R v CS

[2019] NSWDC 875

District Court

New South Wales

Medium Neutral Citation:	R v CS [2019] NSWDC 875
Hearing dates:	20 September 2019
Date of orders:	20 September 2019
Decision date:	20 September 2019
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	The unfair prejudice outweighs the probative value of the evidence and therefore the defence application to exclude the evidence is granted.
Catchwords:	CRIMINAL LAW – Judgment - Application to exclude evidence – Pretext phone call - Surveillance Device Warrant - Recorded telephone conversations between complainant and accused – Oppressive conduct – Admission obtained in consequence of impropriety - Coercive behaviour – Proper records not maintained by police with regards to surveillance device – Coercive and threatening texts – Unfairness - Misleading statements – Falsehoods told by the complainant to the accused – General right to silence subverted – Denial of procedural rights – Complainant regarded as agent of the State
Legislation Cited:	Crimes Act 1900 Evidence Act, 1995 Surveillance Devices Act, 2007 UN Charter of Human Rights
Cases Cited:	Christie v Leachinsky [1947] AC 573 DRF v R [2015] NSWCCA 181 DSJ v R and NS v R [2012] NSWCCA 9 Duke v The Queen [1989] 180 CLR 508 EM v The Queen [2007] 232 CLR 67 Em v The Queen [2007] HCA 46 Employment Advocate v Williamson [2001] 111 FCR 20 Habib v Nationwide News (2010) 76 NSWLR 299 Higgins v The Queen [2007] NSWCCA 56 Juric (2002) 129 A Crim R 408 Pascoe v Little (1983) 3SASR 211 Patel v The Queen [2012] 247 CLR 531 Pavic v R (1997) 192 CLR 159 Pavitt v R (2007) 169 A Crim R 452 Pfennig v The Queen [1995] 182 CLR 461 R v Broyles [1991] 3 S.C.R 595 R v Burton [2013] NSWCCA 335 R v Dewhirst [2001] VSC 172; 122 A Crim R 403 R v DRF [2015] NSWCCA 181 R v GH (2000) 105 FCR 419 R v Heaney & Welsh [1998] 4 VR 636 at para 647. R v Helmhout (No 2) 2000 NSWSC 225 R v Herbert [1992] SCR 151 R v JF [2017] NSWCCA 217 R v Juric [2002] VACA 77; 129 A Crim R 408 R v Laird (1839) NSWLR 354 R v Lee [1950] 82 CLR 133 R v Paris (1993) 97 CR App R 99 R v Smith (1959) 2QB 35 R v Swaffield [1998] HCA 1; 192 CLR 159; 151 ALR 98; 72 ALJR 339 (20 January 1998) R v William Anderson (2008) QDC 137 R v Ye Zhang [2000] NSWSC 1099 Roba (2000) 110 A Crim R 253 Van Der Meer v The Queen [1998] 62 ALJR 656
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions CS
Representation:	Counsel: Mr A McCarthy – Crown Mr P Strickland SC, with Ms A Francis - Accused   Solicitors: Director of Public Prosecutions Nyman Gibson Miralis - Solicitors
File Number(s):	2015/317860
Publication restriction:	STATUTORY NON-PUBLICATION ORDER RE IDENTITY OF COMPLAINANT

Judgment

Ruling on admittance of evidence

1. HIS HONOUR: The accused is charged with three counts of sexual intercourse with a child under the age of ten years in contravention of s 66A of the Crimes Act 1900 (NSW). He was arraigned before me on 8 September 2019 in the absence of a jury panel and pleaded not guilty to each count. The accused applied to have two covertly recorded conversation between the complainant and himself excluded at trial pursuant to various provisions of the Evidence Act, 1995 which I will refer to from now on as "the Act". To that end, the accused sought, unopposed, the Court's leave, which was granted, that there be a hearing on the voir dire conducted.

2. During the course of that hearing the Court heard evidence from the complainant, from Detective Senior Constable Stacey Baker, the nominated officer in charge of the case, and Detective Senior Constable Shelley Fort who seems to have become at least the de facto OIC since Detective Baker moved to the Tweed Heads Local Area Command in 2017. In the course of the hearing I also listened to all of the conversations recorded on 3 October 2015 and relevant parts of the conversation recorded on 20 October 2015.

3. Before the commencement of that hearing it was necessary to resolve issues of access to some documents, including protected confidences made by the complainant. Additionally, a failure by the Commissioner of Police to comply with various subpoenas meant the late emergence of relevant material during the preliminary hearing.

Relevant Background Facts

4. The Crown alleges that between February and April 2000 the accused digitally penetrated the complainant. Two weeks later he is alleged to have performed one act of digital penetration and one act of penile/vaginal penetration on the complainant. The complainant did not disclose these incidents to anyone at the relevant time. Various statements of the complainant and other witnesses are disclosed, as are transcripts of the relevant covertly-recorded conversations as part of voir dire exhibit A.

5. On 28 March 2010 the complainant made a complaint to a friend, RG, that she was touched by the accused. This was the first time that any complaint of impropriety on the part of the accused had been made. On 29 March RG contacted her aunt, a Detective Senior Constable Bozikis, who advised that the complainant should report the matter to her parents and to the police. To DCS Bozikis the complainant made no allegation of penetration, notwithstanding efforts on the part of that detective to ascertain what had happened between the complainant and the accused. The complainant did not follow up the intervention of Detective Bozikis and did not report the matter to police at that time.

6. The complainant, in due course, made a statement to police on 10 February 2015 alleging details of the allegations that give rise to the counts on the indictment to which I have referred. The complaint made is inconsistent, in part, with the complainant's evidence on the voir dire as to her recollection of events. On 8 September 2015 police were granted surveillance device warrant SD15/0247 which I will refer to as "the SDW". Material, being voir dire exhibit G, tendered on the voir dire suggests that the complainant, while at Lake Illawarra Police Station, attempted to make at least three calls to the accused pursuant to the SDW, although neither the complainant nor Detective Senior Constable Fort, who I will refer to hereafter as "Fort", were able to remember these events. The s 44 report pursuant to the surveillance device warrant, which is voir dire exhibit E, prepared by Fort pursuant to that warrant, is silent as to these events, as are any relevant duty book entries or COPS event entries finally produced by the Commissioner.

7. On 12 October 2015 the complainant attended Lake Illawarra Police Station and made a phone call to the accused. The call was believed to be accepted by the accused, however, when the complainant identified herself, the person taking the call allegedly terminated the call. The s 44 report records an activation of the surveillance device for approximately 12 minutes. The actions undertaken during that period remain, for all relevant purposes, unexplained by Fort.

8. On 13 October 2015 at 8.30am the complainant and the accused exchanged a number of text messages. They arranged to speak on the phone later that evening. Relevantly, the complainant texted twice to the mobile number attributed to the accused (see voir dire exhibits 6 and 7). On 13 October 2015 the complainant attended Lake Illawarra Police Station later in the day and made a phone call to the accused. This conversation was recorded and is the first of the two conversations the subject of the application for exclusion. The accused and the complainant agreed, as a consequence of things said during that conversation, to, in due course, meet in person.

9. On 20 October 2015 the complainant met with Fort and with Detective Senior Constable Shane Scard. The complainant was fitted with a recording device. The complainant met the accused and had a conversation. That conversation was recorded and Fort recalled that it was possibly monitored whilst being undertaken by the police, although her evidence on that topic is less than clear.

The Applications

10. The accused sought to have both recording of 13 October 2015 and 20 October 2015 excluded at trial pursuant to a number of different provisions of the Act:

a) Section 84 - oppressive conduct,

b) Section 85 - reliability of admissions.

During the course of oral argument I observed to Mr Strickland, SC, who appears with Ms Francis for the accused, a provisional view that an application pursuant to s 85 did not seem likely to succeed on the facts in this matter. In due course that application was not pressed, and accordingly I will not rule on it.

c) Section 138 - admissions obtained in consequence of an impropriety,

d) Section 90 - unfairness discretion concerning the circumstances in which the admissions were obtained

e) Section 137 - probative value outweighed by danger of unfair prejudice.

