R v Coutts
[2013] SADC 50
•26 April 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v COUTTS
[2013] SADC 50
Reasons for Rulings of His Honour Judge Tilmouth
26 April 2013
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
The accused was charged with 10 counts of raping his partner and two counts of assault, both comprised of choking. Choking is also alleged to have been involved during the course of three of the rape charges. The complainant recorded the events concerned with two of the charges on her mobile telephone, and on another occasion recorded a conversation in which the accused threatened to choke her. Objection was taken to the admission of both recordings on the basis they were prohibited communications under the Listening and Surveillance Devices Act 1972 (SA).
Held 1. In the circumstances both recordings were made 'for the protection of the lawful interests' of the complainant, within the meaning of s 7(1)(b) of the Listening and Surveillance Devices Act, so that there was no breach of the prohibition.
2. The concept of 'protection' therein meant 'defence against harm, damage or evil' at the time the recording was made.
3. Even if the recordings were illegally made, the evidence is so cogent and reliable and of such high probative value that the only proper exercise of discretion was to admit it.
4. As the first recording was original evidence of the events to which it relates, the operation of the discreditable conduct provisions of s 34P of the Evidence Act 1929 (SA) are not attracted. In any case as both recordings are of such high probative value they pass the test for admission under that section.
Listening and Surveillance Devices Act 1972 (SA) s 3, s 5(1), s7(1); Listening Devices Act (NSW) s 5(3)(b)(i); Evidence Act 1929 (SA) s 34P; R v Smith & Turner (1994) 63 SASR 123; R v Musico BC900142; Price v Police [2008] SASC 208; Moore-McQuillan v Police (No 2) [2010] SASC 160; Public Trustee v Alvaro (1995) 182 LSJS 383; Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266; R v Burns (2001) 123 A Crim R 226; R v Domokos (2005) 92 SASR 258; United States v White (1971) 401 US 475, referred to.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Thomas v Nash (2010) 107 SASR 309, applied.
R v Le (2004) 60 NSWLR 108; Supulveda v The Queen (2006) 167 A Crim R 108, discussed.
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION - GENERALLY
The defence objects to the admission of a record of interview with the accused on the grounds that he was not duly cautioned and on the grounds of unfairness.
Held 1. He was in the circumstances afforded a reasonable opportunity to exercise his right to silence because the true basis for his arrest was sufficiently made known to him, so there was no basis for exclusion on this ground.
2. However at the point the interviewing Detectives left and then returned to the interview room, the circumstances were such that the only fair way to proceed was to play the accused the recording of the events he was being questioned about.
3. As a result there was unfairness to the accused in as much as there was a risk of an adverse inference being drawn from the late exercise of the right to silence, too much might have been made of continuing false denials and because he may have felt locked into repeating the earlier denials.
4. Accordingly from that part onwards the interview ought to be excluded.
Summary Offences Act 1953 (SA) s 79A; R v Stafford (1976) 13 SASR 392; Christie v Leachinsky [1947] AC 573; R v Ireland (1970) 126 CLR 321; Petty & Maiden v The Queen (1991) 173 CLR 95; Swaffield & Pavic v The Queen (1998) 192 CLR 159; Duke v The Queen (1989) 180 CLR 508; R v Winkel (1911) 76 JP 191; R v Brown & Bruce (1931) 23 Cr App R 56; R v Wattam (1952) 36 Cr App R 72; R v Straffen [1952] 2 QB 911; McDermott v King (1948) 76 CLR 501; Van Der Meer v The Queen (1988) 62 ALJR; R v Lee (1950) 82 CLR 133; R v Collins (1980) 37 ALR 257; Walker v Marklew (1976) 14 SASR 463; R v Lavery (1979) 20 SASR 430, referred to.
Van Der Meer v The Queen (1988) 62 ALJR 656; R v Williams (1976) 14 SASR 1; Swaffield & Pavic v The Queen (1998) 192 CLR 159; Foster v The Queen (1993) 67 ALJR 550; R v Brown (1988) 146 LSJS 326, applied.
R v Szach (1980) 23 SASR 504; Bunning v Cross (1977) 141 CLR 54, discussed.
WORDS AND PHRASES CONSIDERED/DEFINED
"lawful interests", "protection"
R v COUTTS
[2013] SADC 50The charges
The accused is charged on an Information containing 12 counts, filed in the November 2012 sessions of the court. Counts 1 to 10 charge him with rape and counts 11 and 12 with assault. The alleged victim is his former partner. The offences were allegedly committed between mid January 2009 and 3 May 2009.
The couple commenced a relationship in October 2008 and towards the end of the year had become engaged. On the prosecution case it was after New Year 2008/2009 when the accused first became abusive and physically violent towards the complainant, more so as time went on. It is alleged in the Information that he forced her to perform non-consensual oral sex on six occasions (counts 1, 2 , 6,
7, 9 and 10), three acts of anal sex (counts 4, 5 and 8) and one of vaginal sex (count 3). She was allegedly choked in the course of the events giving rise to counts 3, 4 and 10, and choking consists of the core allegation of assault on both counts 11 and 12.[1]
[1] At his subsequent trial verdicts of no case to answer were directed on counts 2 and 9. The jury found the accused guilty of all remaining counts except for count 11, on which a majority verdict of not guilty was returned.
