence Act 1995 because, having regard to the circumstances in which it was made it was unfair to the complainant to use the evidence or because under s 137 its prejudicial effect outweighed its probative worth in proof of the specific charges alleged by the Crown.
Even if the conversation, contrary to the view expressed above, was admitted, the recording should not have gone to the jury. Counsel for the appellant submitted to the learned trial judge that, because of the emotional intensity with which the complainant made his allegations, the tape recording should not be admitted into evidence. The Crown opposed this course, contending that the tape recording was the best evidence of the conversation. If the tape recording was unfairly prejudicial, the fact that it might be the best evidence of the conversation is not an answer. Unfairly prejudicial evidence must be excluded. (It should be noted that the prosecution would not have lost the evidence, since the transcript of the conversation could have been admitted.) In my view, the unfair prejudice arising from the complainant’s part of the conversation, should have led the learned trial judge to have exercised his discretion in the manner sought by the defence, even accepting that the conversation was indeed admissible. The prosecutor argued that the jury could draw inferences adverse to the appellant from comparing the unrestrained emotion of the complainant with the calmness with which the appellant responded to the allegations. In my view, this reasoning highlights the unfairness of permitting the recording to be admitted. As I have mentioned, the allegations made by the complainant and the form in which they had been made could never have been given from the witness box. Moreover, the confrontation had been procured by the police and the highly emotive language used by the complainant had been prompted at least in part by the police officer. My impression of the tape recording is that its true forensic power is not so much the admissions of the appellant but the almost uncontrolled emotional force with which the complainant makes his allegations. In short, there was a grave risk that jury would believe the allegations made by the complainant and disbelieve the appellant, not because of the admissions made by the appellant – so far as they went – but because of the way in which the complainant made the allegations. If the jury were convinced by hearing and seeing the complainant in the witness box, that is one thing, but to be convinced by or to weigh in the balance the complainant’s allegations because of the way they were made in this telephone conversation is to my mind unfairly prejudicial to the appellant. It is virtually impossible for him to deal with the conversation either in cross-examination of the complainant or in his own evidence. It is a significant element of unfairness that it cannot be known what parts of the conversation were prompted and what parts were not. There was nothing at all in the directions to the jury to assist them to deal with this very difficult evidence though I acknowledge that no directions were sought.
In my respectful opinion, the admission of the tape-recording was productive of significant unfairness. No real question of weighing its probative value with its unfairly prejudicial character can arise. The mode of expression, the emotional intensity and distress of the complainant had either no or almost no probative worth: what he said was admissible only to the extent that it was adopted by the appellant. It was not suggested either at the trial or on the appeal that the jury could infer that the appellant admitted the allegations made to him because he did not deny them, though this was a very likely interpretation of the conversation that the jury might make. Far from justifying its admission, in my view this likelihood demonstrates the unfairness of this use of the tape. Moreover, such is the complainant’s emotional intensity, there is a very real risk that it would overwhelm the dispassionate and objective consideration of his credibility. Also, the inevitable consideration of the believability of his allegations as made in the telephone conversation had the real risk that it would deflect the jury from its proper task in respect both of its consideration of the extent to which the conversations contained relevant admissions by the appellant and their evaluation of his credibility as they saw him in the witness box.
Accordingly, I would allow the appeal on this ground and quash the conviction. It is therefore unnecessary for me to consider the other grounds of appeal.
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AMENDMENTS:
04/04/2007 - NSW DPP appeared for Respondent - Paragraph(s) Front sheet
LAST UPDATED: 4 April 2007
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