11. The Crown opposed the applications. Ultimately in written submissions the Crown did not press for admission of the first recorded conversation of 13 October 2015 and proposed that the various denials made therein by the accused should properly be before the jury as facts agreed between the parties. The Crown pressed for admission of the second conversation and submitted that the applications for exclusion on the various bases mooted should not succeed.

12. The Crown accepted the legal principles relied on by the accused which in large part inform this decision. The Crown contended the facts would be found differently than as contended for by the accused, and that the relief sought ought to be denied. Although each provision must be considered separately the Act is to be seen as a whole, and it must be said that there is significant evidential overlap which underpins the contentions of the parties and the determination of the Court.

Summary of Accused’s Contention

13. In short, the accused contended that the complainant had lied to the accused and intentionally induced him by those lies to make admissions (see s 138 subs (2) of the Act). In so doing it was put that the complainant otherwise pressured the accused emotionally by having earlier engaged in coercive behaviour for the purposes of s 84 the Act, that such conduct was undertaken with the objective of obtaining admissions from the accused and was undertaken in ways that, used objectively, were sometimes simply grasping for some general acknowledgement of wrongdoing.

14. The accused contended that the complainant in the conversations was engaging in a ruse and adopting emotionally persuasive techniques to induce admissions (see s 90 of the Act). It was further submitted that it would be impossible in the trial to quarantine what was said by the accused from the artifice engaged in by the complainant (see ss 90 and 137 of the Act) and from the content of lengthy representations made by the complainant which would otherwise not have been admissible.

15. The prejudice in allowing the evidence of the conversations - that is things said by the complainant and things said by the accused - identified was a contention that the jury would be left with the complainant's pretence as evidence capable of proving critical disputed facts in issue. It is said to be unfair, having regard to the circumstances in which the admissions were made, to allow the evidence at trial, pursuant to s 90.

16. The accused accepted that such covert operations as were employed here sanctioned a degree of deceit for purposes of detecting crime (see for example the judgment of Simpson J in R v DRF [2015] NSWCCA 181 at para 95). However, it was put that in the instance of this case there are evidential consequences that put in jeopardy the possibility of a fair trial by the risk of unfair prejudice (see ss 90 and 137 of the Act).

17. The accused maintained that the complainant was promoting falsehoods and engaging in a highly emotive strategy to persuade the accused to help her by making his "acknowledgement". The jury might well be persuaded, it is put, of critical disputed facts in issue by things said by the complainant and the way they were said, central aspects of which are false and otherwise inadmissible, including by the real prospect of inducing maximum and impermissible levels of sympathy for the complainant.

18. It was contended that there was a real risk that the techniques that the complainant employed would build up among the jurors two feelings that were identified. First, great sympathy for the complainant arising out of her apparent terrible suffering, and that this suffering is more likely to be caused by the accused because he was apparently persuaded by her entreaties to ultimately make some kind of recompense by way of a generalised admission of poor conduct.

19. In short, the evidence is said to be prejudicial in two senses: first, the jury is likely to give the evidence more weight than it deserves, and second that the nature or content of the evidence is wont to divert the jurors from their proper task. The accused contended that directions to the jury will not be able to address or ameliorate the risks of misuse in this matter precisely because the evidence is persuasive, was designed to be so and in ways that would generally be inadmissible. In sum, and in light of the identified circumstances, it was contended for the accused there would be unfairness in admitting the evidence against the accused because:

1. The accused's right to silence had been impugned,

2. The accused was induced to make admissions,

3. The accused's admission are [likely to be] unreliable.

20. Although the Crown conceded some difficulties with the way that the complainant engaged in questioning in the first conversation recorded, the Crown's position was that that pressure had not invoked at that time admissions, and indeed that the accused felt able, in those circumstances, to make denials. The general Crown position was that whatever the effect of the conduct of 13 October 2015, which was not acknowledged to be oppressive or coercive, would have dissipated by the time the accused willingly chose to attend the meeting and have the conversation that was covertly recorded on 20 October 2015.

S 84 of the Evidence Act, Legal Principles

21. I now propose to deal with the various applications made. Section 84 subs (1) provides "evidence of an admission is not admissible unless the Court is satisfied that the admission and the making of the admission were not influenced by” among other things, oppressive conduct, whether toward the admission who made the admission or towards another person. S 84(1) of the act only applies if the party against whom the evidence of the admission is to be adduced has raised the issue as to whether the admission or its making was so influenced; (see s 84 subs(2)).

22. It is well settled that the oppressive conduct does not need to come from a person in authority or during "official questioning”, see R v GH (2000) 105 FCR 419 at 427, 428. Secondly, the oppressive conduct does not need to be the only influence on the accused. There may be other reasons by the admission was made; see R v Ye Zhang [2000] NSWSC 1099 at para 44.

23. Thirdly, once the accused raises the issue as to whether the admission or the making of it was so influenced, the Crown must prove on the balance of probabilities that the making of the admission was not influenced by the oppressive conduct, if such conduct is established; see Habib v Nationwide News (2010) 76 NSWLR 299 at 235 and R v Zhang at para 44. If the Crown does not discharge that onus, the effect of the section is that the admission must be excluded. Accordingly, no issue of the exercise of judicial discretion arises in those circumstances.

24. Fourthly, there does not need to be a significant level of impropriety demonstrated, or oppressiveness, for the s 84 to operate. The only question posed by s 84 subs (1) is whether the admission and its making were "not influenced by the oppressive conduct"; see Habib at para 241.

25. Fifthly, oppressive conduct is not limited to physical or threatened physical conduct, but can encompass mental and psychological pressure; see Higgins v The Queen [2007] NSWCCA 56 at paras 26 and 27.

26. The Macquarie Dictionary defines "oppressive" relevantly as being "burdensome; unjustly harsh; causing discomfort because; uncomfortably great or intense". In R v Paris (1993) 97 CR App R 99 ,a police interview which includes shouting, bullying and hectoring was held to be oppressive conduct, where the accused repeatedly denied his involvement and later made an admission; see also in that regard R v Helmhout (No 2) 2000 NSWSC 225.

27. Sixthly, oppression is a matter of degree and depends to a considerable extent on the precise circumstances of the questioning and the character of the suspect. See R v JF [2017] NSWCCA 217 at para 39. Finally, there is no requirement that the will of the accused needs to be shown to be overborne in order to satisfy the section; see Habib at 237.

28. The Crown in its written submissions indicated that it did not press for the admission of the conversation of 13 October 2015. It was proposed that if the conversation of 20 October 2015 were to be admitted, that the denials made by the accused on 13 October could be admitted, as I've already said, in an agreed facts document. While not conceding improper or oppressive conduct by the complainant or otherwise on 13 October 2015, the Crown contention was that if the Court found otherwise it was the case that any effect of the same would have dissipated by the recorded conversation of 20 October 2015.

29. Senior counsel for the accused indicated that the "remedy" proposed by the Crown did not resolve unfairness to the accused because he would be denied the jury understanding the pressures it was said were applied to the accused on 13 October in the jury's assessment of any admissions led at trial in relation to the 20 October 2015 conversation, if admitted. Accordingly notwithstanding the vices in that material, it was contended for the accused that the entirety of the 13 October 2015 conversation would need to be admitted if the admissions of 20 October were to be ruled admissible.

30. Whilst Mr Strickland conceded the possibility of slightly editing that document, perhaps to take out some more egregious elements of the conversation, it was put that really the totality of that material would need to be before the jury to create a proper picture for them to assess the reliability or otherwise of the admissions made.

31. The accused contended that the effective oppressive conduct on 13 October continued to operate on 20 October 2015 and that on all the evidence, the Crown was not able to establish that such proscribed conduct did not influence the admission or the making of it. The accused identified features of the complainant's conversation on 20 October 2015 that were said to reinforce and continue earlier oppressive conduct and the effect of it on the accused. The common law provides some guidance as to the continuing effect of threats or oppressive conduct on the admissibility of later confessions.

32. In R v Laird (1839) NSWLR 354 in the context of determining the admissibility of a second confession after a first confession was determined to be inadmissible, having been obtained after an impermissible inducement, Windeyer J made observations at p 358 that it was for the Crown to establish that the pre‑existing inducement ceased to operate on the confessor.