By way of preliminary objection the defence resists the admission of two recordings made by the complainant on her mobile telephone. The first was recorded on 23 March 2009 shortly after the rape on count 6 is said to have been committed and during the course of the events giving rise to counts 7 and 8. The second was made on 26 April 2009 during the course of a car journey during which the accused is said to have been abusive and threatening. It was admitted for the purposes of the voir dire that the voices on the first recording were those of the accused and the complainant. Whilst no such concession was made with respect to the second, the application for exclusion was argued on the same footing. The defence also oppose the admission of a record of interview conducted at the Holden Hill Police Station on Tuesday 5 May 2009, on the broad grounds that Mr Coutts was not duly cautioned and on alternative grounds of unfairness. These reasons deal with the above issues.
Alleged background facts
In statements before the court the complainant speaks at length of the nature of the relationship between her and the accused, one that was characterised by the accused’s controlling, vindictive, threatening and violent nature. It was a relationship in which she felt trapped because she had become afraid of him. During the relationship he is alleged to have choked her on a number of occasions, sometimes to the point of unconsciousness. Count 1, the first of a number of forced acts of fellatio, occurred about two weeks after New Year’s Eve. Counts, 2, 3 and 4 are alleged to have been committed shortly thereafter in February 2009. Count 5 is said to have occurred the day before her birthday. Counts 6, 7 and 8 are alleged to have occurred on 23 March 2009, since that is the date the first of the two recordings bears.
The complainant alleged that at one point the accused spoke to her about another charge of rape levelled against him by another woman (which he denied), and which he described as being ‘his word against hers’. He bragged to the complainant in this case that he would probably get off the charges and that:
… even if she had secretly recorded him that he would still get off because it was illegal for someone to record something without the knowledge of the other person.
It is this notion she claims that gave her:
the idea to record him attacking me and his abuse of me, because I thought that no one would believe my word alone and that I needed to have proof.
The recording of the incident of 23 March 2009 came about in this way. Both were at her home on that evening watching DVDs in the lounge room. The accused ‘pulled his pants down and demanded that I give him a head job’. She maintains that she did not wish to comply, but had no choice because she feared he would hurt her again. An act of oral rape is alleged to have occurred on the couch (count 6). After several minutes ‘he became very angry and got up and said “get in the fucking room now”’. He is alleged to have then walked to the bedroom ahead of her, she following but not before picking up her mobile phone which had been beside her on the couch. She set it to the recording mode and secreted it on the ground under a cushion.
The recording itself commences with the audible and emphatic words:
get the fuck into bed … hurry the fuck up as well. Grab the dildo out of the top drawer as well you’re going to fuck yourself with it as I’m up your arse.
Things do not get any better thereafter. It is sufficient for the present purpose to simply note that the accused’s voice is at times quite loud and demanding. He makes blunt demands and threats and she is heard to be crying and screaming, at times disconcertingly so. She is also heard to be protesting, often. The recording is quite graphic and intense. Not only are threats made, the complainant is abused and belittled. She is to all audio impressions forced into acts of oral and anal sex, and to masturbate herself with the dildo. Toward the latter part she is heard to be crying, obviously distressed and in pain.
As to the second conversation recorded on 26 April 2009, the complainant says they were in the accused’s car on their way to collect his daughter. He began to berate her for telling him ‘that I felt like a commodity to him and a means to an end’. Shortly afterwards he spoke about his ‘knowledge of martial arts and how he knew how to choke me without leaving marks’. He became aggressive, resentful and angry. Internal references in the recording itself suggest that what she alleges triggered him to erupt is true enough judged from his statement ‘do you wanna know why you accuse me as treating you like a commodity’, ‘do you want to find out what a fuck’n commodity feels like’ and her response ‘I’m sorry that I said you treat me like a commodity’. She claims he grabbed her by the throat and was yelling at her. As they pulled into a service station she managed to activate the record mode of her mobile phone secreted in her handbag placed in the front passenger footwell, as he went inside the station.
That male voice is heard to be emphatically asserting:
you’re aware there’s actually a couple of ways to choke someone … there’s here, where you don’t black out, because the jugular runs down either side of your … I can have you unconscious in two seconds … and I will choke you the fuck out repeatedly ….
This material is proffered by the prosecution as admissible evidence on the choking counts 3, 4, 10, 11 and 12, on the basis that it demonstrates esoteric knowledge of choking techniques and his preparedness to employ them.
The listening devices legislation
Exclusion is sought on the premise that the recordings offend the prohibition on recording private communications established by the Listening and Surveillance Devices Act 1972 (SA) (the L&SD Act). Section 5(1) provides:
5—Prohibition on communication or publication
(1)A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device in contravention of section 4.
Maximum penalty: $10 000 or imprisonment for 2 years.
The primary exception to this prohibition is that contained in s 6. This permits a Judge of the Supreme Court to authorise the use of a listening device under certain circumstances not relevant here. A secondary exemption is created by s 7 of the L&SD Act as follows:
7—Lawful use of listening device by party to private conversation
(1)Section 4 does not apply to or in relation to the use of a listening device by a person (including a person to whom a warrant is issued under this Act) if that listening device is used—
(a)to overhear, record, monitor or listen to any private conversation to which that person is a party; and
(b)in the course of duty of that person, in the public interest or for the protection of the lawful interests of that person.
There is no dispute that the telephone was a ‘listening device’ as defined in s 3 of the L&SD Act, being ‘an electronic or mechanical device capable of being used to listen to or record a private conversation’. Nor is it disputed that this conversation was a ‘private conversation’ as defined in s 3, namely:
any conversation carried on in circumstances that may reasonably be taken to indicate that any party to the conversation desires it to be confined to the parties to the conversation’.
The prosecution rely on s 7(1)(b) in order to avoid any suggestion of illegality, so it was submitted the discretion to exclude simply did not arise.
Judicial decisions in point
In R v Smith & Turner[2] Perry J held that a surreptitious recording of a suspect by a police informer at the instigation of the police was in the ‘public interest’ within the meaning of s 7(1)(b) of the L&SD Act. At the same time his Honour doubted whether an interception of that kind was one made for the protection of the lawful interests of the informer himself.[3] The same view was taken in R v Giaccio as to the public interest limb of s 7(1)(b).[4] In R v Musico,[5] Matheson J suggested without deciding, such records of telephone conversations with an accused ‘were lawful by dint of the provisions of s 7 of the Listening Devices Act’.[6] On the other hand in Price v Police,[7] Vanstone J considered a recording made on a closed circuit television camera by a hostile neighbour, did not fall within that exception.[8]
[2] (1994) 63 SASR 123
[3] Above at 128
[4] (1997) 68 SASR 484
[5] Unreported Supreme Court of South Australia No 142 of 1990, 19 December 1990 BC900142
[6] BC p 12
[7] [2008] SASC 208
[8] Above at [26]
In other cases diverse conclusions were reached about the application of the ‘lawful interests’ limb. In Moore-McQuillan v Police (No 2)[9] Nyland J considered a tape recording made by a court reporter of a threatening statement made in a court room before the court had convened, was in the public interest.
[9] [2010] SASC 160 at [27]
There are other decisions of relevance delivered in civil cases. For instance in Public Trustee v Alvaro,[10] Legoe AJ formed the view that a tape recording of the deceased made by his son was admissible in probate proceedings wherein the issue was one of testamentary capacity. Then in Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd,[11] Sulan J rejected the notion that tape recordings of Management Committee meetings, although private, were not conversations within the meaning of s 4 of the L&SD Act. His Honour considered they were of an entirely different commercial character and purpose to a ‘private conversation’,[12] and in any case that a desire to obtain an accurate record was of itself insufficient to constitute a ‘lawful interest’.[13] However his Honour concluded:[14]
I conclude that Alliance has a number of lawful interests which it can protect. The meetings of the Management Committee operate within a commercial setting in which the commercial interests of the joint venturers are of central importance. The meetings take place pursuant to one or more contractual agreements for the purpose of carrying those agreements into effect. Motions agreed or passed at meetings, and other decisions reached, affect the substantive rights and obligations of the parties. Accordingly, it is for the protection of the interests of both joint venturers that there is an accurate record kept of communications at the meetings. These lawful interests do not in my view undermine the operation of s 4 of the Act. Rather, the recording of the discussions at the meetings ensure that there is an accurate record of the discussions leading up to the recorded decisions of the joint venture. They agreed to the nature of the business transacted at the meetings, and the obligations on the representatives of each party to report back to their respective superiors where there is a legitimate interest in having an accurate record of the discussions. It is not difficult to imagine the situation that senior personnel of one or other joint venturer might seek an explanation as to how a resolution was arrived at and what those at the meeting contemplated when they proposed and voted upon a resolution. If the resolution is ambiguous discussions leading to it may assist in interpreting it and how it is to be implemented.
[10] (1995) 182 LSJS 383
[11] [2010] SASC 266
[12] Above at [32] & [36]
[13] Above at [48]
[14] Above at [50]
In another civil case Thomas v Nash,[15] Doyle CJ examined a number of authorities and came to the following conclusions:
[47] In none of those decisions is there an attempt to identify comprehensively the scope of the expression “lawful interests”. That is not surprising. It is an expression which is best left to be applied case-by-case, subject to some general guidelines.
[48] Each decision is an application of the expression to its particular facts. In most of those decisions it was accepted that a mere desire to have a reliable record of a conversation is not enough. I agree. Most of the decisions proceed on the basis that a desire to gain an advantage in civil proceedings would not ordinarily amount to a relevant lawful interest, although of course each case has to be considered on its facts. Several of the cases proceed on the basis that where the conversation relates to a serious crime, or an allegation of a serious crime, or to resisting such an allegation, a court is more likely to find that the recording of a conversation relating to the crime can be made in the protection of the person’s “lawful interests”.
[49] A number of the decisions make the point, with which I agree, that the exception in s 7(1)(b) should not be read so widely that it undermines the protection given by s 4, which protection is at the very heart of the Act.
[15] (2010) 107 SASR 309
It can be readily accepted that s 7 should not be read in such a way as to undermine the fundamental protection afforded by s 4. The parliamentary proceedings at the time of the introduction of what was then the Listening Devices Bill are replete with references to the protection of rights of privacy.[16] It is no overstatement to add, as Douglas J did in United States v White:[17]
What the ancients knew as ‘eavesdropping,’ we now call ‘electronic surveillance’; but to equate the two is to treat man's first gunpowder on the same level as the nuclear bomb. Electronic surveillance is the greatest leveller of human privacy ever known.