"It appears to me the Crown in order to have the confession admissible on the ground that the inducement had been removed should have proved that Senior Constable Radford gave the prisoner to understand he must now allow anything that had been said to him by Duffy to operate on his mind."

33. In R v Smith (1959) 2QB 35 at paragraph 41, the English Court Marshall Appeal stated the Court thinks the principal to be deduced from the cases is really this: that if the threat or promise under which the first statement was made still persists, when the second statement is made then it is inadmissible. Only if the time limit between the two statements the circumstances existing at the time and the caution are such that it can be said that the original threat of inducement has been dissipated can the second statement be admitted as a voluntary statement.

33. I take the view that the common law about persisting inducement has a clear analogy in terms of determining the effect of prior oppressive conduct. The question will always be whether the prior influence (in this particular case an inducement is still operating on the mind of the accused person at the particular time of making the second admission); see Pascoe v Little (1983) 3SASR 211, citing both Laird and Smith with approval.

34. The oppressive conduct in this instant case was said to be constituted by the complainant asserting among other things that:

1. She could only talk to the accused alone or stop "hassling him" if he talked to her. Page 1 of the transcript of 13 October, p 27 of the transcript of 20 October;

2. By intended implication if the accused did not talk to her she would talk to the police;

3. An acknowledgement by the accused of general wrongdoing was a necessary step to alleviate her debilitating symptoms, which included panic attacks. Transcript of recording of 13 October, pp 3, 4, 8 and 9 (in R v William Anderson (2008) QDC 137 at para 21, a similar statement was held to be an implied threat);

4. These symptoms were severe and were having real negative financial, sexual and psychological implications for the complainant. Transcript recording of 20 October, pp 27, 29 and 38. And;

5. She would continue to suffer from those symptoms from the mere exposure of seeing the accused unless he acknowledged his guilt in private conversation with her. It was put on behalf of the accused that the complainant's conduct needs to be seen in the context of the longstanding relationship between the complainant, the accused and their respective families, which the complainant acknowledged in evidence on the voir dire.

36. The accused's family had been very close to the complainant's family for a long time, although the complainant had become estranged from the accused and his family in more recent years. [material redacted]. The accused was known to be steeped in the rituals and teachings of that church, which included teachings of empathy, sympathy and compassion.

37. The accused told the complainant during the conversation recorded on 20 October 2015 at p 48 "I ask God forgive, forgiveness for what I've done but asking God is one thing. Still that's not resolution, is it? I have to make it right with whomever I've affected in this case, you." I accept that background was relevant, was taken into account by the complainant in the way that she questioned the accused and cannot be excluded as having an effect on the way that the accused responded.

38. A regrettable feature of this case is the police failed to keep proper records of the use of the surveillance device in breach of s 44(1)(b) of the Surveillance Devices Act, 2007 in relation to s 44 report and failed to document all contact and attempted contact as between the complainant and the accused. Consequently, the Crown cannot reliably establish what and when the complainant communicated or attempted to communicate with the accused before such time as the listening devices were activated or even while activated on 12 October 2015.

39. That together with a failure to record relevant attempts of communication or successful attempts of communication by text from the complainant to the accused impairs the capacity of the Crown to discharge the burden it faces under s 84 of the Evidence Act. Between 9 and 21 September 2015, see voir dire exhibit G, the complainant attempted to contact the accused several times by telephone whilst she was at a police station. There is no record of such a contact in the s 44 report. Fort's statement makes no reference to any such attempts and she claims to have no recollection of any such attempt or attempts.

40. The evidence discloses that no record of such attempts has been recorded in any duty book or COPS entry that has been provided by the Commissioner of Police, pursuant to subpoena. The content of any messages left by the complainant to the accused in that period remains unknown. According to the s 44 report, between 5.03pm and 5.15pm on 12 October, the surveillance device was activated. Fort's duty book reveals, "Telephone phone call by KP." Fort gave evidence that on 12 October 2015 the complainant attended Lake Illawarra Police Station and attempted to call the accused.

41. That the recording malfunctioned after Fort had plugged it into the computer, and that the file was unreadable or corrupted. Fort made no record of the malfunction in any police record, whether a notebook, duty book or the s 44 report itself. Fort cannot sensibly account for the 12 minute duration of the activation of the device on that occasion. Anything recorded by the activation of the device on that date has not been produced.

42. On 13 October 2015 at 8.30am, the complainant sent a text message;

"Please answer your phone, Tino, I really need to speak to you. I need to get this off my chest so I can move on with my life. Why don’t you talk to me? I just need closure. Talk to me so I can get past this. I don’t have anyone else to talk about it with. I don’t want to have to talk to anyone else. Please, I would rather sort it out with you not with anyone else. Please answer your phone."

43. Then a second text, "If you don’t answer I'm coming to your house tonight." It is likely, as I have said, that that was not the first message or attempted communication sent by the complainant to the accused, and apart from the other records, it is partly because the language "I need to get this off my chest" suggests some prior communication on this topic. The complainant initially denied that this message was intended as a threat to the accused. In due course, she admitted that she did intend to convey that if the accused did not talk with her she would go to the police.

44. Critically, the content of the message contained a deliberate untruth, namely that she had not talked to anyone else about the matter. In fact, the evidence disclosed she had. By the time of these conversations with the accused, the complainant had been consulting Dr Jessica Gray and in fact, talking to the police. She had also talked to her friend, RG, to Detective Bozikis and to another counsellor, one Julie Taylor. Shortly after that message was sent the complainant texted to the accused, as I have said, "If you don’t answer I'm coming to your house tonight."

45. The complainant admitted that this was also a threat designed to intimidate the accused into answering her phone call. She knew that there was a "pretty good chance" that this message would intimidate him. According to the complaint, these text messages, which I find to be coercive and threatening, were sent with the approval of the police. The complainant testified that she had composed both text messages at Oak Flats at the Lake Illawarra Police Station in the presence of Fort. The complainant showed Fort both messages before sending them.

46. Fort's duty book on 13 October 2015 at 10.15am records, "Contact OIC, call victim re: SMS POI." POI should be understood as a reference to the accused. Fort said that she does not recall the complainant showing her the text messages. Fort otherwise condoned the complainant's ultimatum, "If you don’t answer I'm coming to your house tonight" and testified that apart from issues with the complainant's potential safety if such a course were activated, that there nothing inappropriate in her sending such a message to the accused. During the 13 October 2015 telephone call, the complainant made a different type of threat to the accused.

47. The way the accused summarised it in written submissions was that the effect was, "Unless you admit that you sexually abused me and say you're sorry for doing this, I will not leave you alone and will continue to hassle you." The complainant said to the accused at p 1 line 17 of the transcript of 13 October 2015, that she would leave him alone and would not hassle him anymore if he talked to her. Then at p 7 line 27 said, "Like I'll leave you alone, I just need clarity, I just wanted you to tell me, yeah, 'I fucked up'. 'I'm sorry.' Like that's it, I will leave you alone."

48. The complainant would not accept the accused's denials that he had done nothing wrong. The recorded conversations, when played, although not necessarily apparent on the face of the transcripts, reveal that any denial by the accused appears to cause the complainant visceral pain. She said on various occasions "Don't do this to me" (p 3 line 29) or "Come on" (p 3 lines 18 and 27) or "Just acknowledge it" (p 3 line 31).

49. I consider that the pressure put on the accused by the complainant escalated as the conversation continued. The complainant clearly expressed the view that, unless the accused made some admission or acknowledgement, she would continue to suffer. She said at p 4 lines 1 to 4, "I need closure." At p 4 lines 23 to 28 she said:

"Tino, I just need you to tell me what you did so that I can move on. I don't want to be feeling like this. I want to be able to walk around and not be stressed every time I see you. Like I saw you in town and I had a panic attack and I had…".

50. These words were said by the complainant with great apparent emotion and the accused responded, "My goodness, K, this is odd. This is - I'm in shock…" At p 6 lines 3 to 4 the complainant literally begged the accused to make admissions so that she could understand what was happening. "Just explain it to me so I can understand please. Please, just like, please, I am begging you." The complainant admitted in evidence that by "begging him" she was calling on her longstanding relationship between herself and the accused and between their families.

51. Again on 13 October at p 6 lines 16 to 17 the accused stated that he felt he was being forced to make a confession, and in reply at p 6 lines 18 to 19 the complainant said, "I'm asking you to help me move on." At p 6 line 30 she said, "I want you to say it [an acknowledgement of guilt] because then when I look at you I, I know that it's okay." At p 7 she went on to say:

"I just, like I've acknowledged my mistakes thinking that's why I feel the way I feel. That's why I feel empty, but I just want you to acknowledge to me, 'Yeah, I fucked up,' or, 'Yeah, whatever,' or, 'I'm sorry and I shouldn't have done it.' Like, and then if I look at you it'll be like, and then if I look at you, like then it'll, I'll, it'll end it. Like, I just, I won't have these feeling. Like I will know that's okay. Okay, that's it."

52. The complainant agreed that when she said those words she was intending to convey to the accused that the real reason she wanted to speak with him was that only he could help her, that only he could give her closure, that only her could stop her feelings. The complainant was intending to place a great psychological burden on the accused, namely, to confess for her betterment. I find that she did so by appealing, or seeking to appeal, to the better part of him, drawing on her long earlier relationship with him.

53. At p 8 line 28 to p 9 line 2 the complainant’s tone, in my assessment, could be described as anguishing and despairing. She says that she cannot move on, that she has left so many jobs, that she has disturbed visions of the accused. She said, "I feel so shit all the time." She said in a voice that I assess to be laden with emotion, "I've tried so hard to just do this without having to, without having to talk to anyone or just do anything about it but I just, I needed to talk to you. I just needed to ask why like…". It is at that point of the conversation that the accused proposed to have a conversation and meet face to face with the complainant.

54. The Crown relies on the fact that the accused proposed the meeting of 20 October 2015 and attended voluntarily as factors that militate towards considering that the admissions ultimately made on 20 October 2015 were not influenced by the conduct of the complainant on 13 October 2015. It is to be noted that, on my finding, the accused attended the meeting after the complainant had made two false representations, at transcript pp 12 and 13, that it would be just the two of them having a conversation and the meeting would be "just with me".

55. The complainant did not concede that these conversations were misleading on the basis that she did speak alone with the accused on 20 October 2015 and that she drove to that meeting alone (notwithstanding that she met with police immediately before and after the meeting at a location close by). Notwithstanding a lack of acknowledgement by the complainant, I find that those statements were intentionally misleading. This deceit was over and above the implicit deception involved in the covert recording of conversations per se in this type of operation. That is because the accused was seeking assurances about the confidentiality of the meeting and the complainant intentionally misled him about that. The accused said to the complainant in relation to that proposed meeting, "I hope I can give you, help you out with whatever you're after," at transcript p 13.

56. While all of the countervailing factors and evidence need to be considered, I am not ultimately persuaded that the Crown has established that the earlier conduct, which I find to be oppressive, of 13 October 2015 failed to influence the admissions for some reasons that I will articulate shortly. On 15 October 2015 at 8.22am the complainant arranged to speak to the accused at 4pm at his request. Fort's duty books (only obtained at the end of the third day of the hearing) record a meeting with the complainant at 8.15am. There is no record about what was said between the complainant and Fort on that day.

57. From a further entry in Fort's duty book, "1600 POI phone call interface with KD", it is not clear if a further conversation, in fact, took place between the accused and the complainant at 4pm or shortly thereafter on 15 October 2015. Fort does not recall the complainant calling the accused. Such a conversation may have happened but not necessarily, on her account. There is no record of that call or any meeting on 15 October 2015 in Fort's relevant statement. There is no reference in the s 44 report to any activation of the listening device on that day. The poor recordkeeping by Fort gives the Court no confidence whether such a conversation did or did not take place. Voir dire exhibit 7 suggests a missed call was received by the telephone service then operated by the accused at 4.17pm on 15 October 2015.

58. On 20 October 2015 the complainant continued conduct consistent with her behaviour on 13 October 2015. The accused characterises her as applying the same kind of emotional psychological pressure on the accused to make an acknowledgement or admission so that she could heal herself and put things to an end without the involvement of others. At p 26 of the transcript of 20 October 2015 the complainant tells the accused that her memories of what happened to her are "freaking me the fuck out". She told the accused, "I get over shit pretty easy but I can't get over this and I couldn't work out why and I don't know so I just thought, like, I wanted to talk to you…" and at p 27:

"I just wanted to mend this so I could say all right, you've acknowledged that, yes, like, 'I did do that,' but let's get over it 'cause I don't want, like I really don't want to have to go and spend like a hundred bucks, 170 bucks a week on counselling and shit…".

59. She told the accused of the terrible nightmares that she had suffered (see p 28), the serious problems she had encountered in her romantic/sexual relationships (see p 29). "I just want to get over it to be able to like if I see you in the street or whatever I'm not going to have a panic attack" (p 29.5). The Crown cannot prove that the admissions that followed the statements above were not "influenced by" that pressure. Those statements are just the tail end of accumulated pressure imposed on the accused by the complainant from at least the text messages on the morning of 13 October 2015.

60. The accused is recorded as saying at p 29, "I know, yeah. I never want to hurt anybody. I don't want to cause trouble to anybody. I, I make a huge sinner. I'm always got countless faults and I struggle…". The accused then said he tries to correct himself and become a better person. The complainant then seems to play on their relationship of many years ago and their common heritage by saying, "Yeah, but we all do 'cause that's how we're brought up." The accused and the complainant then got out of the car while talking on 20 October 2015.

61. The accused then says to the complainant that he cannot recall the things that the complainant recalled, presumably referring to the recollections that she sets out at pp 28 and 29 of the transcript. He again then apologised at p 31, saying, "But you guys were over at the house all the time. I don't know what to say so I'm so sorry." The complainant again rejected that apology as being insufficient, saying, "Yeah, but, but sorry, like just throwing a sorry out there." The complainant, again in what I find to be an emotional tone, refers to her suffering and how the accused can alleviate that suffering by making admissions to her:

"But that's why I want to understand like what do you, what do you remember doing, because I have my memories and I live it every day. Like I live certain actions that I do certain things when I hear…I've stopping doing a lot of things because of it and that's why I wanted to talk to you and just say like I want to know why."

62. I would characterise the texts sent to the accused by the complainant on the morning of 13 October 2015 as containing both emotional pressure and a threat. I find a number of sentiments expressed by the complainant on both 13 and 20 October 2015 and extracted above as emotionally coercive and oppressive for the purposes of s 84 of the Act. Some of those statements also involve active misstatements designed, at least in part, to pressure the accused to make admissions, which matters are more germane to the other statutory bases applications for exclusion.

63. The continuation of similar oppressive expressions on 20 October 2015 mean, in my view, that the Crown is unable to establish that the conduct of 13 October 2015 did not continue to operate on the mind or to influence his admissions at the time he made admissions at that later date of 20 October 2015. I find that the admissions were made by the accused in the context of coercive conduct on behalf of the complainant, which can be characterised as oppressive, including that the accused was the only person who could provide either closure or clarity to the complainant.

64. Although the complainant may well have had a collateral interest in such matters, I find her principal motivation for engaging in the conversations in the way that she did was part of a sustained attempt to elicit admissions from the accused using methods that would clearly have been improper if utilised, say, by an interviewing police officer.

65. It was contended for the accused that the complainant's references to her emotional distress and past self‑harm could be seen as threats of violence "against another person", to wit, the complainant herself, for the purposes of s 84(1)(b). Although it is arguable that such comments could be viewed in that way, I prefer to assess them as oppressive conduct for the purposes of s 84(1)(a) alongside the other conduct that I have identified as oppressive.

66. The absence of records and any satisfactory explanation about whether there were other recorded conversations between the accused and the complainant apart from those on 13 and 20 October 2015 makes it even more difficult for the Crown to establish that the admissions made on 20 October 2015 were not "influenced" by the unwarranted psychological pressure imposed on the accused.

67. The Crown conceded that there was some psychological pressure exerted by the complainant in the conversation of 13 October 2015, but contended that no admissions were elicited as a result. It was contended however that given that the accused proposed the meeting and then attended voluntarily that any coercive effect of the conversation had dissipated by the next recorded conversation which contained admissions. It was also relied on by the Crown that the admissions were elicited in response to the complainant effectively setting out at some length the allegations that she had made against the accused.