[16] Hansard, Legislative Council 17 November 1972 p 2604-5, 2 November 1972 p 2673-4, 7 November 1972 p 2743-4
[17] (1971) 401 US 475 at 756
The point is made clearly in R v Le,[18] in relation to the Listening Devices Act 1984 (NSW):
The Act serves to protect against unjustified invasions of privacy by recording or listening to private conversations, something now readily done through electronic aids. Its beneficial purpose should be recognised in its interpretation, but where the purpose is achieved by the creation of criminal offences uncertainty in the reach of the definition should be decided by construing it in favour of the alleged offender. Further, the Act also authorises intrusions into property and privacy, in particular intrusion by the state pursuant to warrants. Such legislation is to be strictly construed, although without being unduly technical (see Ousley v The Queen(1997) 192 CLR 69 at143, per Kirby J; Barbaro v DPP (1999) 49 NSWLR 68 at 73 (O'Keefe J); Commissioner of Police v Barbaro (2001) 51 NSWLR 419 at 422 (CA)). Again, uncertainty in the reach of the definition should be decided by construing it against the would-be intruder and, the use of a listening device being common to both the protection and the authorisation, the same construction will apply in relation to the offences. The definition of a listening device should be construed restrictively rather than liberally.
[18] (2004) 60 NSWLR 108 at [20]
Mr Le was charged with two breaches of the NSW Act. A Local Court of Summary Jurisdiction found him guilty of both. The matter came before the Court of Criminal Appeal by way of questions of law submitted for determination pursuant to s 5(b) of the Criminal Appeal Act 1912 (NSW). These questions were whether a microphone fitted to a video camera came within the meaning of a ‘listening device’, whether that device was used for the purposes of recording a private conversation and whether the conclusion that Mr Le had not established the statutory defence that the recording was reasonably necessary for the protection of his lawful interests was erroneous. These questions were respectively answered, no, no and yes.[19]
[19] Above at [80]
As is readily apparent the one material difference between the New South Wales provision and the L&SDA Act, is that s 5(3)(b)(i) of the Listening Devices Act (NSW) avoids the prohibition from using listening devices where the recording of the conversation is ‘reasonably necessary for the protection of the recording party’. The difference lies in the use of the word ‘reasonably’, a term not present in the South Australian provision.
The New South Wales provisions were considered again by differently constituted coram in Supulveda v The Queen,[20] in circumstances again having their parallels with the current case. The appellant was convicted of sexual offences against two children. In each instance clandestine recordings were made of admissions made by him. These were admitted by the trial judge and that ruling was upheld on appeal. In his judgment Johnson J (with whom the other members of the court agreed) considered the introduction of the word ‘reasonably’ as qualifying the conditions of exemption, ‘imports an objective test’.[21] He considered it had not been demonstrated that the recordings ‘were reasonably necessary’ for the purposes of the exemption.
[20] (2006) 167 A Crim R 108
[21] Above at [118]
The court held ‘protection’ meant ‘defence against harm, damage or evil’ at the time the recording was made,[22] that the motive in making a recording was relevant,[23] and that what was reasonably necessary for the lawful interests of the recording party ‘depends upon the circumstances of a particular case’.[24] However Johnson J proceeded to hold that these recordings were ‘highly probative’, and as there was no prejudice to the appellant, the proper exercise of discretion was to admit them.
[22] Above at [120]
[23] Above at [149]
[24] Above at [125]
There is no basis for implying an objective test into s 7(1)(b) of the L&SD Act, particularly when Parliament has not employed words suggesting such a construction was intended. The duty of the court is to give statutory words the meaning the legislation is taken to have intended: Project Blue Sky Inc v Australian Broadcasting Authority.[25] For the same reason it is difficult to see how the protection of the lawful interests could be entirely subjective as Mr Williams argued, fundamentally because that would have the distinct capacity to undermine the effectiveness of prohibition itself. Moreover it is equally difficult to appreciate how a recording could be made in the lawful interests of the person making it, if the recording was made unreasonably.
[25] (1998) 194 CLR 355 at 384 [78]
None of the South Australian cases referred to earlier suggest either a subjective or objective test. On the contrary they appear to have proceeded to make an evaluative judgment in light of the proven facts and circumstances – of which the recorder’s motive was but one – in determining the question, as indeed the judges did in those cases in which the ‘public interest’ limb of s 7(1)(b) was in question.
On that view of matters the facts of this case as revealed by the depositions, are that the complainant was trapped in a violent and abusive relationship, from which at relevant times she had no escape. It was not a realistic option to report her predicament to the police, as it was in Supulveda. In that situation it was entirely appropriate for her to make the recordings for the protection of her own lawful interests, as a legitimate means of defence against the extreme levels of harm and danger she faced. Both were made as spur of the moment decisions, in situations of high and inherent risk of danger. There was no semblance of any ruse, set-up or trap – the danger had been set upon her. That being so, there was no infringement of the L&SD Act in either case.
Discretionary exclusion
In any event even if there were breaches of the L&SD Act, the evidence of 23 March events is highly probative, because it is reliable and because it is cogent original or direct evidence of the events. As just mentioned there is no semblance of a set-up, contrivance or improper motive in making it. The only prejudice to the defendant resides in high probative value.
The same considerations apply to the April 26th exchange, except only that it is not direct evidence. Nevertheless that evidence is reliable because it is recorded. It is of high probative value because of its capacity to demonstrate Mr Coutts had the knowledge and ability to choke the complainant to the point of unconsciousness, in exactly the manner she describes. On one view of the recording – one not pressed by the prosecution - some expressions might be construed as evidence of implied admissions that such techniques had been employed on the complainant in the past. As that view point is not pressed, it is unnecessary to go that far for the purposes of this ruling.[26]
[26] Those expressions are ‘so you’re aware there’s actually a couple of ways to choke someone’ and ‘I can have you unconscious in two seconds … funny because that’s how often you have’.
Discreditable conduct
Since the evidence of the first recording is direct evidence, it does not attract the operation of s 34P of the Evidence Act 1929 (SA): R v Burns[27] and R v Domokos.[28] If it did, the probative value thereof palpably outweighs prejudicial affect. Moreover adequate directions can be formulated to limit the permissible use, so as to remove any risk of impermissible use.
[27] (2001) 123 A Crim R 226
[28] (2005) 92 SASR 258
Although the second recording is not direct evidence as such, for the reasons given earlier it is of high probative value and likewise adequate directions can be drafted to circumscribe permissible and impermissible uses. Furthermore, to the extent that the recording of April 2009 contains the capacity to reveal a disposition or propensity in the accused to resort to choking, it nevertheless retains strong probative value having regard to that issue, as choking forms such a central place in the allegations against him.[29]
[29] Section 34P(2)(a) & (b) Evidence Act 1929 (SA)
Record of interview
Mr Coutts was arrested on the two assaults of 3 May 2009, the subject of counts 11 and 12 after voluntarily surrendering himself to the Holden Hill police. He was kept in custody overnight in the police cells, police bail being refused. He was taken from the holding cells to an interview room in the police station in the early afternoon of Tuesday 5 May 2009 for questioning by two Detectives. They immediately placed him under arrest for ‘sexual assault’,[30] and advised him the interview was being recorded. He was duly informed of his arrest rights under s 79A of the Summary Offences Act 1953 (SA). When asked by Detective Perkins if he desired to telephone his lawyer or have him present, he responded ‘Oh, I probably should have him here, I mean it’s a pretty serious allegation’. Next asked ‘Would you like to call him’, he responded ‘Ah stuff it, I’ll just get this out of the way’.[31]
[30] ROI p1 l33
[31] ROI p5, l19-23
Mr Coutts was then cautioned that he was ‘not obliged to answer any questions or say anything’, which he said he understood.[32] He was then told he was to be questioned about an allegation of rape that occurred on 23 March 2009 and thereupon immediately cautioned for a second time, which he again professed to understand.[33] The line of questioning began with his general relationship with the complainant, whom he referred to as his ‘former fiancée’. He volunteered that they ‘just had a pretty massive break up’ and that she was ‘gonna do or say whatever it takes to get me put in gaol’.[34] This he said occurred on the previous Sunday, which of course was when the two alleged assaults took place.
[32] ROI p6, l12-30
[33] ROI p6, l38-43
[34] ROI p7, l1-6
The following exchange then transpired:[35]
[35] ROI p7, 10-43
AThis was Sunday, that’s just past.
QSo today’s Tuesday, two days ago.
AUm, yes.
QOkay
AI found out she was um working in a passage pla, um, massage parlour which I was pretty disgusted with cause it wasn’t like, wasn’t normal massage, it was a happy ending type, and that she’d formerly worked as a prostitute and she kept all that from me so we had a bit of a massive break up.
QWhen did you find this out.
AUm I found out she used to work as a prostitute earlier but she just on Sunday, she admitted that she was still doing it. So that was it, I got out of there.
QOkay, and you said you found out that she used to be a prostitute.
AYeah.
QWhen was that.
AUm around April. I wasn’t 100 …
QThis year.
A… yeah. I wasn’t 100% sure on it, but she confirmed everything on Sunday.
QOkay, and you say you found out she was working in a massage parlour with a happy ending.
AYeah, rub, one of those rub and tug joints.
Mr Coutts proceeded to tell the police that he and the complainant did not live together, that he spent a good deal of time at her house in the previous four or five months and that he had ‘trust issues’ with her. At a later point he indicated when asked if they argued:[36]
Just stupid little things. I can’t, to be honest, I can’t really remember, I’ve, I’m really confused and overwhelmed with everything that was going on at the moment. My head’s not in a good place at the moment’.