62. The Crown concedes that the accused has, for the purposes of s 84 (2), of the Act, raised in the proceedings an issue about whether the admissions by the accused or the making of them have been influenced by prescribed conduct such that a consideration of s 84 (1) is properly engaged. I find that the Crown has not established - notwithstanding matters put in support of that - on the balance of probabilities that the admissions that followed the statements that were made by text on 13 October 2015 and then orally on both 13 and 20 October 2015 were not "influenced by" that proscribed conduct as I have found established.

63. Given that I am not satisfied that such admissions by the accused and the making of them were not influenced by oppressive conduct towards the accused, the evidence of those admissions and the making of them is not admissible as provided by s 84 (1) of the Act. Accordingly, the evidence of the recorded conversations of 13 October and 20 October is not to be admitted. If I am wrong about that determination I turn to briefly consider the other bases on which the accused sought exclusion of the admissions.

Section 85 of the Evidence Act

70. As indicated, there is no need for me to further consider the accused application for exclusion of the admissions pursuant to s 85 the Act. Section 138 of the Evidence Act provides that evidence that was obtained

"(a) improperly or in contravention of an Australian law or

(b) in consequence of an impropriety".

71. I will extract the whole of that section down to the words "question to make an admission". The word "questioning" is not defined in the dictionary. the language of s 138 embraces any person. There is no requirement for the questioning to be conducted only by an investigating official for s 138 to be engaged; see Employment Advocate v Williamson [2001] 111 FCR 20 at para 86.

72. The accused identified various examples of falsehoods stated by the complainant during the course of the two recorded conversations. Although the Crown did not address this particular application in written submissions, the focus of the oral submissions was the contention that in considering the balancing exercise and taking into account the factors as set out at s 138(3), that the probative value of the admissions and their importance in the proceedings (given that they also provided potential corroboration for the complainant's account) would weigh heavily in favour of admission.

73. I find that the complainant in the instance of these conversations questioned the accused. This is not an example, as will sometimes be the case, of a complainant simply engaging a suspect in conversation. The complainant has acknowledged the following falsehoods during the text messages or conversation: First, that she lied in the text message of 13 October 2015 at 8.30am when she said "I don't have anyone else to talk to." A critical deception that the complainant maintained in the intercepted conversations was that she would "rather sort the matter out" with the accused and not anyone else.

74. Further, she lied at the beginning and during the telephone call of 13 October 2015 when she said that if the accused talked to her she would leave him alone and not "hassle" him. Further, the complainant testified that she lied when she told the accused at least twice during the first conversation at transcript p 2, lines 15 to 16 and p 5, lines 22 to 23, "I just kind of don't remember, like, what happened sort of thing. I just want to know what was going on when that was happening." The complainant acknowledged that she lied because she was trying to get the accused to make admissions which she knew were being recorded and could be used in a prosecution against her.

75. Fourthly, she lied when she said at transcript p 7, lines 4 to 13

"I just, like - I acknowledge my mistakes, thinking maybe that's why I feel the way that I feel. That's why I feel empty. But I just want you to acknowledge to me, yeah, you fucked up, or 'Yeah, whatever, but I'm sorry and I shouldn't have done it', like, and then if I look at you it will be like - and then if I look at you, like, it'll then - it'll end it just, like, like I just - I won't have those feelings. Like, I will know that's okay. Okay, that's it... I don't want this to be a massive deal. I just want to get it over."

76. The complainant acknowledged that she was intending to convey that if the accused made an acknowledgement to her, she would leave him alone and also that her pain would end. That fourth falsehood has particular importance in my assessment. During the call of 13 October 2015, and again during the meeting of 20 October 2015 she repeatedly asked the accused, indeed begged him, to acknowledge the hurt that he had caused her. She falsely assured him that if he did so there would be no consequences to him. She said that if he did that there would be a psychological benefit to her. The complainant either denied or equivocated that the latter was a falsehood.

77. I do not accept her evidence totally on that point. While I accept that there may have been a collateral psychological benefit that she sought if the accused acknowledged past misconduct, I find that in order to elicit admissions she prevailed falsely upon the accused in both conversations that her hurt and her psychological symptoms would in fact end if he acknowledged that he was the cause of them. The complainant asked the accused to fill in gaps which according to her account to police did not need to be filled in, and when the accused expressed himself as being unable to do so the complainant asked him, notwithstanding, to simply acknowledge her pain in some way.

78. A further fifth falsehood which is also important is that on 13 October 2015, when the accused suggested a face‑to‑face meeting between the two of them and asked the complainant at p 2 if it would be "Just the two of us are going to have a conversation", and then asked "And you'll be coming up on your own?" the complainant dissembled by saying "Yeah, just me". As indicated earlier, I reject this explanation by the complainant that she was intending to say that she travelled up by car herself and that made that a true statement. She, to my view, intentionally misrepresented a confidential nature of the proposed meeting.

79. Further, she lied when she told the accused at p 6 and p 31 of the transcript of 20 October, "Just explain to me so I can understand." I find each of the extracts that I have set out to exemplify falsehoods by the complainant. I find the admissions to have been obtained improperly because the complainant made false statements in the course of questioning which she knew or reasonably had known were false, and that the making of such false statements would likely cause the accused to make an admission, namely a statement adverse to his interest.

80. I consider that impropriety is not confined in this case to the false statements made by the complainant during the intercepted conversations but extends to a failure on the part of Fort in particular and investigators in general to play any part at all in assisting the complainant as to the proper limitations of questioning, including that she ought not intimidate the complainant by falsehood, that she ought not falsely represent her memory of events or create false impressions of events said to have occurred, that she ought not cross‑examine the accused beyond clarification of information given voluntarily; see for example the judgment of Brennan J in Duke v The Queen [1989] 180 CLR 508 - and further not to pressure offer obviously false inducements to the accused to make admissions.

81. As Iacobucci J observed in the Canadian Supreme Case of R v Broyles [1991] 3 S.C.R 595 at para 18, "It is the authorities who are in a position to control the actions of the informer. If they fail to do so they ought not benefit from that failure at the expense of the accused." The complainant knew or ought reasonably have known that the making of those false statements was likely to cause the accused to make admissions. The effect of the complainant's falsehoods that I have enumerated, particularly the third, fourth and fifth of them, are obvious to the complainant, given the responses that the accused makes and the tone in which he makes those responses.

82. On 13 October 2015 the accused ended the conversation at p 13 by saying "I never want to cause any kind of hurt to anybody and you know I hope I can give you - help you out with whatever you're after." On 20 October 2019 the accused again reacted to misrepresentations made by the complainant that only his acknowledgements could cause the complainant's pain to end.

83. The accused can be interpreted to be clearly disturbed by both the content and the tone of what the complainant says. At p 29 he is recorded as saying, "K, I never wanted to hurt anybody. I go to confession and ask God for forgiveness." And at p 30, "I'm not trying to excuse what things we do and whatever else." The complainant asked at p 30, "Do you remember doing that?" And the accused's response was "Not like the way you're describing it." The complainant then said further down p 30;

"That's why I want to understand. I want to understand because I can't see me doing anything like that. I've said that in countless ways to you, that I just want to understand why or why even me."

84. At p 31, the accused is recorded as saying, "I'm so sorry." The complainant rejected that apparently on the basis of a lack of specificity and she says, "Like, yeah, sorry but you just throwing a sorry out there." The complainant stated further on p 31.

"That's why I want to understand, like what you do, what you do remember doing because I have my memories and I live it every day. Like, I live certain actions, that I do certain actions, that I hear games."

85. It is immediately after that false statement that the accused commenced to make some generalised admissions. The complainant's of the effect of her statements on the accused is well illustrated in the following passage extracted from p 40 of the transcript of 20 October 2015. VIC, which is the complainant;

"For years I've wanted to know why what happened. I wanted you to admit it so I just knew that you'd go through your life every day without thinking about the same, even just a quarter of the time that I do."

86. POI, which is for the accused:

"Did I answer I destroyed something, a bond that we had between myself and you, I destroyed that, but that's not something I ever wanted or I do want. I want you to be at peace. All I can do is pray now. Is there anything else I can do for you?"