[36] ROI p10, l9-12
Detective Perkins next directed Mr Coutts to the nature of his sexual relationship with the complainant. He denied any violence or rough handling was involved. He volunteered ‘sex was always really gentle because she didn’t like rough stuff’.[37] He also denied having forced her to have sex, or having raped her and he denied doing so on 23 March. He also denied ‘yelling at her to take her clothes off’, using a forceful or threatening tone or ‘threatening her in any way whilst having sex’.[38]
[37] ROI p 11, 16-20
[38] ROI p 12, 9-22
The interrogator then directed Mr Coutts specifically to 23 March 2009, inquiring whether he had ‘forced her into the bedroom and forced her to have sex’, ‘forced her to use a vibrator’, ‘anally raped her’, to which he responded ‘did not happen’, ‘never happened whatsoever’.[39] Following these questions he expressed to being ‘extremely embarrassed’ about such topics.[40]
[39] ROI pp 13.33 – 14.3
[40] ROI p16, l27-33
Soon after both Detectives left the room in order to ‘clarify something’. Just what it was they did not specify. Upon returning within a minute or so they put specific and detailed allegations to Mr Coutts, no doubt based upon the content of the audio recording of the events in the bedroom on 23 March. The accused denied any physical force was involved. But then it was put to him squarely for the first time:[41]
Q… if I said to you we had an audio recording of the two of you having sexual intercourse and that there was, your voice on there verbally abusing and threatening her to have sex with you what would you say
AI’d be completely shocked
[41] ROI p21, l41-46
Mr Coutts continued to deny forcing any kind of sex upon the complainant. Soon after he indicated:[42]
I’d like my lawyer … I don’t like where this is heading. I’d like my lawyer
Thereupon questioning rightly ceased. The interview concluded at 1.14 pm.
[42] ROI p23, l45 – p24, l7
No evidence was called to explain just why the police left the room, before putting the specific contents of the recording to the accused. They had already by then gone over the general and then the specific allegations about the events of the 23rd, so that it was more of the same type of probing after they returned. One can only speculate as to what they talked about when they left. Whatever the situation they plainly made a conscious decision not to play the recording to Mr Coutts.
An effective election to proceed with questioning?
Objection is taken on the basis that Mr Coutts was not sufficiently acquainted with the nature and content of the allegations confronting him so as to permit him to make an informed election whether to speak or remain silent. Quite apart from the obligations imposed by s 79A of the Summary Offences Act, the law provides that an accused person must be afforded the reasonable opportunity to exercise the right to silence, which can only be effectively so exercised upon being informed of the true grounds of arrest: R v Stafford,[43] applying Christie v Leachinsky.[44]
[43] (1976) 13 SASR 392 at 399-400
[44] [1947] AC 573 at 587-588
There is no basis upon which to discern that the accused was confused or misled as to the reason for his arrest. He was told at the outset he was under arrest for a ‘sexual assault’. He acknowledged himself that this was a ‘... pretty serious allegation’. He was specifically told he was to be questioned ‘about an allegation of rape that occurred on 23 March 2009’ after the formalities were concluded and well before any admissions against interest were made. He was immediately thereafter cautioned for the second time.
Furthermore, it is tolerably clear judged from extracted or paraphrased portions of the interview above, that the accused took the opportunity to denigrate the complainant, whilst remaining guarded as to his own position. Whilst at times he expressed confusion, it is clear from watching the video that he was willing to answer questions. In addition he expressly indicated a desire to proceed despite being afforded the opportunity to telephone a ‘relative or friend’ as well as his lawyer, and indeed to have his lawyer present during the interview. Accordingly no basis arises upon which to exclude the interview as a whole. Moreover in the circumstances, had it arisen, the only proper exercise of the discretion to exclude would have been unfavourable to the accused.
Fairness to the accused
Matters stand somewhat differently with respect to the period in time after the police returned to the room. As noted, they made a decision to confront the accused with the substance of the material they had obtained from the bedroom recording which was given to them by the complainant beforehand and which they had obviously listened to. They did this by putting allegations to him of much the same kind as they had earlier, without first telling him they had it, and after they did without offering him the chance to listen to it. Had they done so, his response suggests that he would probably have immediately exercised the right to silence.
That conclusion is most evident from the response towards the end of the interview when they confronted him with the fact that there was such a recording and after a few more questions:[45]
[45] ROI p 23.39-24.7
QWould you have threatened her.
AI don’t know. Probably. I never mean anything by it.
QWhat sort of things would you say to her.
AI’d like my lawyer.
QOkay, not a problem.
AI don’t like where this is heading. I’d like my lawyer.
QYou don’t want to answer any more questions.
ANo thank you.
It may be accepted that when making enquiries, police are entitled ‘to employ all legitimate investigatory skills’, which may well ‘involve the non-disclosure of information known’ to them: R v Szach.[46]However this interrogation had from the very outset ‘hardened into an interrogation … [of a person] … charged with the crime’.[47] As the Chief Justice went on to observe in Szach:[48]
A stage may come, moreover, in the course of police inquiries when some degree of disclosure is requisite. If the investigation proceeds successfully, it will reach a stage at which the police are satisfied about the nature of the crime which has been committed and believe that it was committed by a particular person. It then becomes necessary to interrogate that person, with a view to laying the foundation for charging him with the crime unless in the course of the interrogation he is able to exonerate himself. I think that at the stage of commencing such an interrogation, the dictates of fairness differ from those applying to the earlier stage of the investigation. The focus of the investigation has changed. The investigation has passed beyond the stage of merely putting questions with a view to eliciting useful information. It has hardened into an interrogation of a particular person who is likely to be charged with the crime unless he can exonerate himself. The requirements of fairness change in accordance with the changed situation. While the police are merely seeking information, fairness involves no more than that the questions asked be fair questions, that the person questioned be given a fair opportunity to make the reply which he desires, and that his answers be faithfully reported. When the prime suspect is being interrogated with a view to charging him, the emphasis changes. The decision which he must make as to whether to exercise his rights to silence becomes a crucial consideration. It is important that he should take the care in considering and formulating his answers which is appropriate to the seriousness of his position. Fairness to the suspect, in those circumstances, requires that he be made aware of the nature of the crime concerning which he is to be interrogated. These considerations led White J. to exclude confessions in Reg. v Fieldhouse and Reg. v Hart . I think that fairness may often require that the suspect be told the nature of the crime under investigation at an earlier stage than that at which the investigating officer is required to give the caution.