87. Put another way, the accused seems to be asking the complainant if by those words he has done what it is that she wanted him to do. At p 48, the accused is recorded as saying; "The whole thing is to get some closure for you and with whatever I can do, say, my actions, I don’t, I don’t know, I want to give you closure, you know?"

88. The accused later on that same page ask God's forgiveness for what he has done and says, "I have to make it right with whoever I've effected, in this case, you."

89. Finally, the accused says to the complainant at p 54, "I hope I have given you something you can work with", which seems to be some kind of acknowledgement to my mind that the accused was trying to meet the complainant's need in what he had to say.

Section 183(3) Factors

90. In conducting the balancing exercise required by the operation of s 138(1) of the Act, I am required to consider the non‑exhaustive list of matters mandated for consideration by s 183(3) of the Act. I find that the evidence is important given that it provides some extrinsic support for the complainant's account, as well as being an admission, and if admitted, would considerably increase the power of the Crown case. The nature of the proceedings involves the determination of allegations of serious criminal misconduct of a sexual nature against a young child.

91. Any assessment of the probative value of the evidence and the matters that the Crown relies on, in particular as admissions, require that the evidence be taken at its highest, bearing in mind the observations in DSJ v R and NS v R [2012] NSWCCA 9 at para 10. It is noted that in the circumstances of this case the evidence is not relied on for a tendency purpose. So general admissions of guilty passion may not be admissible in any event. In terms of the probative value of the admissions, I note that although generalised admissions, including an admission of breaching the trust of the complainant and touching the complainant "down there".

92. None of the admissions relate specifically to the particular allegations made by the complainant in her statement to police dated 15 February 2015. There is no admission of penetration whether digital or penile of the complainant's vagina or even any touching specifically of the vaginal area. The gravity of impropriety by the complainant in this case is serious and involved deliberately involving a false promise of no legal consequence as to there to being no adverse consequences to the accused if he made some acknowledgement. This was coupled with a false assertion of a psychological remedy being available to the complainant.

93. Those representations were made absent any instruction at all from investigating police, including there being no guidance after the police were aware of the complainant's questioning technique on 13 October 2015 in advance of the covertly recorded meeting of 20 October 2015. The improprieties of Fort in failing to provide such guidance to the complainant and her record keeping being so incomplete in terms of compliance with the SDW, and with a consequent difficulty in understanding the degree and nature of contact between the complainant and the accused at any time between 9 September and 12 October 2015 was at the least reckless.

94. The impropriety of Fort served to compound the effect of the more serious impropriety of the complainant. There is a significant public interest in deterring police officers from permitting the type of questioning that occurred in this case, particularly in an investigation of this type in which the accused's general right to silence is being subverted by the covert methodology employed. In that event, other incursions to the accused's rights assumed greater seriousness.

95. There is no indication as to whether any proceeding has been or is likely to be taken in relation to any of the impropriety identified, and I take the view that it is unlikely no submissions were made on the issue, but I doubt the improprieties that I have found represent a serious breach of the UN Charter of Human Rights. Balancing the matters identified really represents weighing two competing public interests, that is, the public interest in the prosecution of serious allegations. Having prosecution of serious allegations, having available to it all proper evidence to advance the chances of proving such serious allegations.

96. The countervailing public interest is the right for an accused to have his or her rights protected and to receive a fair trial when facing serious allegations. In this matter I consider that the admissions have been obtained at too high a price. I consider that the desirability of admitting the admissions such as they are does not outweigh the undesirability of not admitting the evidence given the manner in which it was obtained. That being so, it follows that the evidence of the recorded conversations of 13 October 2015 and 20 October 2015 is not to be admitted. If I am wrong about that determination, I turn briefly to consider the other bases on which the accused sought exclusion of the admissions.

Section 90 of The Evidence Act

97. Section 90 provides that 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 as is the case here; and b) Having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. The concept of "Unfairness" is not defined in the Act. The majority of judicial statements concerning the ambient of the unfairness discretion point to a wide range of factors to be considered in the exercise of this judicial discretion.

98. The approach of Brennan J in Duke at para 513 is a good example. The unfairness against which the exercise of the discretion is intended to protect an accused may arise not only because of the conduct of the preceding investigation has produced a confession which is unreliable, but because no confession might have been made if the investigation had been properly conducted.

99. If by reason of the investigation it is unfair to admit evidence of the confession, whether because of the unreliability of the confession has been made suspect or for some other reason, that evidence should be excluded. Trickery, misrepresentation…, cross‑examination going beyond the clarification of information voluntarily given…, to name but some improprieties - might justify rejection of a confession if the impropriety had material effects on the confessor, albeit the confession is unreliable and was apparently made in the exercise of a free choice to speak or to be silent.

100. The fact that an impropriety occurred does not itself carry the consequence that evidence of a voluntary confession procured in the course of an investigation must be excluded. The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case. There are two overlapping considerations in determining whether we exercise a judicial discretion to refuse to admit the evidence which considering s 90 of the Act. The touchstone of the first consideration is a denial of important procedural rights which the accused generally possesses.

101. The touchstone of the second consideration is the reliability or lack thereof of the admission. In EM v The Queen [2007] 232 CLR 67 Gleeson CJ and Hayden J held at para 37 that unreliability was the important aspect of the unfairness discretion. Adopting what was said by Toohey, Gaudron and Gummow JJ in R v Swaffield [1998] HCA 1; 192 CLR 159; 151 ALR 98; 72 ALJR 339 (20 January 1998). This echoes the observation of Wilson, Dawson and Toohey JJ in Van Der Meer v The Queen [1998] 62 ALJR 656 at para 666.

"The question is not whether the police have acted unfairly, the question is whether it would be unfair to the accused to use this statement against him. Unfairness in this sense is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which effect the reliability of the statement."

102. See also R v Lee [1950] 82 CLR 133 at para 152 and Duke which I have already referred to at para 513.

The Legal Principles as to the Denial of Procedural Rights

103. The issue is whether the circumstances in which the admissions were obtained encroached on 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, bearing in mind all of the circumstances (see R v Swaffield [1998] HCA 1; 192 CLR 159; 151 ALR 98; 72 ALJR 339 (20 January 1998) at [91] per Toohey, Gaudron and Gummow JJ and Kirby J at [155].

104. When an accused is interviewed by the police he has certain rights. The most important of those rights is the right to choose not to speak to the police. He also has the right when arrested to be informed of the nature of the charge the police are investigating (see Christie v Leachinsky [1947] AC 573 at [587] and [588]). The accused submits that the covert recording by the police of his conversations with the complainant meant that he was denied the procedural right (a) of choosing whether to speak to the police, and (b) knowing that he was under investigation for particular charges. Although there is no questions that the conversations were recorded lawfully under a properly-obtained surveillance device warrant, s 3 of the Surveillance Devices Act provides that the Act is not intended to limit any discretion, such as the one at hand, which a Court has to admit or exclude evidence.

103. Another important feature of fair investigations is the importance of an interrogator not asking leading questions in an interview and ensuring that "the answers given by the accused [are] of his own accord and not as answers in which the accused was repeating what he had previously been told by somebody else”; (see Gleeson CJ and Heydon J in Em at [30]). In Swaffield the High Court at [83] considered the principles developed in two Canadian Supreme Court cases, R v Herbert [1992] SCR 151 and R v Broyles, which I mentioned earlier.

104. In the first of those cases Herbert, the accused, was arrested on a charge of robbery. He was informed, upon arrest, of his right to counsel at the police station. After consulting counsel he advised police he did not wish to make a statement. The accused was then placed in a cell within an undercover police officer posing as a suspect under arrest. The officer engaged the accused in conversation, during which the accused made various admissions implicating him in the robbery. The Supreme Court of Canada unanimously held that the admissions should have been excluded.

105. McLachlin J delivered the leading judgment in a passage that was relied on in Swaffield at [86]. Her Honour held that:

"The common law rules relating to the right to silence suggests 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"--

108. and then later:

"When the police use subterfuge in interrogating an accused after he has advised that he does not wish to speak to them, they are improperly eliciting information that they are unable to obtain by respecting the suspect's constitutional right to silence. The suspect's rights are breached because he is 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."

109. It is accepted that the constitutional right referred to in Herbert derives from the relevant Canadian Charter but, for all intents and purposes, is the same as the common law right to silence enjoyed by people in this State. It is also accepted that the facts in Herbert and some of these other cases to which I will refer relate to cases where an admission was made after a caution had been administered, whereas a different position pertains here.

110. In R v Broyles the accused was charged with murder. The Crown evidence included a statement which the accused made to a friend after he had been cautioned that he was not required to say anything. The friend visited the accused in prison at the request of police wearing a recording device. The friend questions the accused about killing the deceased. The admissions made by Boyles to his friend were excluded pursuant to s 7 of the Canadian Charter.

111. The Supreme Court identified two relevant questions which have effectively found their way into law here. The first is whether the friend was an agent of the State. The second is whether the accused's statement had been "elicited" by the friend. In relation to the first question, Iacobucci J held in Broyles at [608]:

"In determining whether 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. I would 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?"

112. In relation to the second question, Iacobucci J held that, to determine whether an admission was elicited, a number of factors had to be considered to answer the ultimate question, being:

"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?"

113. His Honour arranged the factors into two groups, which were emphasised as being "non‑exhaustive". He held 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 of the accused believed the informer would be playing would ordinarily have done? The focus should not be on the form of the conversation but 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?

In considering whether the statement in question was elicited, evidence of instructions given to the State agent for the conduct of the conversation may be important…and then, extracting something that I said on an earlier head of relief, it is for the authorities who are in a position to control the action of the informer. If they fail to do so, they ought not benefit from that failure at the expense of the accused."

114. The final paragraph that I have cited was not cited in Burton and so it is not binding on this Court, although it provides some helpful guidance in the particular circumstances of this matter where police arguably chose not to exercise any guidance or control over the questioning and communication choices of the complainant when engaged with the accused, whether by text, telephone or in person.

115. In Swaffield the accused was charged with a range of offences. He was discharged at committal when the police offered no evidence, and after that event the police began a covert operation in which Swaffield was one of the targets. A police officer concerned with the investigation of matters prevailed upon another police officer to have a conversation with Swaffield in which that person pretended that his brother-in-law down the coast was in trouble for burning a car. During those conversations Swaffield made admissions to being involved in a fire at the rowing club, which was the purpose of the investigation. The High Court concluded that the admissions made by Swaffield were elicited by an undercover police officer in clear breach of Swaffield's right to choose whether or not to speak to police (see [98]).

116. In the case of Pavic, Pavic was brought into custody and police conducted an interview with him in relation to his role as a suspected murderer. During that interview Pavic maintained his right to silence. Pavic was released from custody. Thereafter, a friend of Pavic's, James Clancy, spoke to police. At that time police believed that they had enough evidence to charge Mr Pavic with murder but they suggested to Clancy that he, on behalf of the police, speak to Pavic and carry a recording device. The High Court ultimately held that Clancy must be regarded as an agent of the State. "The meeting was not directly set up by police but Clancy spoke with Pavic at the request of the police who equipped him with a recording device."

117. The critical question was whether, as the State agent, the confession was "elicited" by Clancy or was made in the course of conversation. The High Court said, put another way, was there an interrogation of Pavic? The trial judge found that it could not be said that the admission had been volunteered by Pavic to Clancy as a result of or being inextricably linked to the express fear of Clancy that he may be charged with an offence. The High Court was not prepared to interfere with that finding.

118. Kirby J dissented in the case of Pavic. His Honour held that the confession should have been excluded. He agreed that it did not infringe upon the first set of factors expressed in Broyles because the inculpatory parts of the conversation were not a functional interrogation. However, Kirby J held that the admissions should be rejected because the circumstances in which they were obtained infringed the second set of factors in Broyles, in other words that there was an exploitation of the special characteristics of the friendship between Clancy and Pavic.

119. As Gleeson CJ and Heydon J said in Em at [56], "In any particular case, the application of s 90 is likely to be highly fact specific. In other words, it is on the particular facts of a case that the result must turn." That observation is certainly pertinent to a consideration of this matter. In R v Burton [2013] NSWCCA 335, Simpson J, in writing the leading judgment, held that, in determining whether to exclude admissions under s 90, two distinct inquiries were required. It will be seen that those questions effectively follow Broyles. First, was the evidence obtained by an agent of the State and, secondly, were the admissions elicited?

120. Admissions will have been elicited if relevant parts of the conversation were the functional equivalent of an interrogation and if the State agent, here the complainant, exploited any special characteristics of the relationship between that person and the excused to extract the admissions. Burton cited both Herbert, at para 107, and Pavitt, at para 70 I believe. In other words, this is a slightly different test to the test in the Canadian authorities, in the sense that there is a requirement under Burton for both factors to be satisfied in relation to elicitation.

121. On the facts of Burton, Simpson J held that the complainant in the case in the facts of that case was not an agent of the State. At para 124 and 125 her Honour observed:

"The evidence of Detective Egan Hurst was that he believed that there would in any event have been contact between the complainant and the respondent, and that the conversation concerning the events of [the relevant date] would have taken place. Given their personal and professional relationship this was a correct assessment. It was inevitable that the respondent would reply to the complainant as he did in the phone call. He had already communicated to her by text message to similar effect.

The exchange was therefore not materially different from what it would have been had there been no intervention of police. See Broyles, para 30. The intervention of the police did not bring about the respondent's admission. The intervention was limited to the timing of the conversation and the fact that it was recorded so that it could be used for evidentiary purposes.”

122. Further, Simpson J in Burton held that the admissions were not elicited. Her reasoning at para 127 was "Nor could it be said that the admission was elicited." Again, applying the tests proposed at Broyles, paras 37 to 40, the apology initially made by the respondent in the telephone conversation was made in response to the complainant's inquiry about why he was attempting to contact her. At that stage it could not be said that the complainant "Actively sought out information such that an exchange could be characterised as an interrogation." A second apology in the conversation was made in response to the complainant pressing the respondent to explain why he had done what she asserts that he did. What that assertion was was never spelt out. In no way could that be called "The functional equivalent of an interrogation."

123. There are a number of factual matters in Burton which are distinguishable from the facts of this case. First, 12 days before the telephone call where the accused - or the offender - made admissions in Burton, Burton had sent an apology text which invited the complainant to discuss the issues on the night that the alleged incidents took place; see paras 18 and 91. Further, Burton was the employer, mentor and best friend of the complainant.

124. Given the personal and professional relationship between them she is likely to have called him irregardless of any police intervention; see paragraphs [20] and [24]. The police intervention was relevant only to the timing of the conversation and the fact that it was recorded. That is the reason that the conversation was not materially different from what would have happened if there was no police intervention; see paragraph [125]. None of those factors exist in this case. In fact, although originally family friends the complainant and the accused had not been in contact for at least four years, and on last being in the vicinity of the accused but not present with him the complainant had no contact and asserted that she had a panic attack and left. Regular or social contact between them on that basis seems unlikely.

125. Further, in Burton the complainant did not actively seek out information from the accused. Critically, the relevant admissions by the accused were made before the allegations had been raised by the complainant in any conversation or any allegations had been put. Burton in that case said "I want to apologise. Maybe there have been some crossed wires. I would like to think we could still be friends and forget about all that.” In the index case the complainant actively sought out admissions from the accused, including making misrepresentations and inducements for him to do so. Further, in Burton the complainant did not lie or mislead Burton, whereas the complainant in this case, on my finding, did so toward the accused.

126. In Pavitt v R (2007) 169 A Crim R 452 McColl JA and Latham J determined in the facts of that case it was difficult to conclude that the complainant was an agent of the police. As the majority in the Court of Criminal Appeal they held even if the complainant was an agent of the police he didn't exploit any special characteristics of his relationship with the appellant. Second, the Court could not say that the conversation would have been materially different if as a matter of form the police had not arranged it.

127. The men involved in the conversation under review in this case had a relationship going back to their childhood, but importantly the appellant exhibited no unease in participating in the conversation. He was relaxed throughout it. He could have terminated the conversation at any time. The Court could not conclude that there was any inequality in the conversation. If anything it was the complainant who appeared vulnerable. Further, it was held that the conversation was not the functional equivalent of an interrogation. The complainant had clearly formed his ideas of what to say to the appellant during the conversation but that did not support the notion that the police had scripted what was a very long conversation.