[46] (1980) 23 SASR 504 at 582
[47] Above at 583
[48] Above at 583 (citations omitted)
The situation here was quite different to what it was in Szach and the stage of the inquiry was far more advanced. The police must have been wholly satisfied that rape had been committed by Mr Coutts, because the recording was so graphic and telling. They therefore had a complete foundation for charging him, as they did at the very outset of the interview. They were entitled to proceed as they did to a point, but as King CJ made so clear in the above passage, by the time the interrogating Detectives had returned to the interview, the dynamics were such that in order to effectively exercise his right to silence thereafter, the only way to make him fully aware of the nature of the alleged crime was to play the tape to him. The requirements of fairness had changed to the point that ensuring the effective use of his right to silence became acute.
But there is another consideration dictating the same conclusion. It was the position in the United Kingdom under the Judges Rules first formulated in 1912, that when police wish to bring to a suspect’s notice a written witness statement with respect to the offence under investigation, the police should:[49]
… hand to that person a true copy of such written statement, but nothing shall be said or done to invite any reply or comment. If that person says that he would like to make a statement in reply, or starts to say something, he shall at once be cautioned or further cautioned as described by Rule III(A).
[49] Archibald Criminal Pleading Evidence and Practice (36th Ed) 1964, para [1119]
Of course the Judges Rules were never elevated to the status of rules of law - they were merely rules propagated for the guidance of police. And yet, it was always within the discretion of trial judges to exclude statements obtained in breach of the Judges Rules: R v Winkel,[50] R v Brown & Bruce,[51] R v Wattam,[52] R v Straffen.[53] Usually police standing orders operate as well with respect to such procedures, but they were neither proved nor raised by counsel in this case.
[50] (1911) 76 JP 191
[51] (1931) 23 Cr App R 56
[52] (1952) 36 Cr App R 72
[53] [1952] 2 QB 911
The English position was adopted into Australian law with reservations. The High Court in McDermott v The King[54] regarded the Judges Rules as furnishing a standard of propriety, but not so as to lead to a duty to reject confessional statements in cases of breach. By the same token ‘nor will adherence to them necessarily prevent it’: Van Der Meer v The Queen.[55] In R v Lee[56] the High Court added that in exercising a discretion to exclude, the question was ‘having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused’. As noted by Brennan J in R v Collins:[57]
What is relevant is not so much a failure to observe rules or guidelines, but rather the unfairness in treatment of the confessionist. That is not to deny the utility of guidelines, such as the Judges Rules, but the court is not concerned with their enforcement so much as with the consequence of non-observance.
[54] (1948) 76 CLR 501 at 514-515
[55] (1988) 62 ALJR 656 at 669
[56] (1950) 82 CLR 133 at 154
[57] (1980) 37 ALR 257 at 313
These principles were affirmed in Van Der Meer v The Queen.[58] Indeed Wilson, Dawson and Toohey JJ noted that the Judges Rules ‘are regarded by the judges as a yardstick against which questions of impropriety and unfairness may be judged’.[59]
[58] (1988) 62 ALJR 656
[59] Above at 666
That position also applied in this State as can be seen from the judgment of Wells J in R v Williams:[60]
Treating as a guide the High Court's attitude towards the standing orders referred to in R. v. Lee I am of the opinion that the circular should be regarded as similar to the so-called Judges' Rules drawn up by the Judges of the Kings Bench Division at the request of the Home Secretary and promulgated in 1912. Those Rules have, ever since their promulgation, been regarded, not as inflexible rules of law, any breach of which would automatically vitiate a confession or admissions, but as setting general standards of reasonableness and fairness which were to be applied with due regard to the exigencies of each particular situation. It has for long been uncontested law that a breach of the rules forms but part of the material upon which, first, the trial judge resolves the issue of voluntariness, and, secondly (and perhaps more often), the trial judge determines whether, in the exercise of his discretion, he will exclude the confessional material tendered.
This statement of principle was accepted as a current statute of the law by the Full Court in Walker v Marklew.[61] There were however differences in police practices in the United Kingdom, as noted by Wells J in R v Lavery.[62]
[60] (1976) 14 SASR 1 at 6-7 per Wells J, citations omitted
[61] (1976) 14 SASR 463 at 466 (Bray CJ), 473 (Jacobs J) and 481 (King J)
[62] (1979) 20 SASR 430 at 459-460 (The rules are reproduced at 20 SASR at 457-468)
Having extracted denials from the accused and practically covering the field of the allegations against him, the fairer course for the police to have adopted was simply to have told him of the existence of a recording, invited him to listen to it and to make any comment upon it in accordance with the procedure suggested in the Judges Rules. That is precisely what King CJ suggested in analogues circumstances in R v Brown:[63]
Anything in the nature of pressure or importunity must be avoided, but the interrogating police officer is not obliged to take the first denial as final, nor is he precluded from conveying to the suspect that he is in possession of information, if that be the truth, and the substance of that information. If the police officer desires to base questions upon information received from a suspected co-offender, he should permit the suspect to read the statement as directed by the judge’s rules and should then put any specific question based upon that statement which it is desired to put.
[63] (1988) 146 LSJS 326 at 329
The oft-cited joint judgment of Stephen and Aickin JJ in Bunning v Cross[64]identifies deliberate disregard of the law, unlawfulness or unfairness induced by mistake as opposed to deliberate disregard of the law, whether the illegality affected the cogency of the evidence, whether the evidence was vital to conviction as opposed to a perishable or evanescent, whether there was a deliberate ‘cutting of corners’ by the interrogators, the ease of compliance or otherwise with due procedure, and the nature of the offence charged, as factors relevant to the exercise of the broad discretion to exclude evidence.[65]
[64] (1977) 141 CLR 54
[65] Above at 78-80
In this case it would have been easy enough to confront Mr Coutts with the recording, however there was no unfairness at earlier stages. Certainly there was no ‘cutting of corners’ involved. Nevertheless for the reasons articulated earlier the fairer course was to confront Mr Coutts with the recording rather than to reiterate allegations already put and denied.
There is a further consideration. If confronted with the fact that there was a recording and by then playing it, the accused who was earlier in two minds about inviting a lawyer to be present, would probably have exercised his right to silence. Alternatively had he been so confronted, the opportunity would necessarily have arisen enabling him to correct his position had he wanted to.
Furthermore, to allow the entire interview to be placed before the jury would have run the substantial risk that they might infer from the exclamation ‘I don’t like where this is heading’, an adverse inference against him. That process of reasoning would fundamentally undermine his right to remain silence: R v Ireland,[66] Petty & Maiden v The Queen.[67]
[66] (1970) 126 CLR 321 at 333
[67] (1991) 173 CLR 95 at 99
As their Honours go on to say:[68]
The focus of the two discretions is, however, different. In particular when the question of unfairness to the accused is under consideration the focus will tend to be on the effect of the unlawful conduct on the particular accused whereas, when the question of the requirements of public policy is under consideration, the focus will be on “large matters of public policy” and the relevance and importance of fairness and unfairness to the particular accused will depend upon the circumstances of the particular case.
[68] (1997) 192 CLR 159 at 181
There is in any event a further danger that the continuing denials would be taken by the jury as overwhelming evidence of a consciousness of guilt that could not be overcome by any directions, no matter how stern they might have been. These considerations are heightened by the fact that the accused had already been charged. These three considerations serve to being about the kind of forensic disadvantage envisaged by Toohey, Gaudron and Gammow JJ in Swaffield & Pavic v The Queen.[69]
[69] (1998) 192 CLR 159 at 159 [94] and 197-198 [78]
Accordingly the interview from the moment the police returned to the interview room will be excluded on discretionary grounds. In any case the latter portions of the interview should be excluded on grounds of unfairness. A careful consideration of the interview disclosed unfairness to the accused in at least two respects. The first is the effective loss of choice to remain silent. That has been dealt with already. The second is taking Mr Coutts over the same ground again, created unfairness in as much as the accused may well have felt locked into his denials and thereby bound to adhere to them. And as already mentioned the procedure adopted by the police served only to deepen the well of denial to the point that the jury may have given incurable prominence to them.
As explained in the joint judgment of Mason CJ, Deane, Dawson, Toohey and Gaudron JJ in Foster v The Queen,[70] the first of the discretions to exclude confessional evidence arises when reception would be unfair to an accused. It is a discretion unconfined to unlawfully obtained evidence and it operates in addition to the discretion to reject unlawfully obtained evidence on public policy grounds
[70] Above at 180
Therefore as Brennan CJ explained in Swaffield & Pavic v The Queen:[71]
The fairness discretion would then focus on cases where the conduct which induces the making of a voluntary confession throws doubt on its reliability and thereby establishes the unfairness of using the confession against the confessionalist on his trial.
Furthermore as Toohey, Gaudren and Gummow JJ explained in that case:[72]
While unreliability maybe a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted.
Similar statements were made in Duke v The Queen.[73]
[71] (1998) 192 CLR 159 at 181 [27]
[72] Above at 189 (citations omitted)
[73] (1989) 180 CLR 508 at 513
The effect of failing to play the recording to Mr Coutts was to bring about the unfairness described above and moreover it was more than likely that had it been played, no further confessions would have been made. There was a risk of unreliability in as much as Mr Coutts was locked into a position of denial as well as the substantial risk of misuse by a jury.
Conclusion and orders
The recordings of the events of 23 March and 26 April 2009 will be admitted into evidence, since they were clearly made in the lawful interests of the complainant and are of exceptionally high probative value. The latter part of the interview with the accused will be excluded in the exercise of discretion because of the failure to play the recording of 23 March to Mr Coutts, on account of resultant unfairness to him.
3
23
1