128. In terms of scripting the issue is a little different here, whereas a failure to script conversation will sometimes be seen as not being an indicia of a person being the agent of the State here. Police officers seem to have empowered the complainant at least on 20 October 2015 to ask questions without guidance, notwithstanding their experience of hearing her behaviour in covertly recorded conversation with the accused on 13 October.

129. The language of s 90 and the policy underlying it does not require the Court to be satisfied than an admission can only be excluded under s 90 if the recorded conversation is:

a) The functional equivalent of an interrogation,

b) The complainant has exploited a special set of characteristics of her relationship with the accused.

130. In Broyles those two matters were part of a constellation of factors for the Court to consider, and although in the minority in Swaffield, Kirby J held that the first set of Broyles' factors - the functional interrogation did not apply in that case but the second set of factors did. There is nothing in the discussion of the majority judgments in Swaffield which would require the satisfaction of both conditions as a prerequisite to the exclusion of the evidence. In Roba (2000) 110 A Crim R 253, Coldrey J excluded admissions made by an accused to an undercover officer in a cell after he had made significant admissions during a formal record of interview.

131. The undercover officer posed as a confident, experienced criminal, fashioned the course of a two‑hour conversation in the cell between he and the accused, which led to further information from the accused about his own role in the offences, and that of his co‑offenders. His Honour also excluded admissions made by another co‑accused who was a suspect who had not been formally interviewed by police.

132. His Honour held that the deliberate decision by police to permit the undercover operative to speak to the accused rather than conduct a formal interview "constituted an effective circumvention of his procedural rights", that being the right to silence. In R v Dewhirst [2001] VSC 172; 122 A Crim R 403 the eliciting by an undercover officer who taped conversations with an accused in a police cell involved that officer:

"questioning the accused about the incident itself, drawing the conversation back to the topic whenever it went off on a tangent. Whatever occurred, in my view, was far more than merely facilitating the accused in his volunteering an account of events."

133. In that case Coldrey J excluded the interview even though the accused had already declined to exercise his right to silence and had answered some police questions. The latter surreptitious reinterviewing him in the cells without regard to his right of silence in an unstructured and informal setting led to the exclusion of those admissions. So also R v Heaney & Welsh [1998] 4 VR 636 at para 647. In R v Juric [2002] VACA 77; 129 A Crim R 408 the Court of Appeal applied both the Canadian decisions of Herbert and Broyles.

134. That Court applied the Broyles test to determine whether the person involved was an agent of the State, and also the Broyles test on the question of elicitation. Applying some of those legal principles to the facts of this case, the question first is was the evidence obtained by the complainant obtained by an agent of the State? Adopting the analysis of the High Court in Pavic at para 100, I consider that the complainant should be regarded as an agent of the State. I find that the two conversations between the accused and the complainant would not have taken place in the form and manner in which they did but for the intervention of the police, and that's for the following reasons:

135. First of all, the accused had not had any direct contact with the complainant prior to arguably some telephone contact in late September 2015 for about four years. Her evidence to the Court was that she obtained the accused's mobile number from her own mobile phone, however during the meeting of 20 October 2015 she told the accused that she obtained his telephone number after stealing "her father's mobile phone while he was on the mobile phone and accessing his number in that way."

136. Further, the complainant did not wish to have any contact with the accused. Around October, November 2014 she said that she had seen him walk past a cafe in which she was sitting that she immediately froze, could not contact - continue her conversation. She did not approach the accused but rather left the cafe in a hurry. Whilst I accept that the evidence disclosed is that the complainant had expressed a past interest in 2014 in confronting the accused, at a time before she had made a formal complaint to the police on 10 February 2015, I do not consider that the complainant having an interest in talking to the accused that was collateral to or even in tandem with her interest in obtaining admissions to advance the investigation or prosecution belies her status as an agent of the State.

133. The complainant was strategic in her approach to the conversation of 20 October 2015. She gave evidence that she, "Didn’t want to push him too far." "I was trying to be careful with how I approached him and questioned, I didn’t want him to lie." The fact that the police did not script the conversation with her or provide any guidance is a fact that on one view militates against my finding that the complainant was an agent of the State. The next question becomes, were admissions elicited? In other words, to borrow the language of Broyles and cited in Burton, were the relevant parts of the conversation, "The functional equivalent of an interrogation?"

134. There were two clear themes of the recorded conversation. First, the conversation was the functional equivalent of an interrogation in my view. As in Dewhirst, the complainant constantly drew the accused back to the issue of an acknowledgement of his wrongdoing. In neither conversation did the complainant facilitate or invite the accused to volunteer his version of events in a non‑leading fashion. To the contrary, when he made denials, they were met by protestations and importuning by the complainant.

135. Secondly, the complainant manipulated the accused by what I found to be a combination of false statements, threats and other tactics in order to obtain admissions from him. The details of the statements that are relied on are set out in my findings in relation to s 84 and s 138. In DRF v R [2015] NSWCCA 181, Leeming J articulated the significant of deceptive conduct on a complainant which bears upon a consideration of s 90 and this matter. Simpson J at 101 and 102 agreed with his Honour's observations. At paras 3 and 4 and following, his Honour said;

"Secondly, in every case involving a surveillance device the complainant will be aware of the fact that a recording is being made while the accused will not. There is inevitably an element of deception taking place. It is established that those facts alone do not render the use of a recording unfair, see for example, Em reference.in most, if not all cases where a complainant is equipped with a lawfully authorised surveillance device to record a conversation, the complainant will be motivated in part by animosity towards the accused (that is certainly the case here). This distinguishes the position from that of an undercover operative. I would not likely conclude that in those circumstances can there be s 90 unfairness.”

Then at para 4, his Honour goes on;

"I can readily imagine a spectrum of more or less deceptive conduct by the complainant which may at least arguably lead to the use of the recording being unfair (I am not taken to be implying that any of what follows applies to the particular complainant in this appeal. The complainant may chose a time at which the accused is particular vulnerable)."

140. His Honour goes on to some other examples:

“More subtly, the complainant may use words with special meaning or which are deliberately ambiguous. The complainant's words may be accompanied by unrecorded gestures or facial expressions so as to enhance the ambiguity of what is being conveyed with a view of controlling the subject matter and content and apparent meaning of the conversation. I do not regard the ambiguities to which I have referred as academic. It is sufficient to consider a case where a complainant believes correctly that he or she was indecently assaulted by the accused, but further believes incorrectly that he or she was much more seriously violated as well.”

141. To my mind it is easy to see how a complainant motivated by animosity and with the knowledge and desire to obtain as damaging an admission as possible, may in any particular case engage in conduct which would render the recording unfair. It seems to me if, as seems to the case from Burton, both of the matters about elicitation from Boyles apply. It is clear on the basis of things that I have recorded elsewhere in this judgment that the complainant did play on the particular family relationships between herself and the accused in undertaking the conversations that she had with the accused.

142. It will follow from what I have already said that I consider that the conversations were elicited by the complainant. The admissions were elicited from the accused by the complainant, her then being an agent of the State.

What is the Unfairness to the Accused in Admitting the Recorded Statements?

143. As I have indicated, the complainant in both of the conversations was engaging in a ruse in adopting emotionally persuasive techniques in order to, among other things, induce admissions. It was put by the accused that it would be impossible to quarantine what was said by the accused from the artifice that was engaged by the complainant. I accept that submission. It was also put that there was a real risk of the techniques the complainant employed in the circumstances in which the admissions were obtained would build up amongst the jurors to feelings.

144. As I have set out earlier, first, great sympathy for the complainant arising from her apparent terrible suffering, including panic attacks, "Cutting herself", feelings of emptiness and inability to enjoy sexual relations, fears, nightmares and flashbacks. Secondly, that this suffering was caused by the accused. The submission was made that such evidence would not generally be admissible for trial, but in the way that it is led as representations to make sense of admissions made.

145. Furthermore, the complainant admitted that some statements that she made to the accused, as I have already identified, were lies. Some of those lies were undoubtedly material, those lies were part of a highly emotive strategy to persuade the accused to help her by making some acknowledgement of misconduct to her. The strategy employed by the complainant and not prohibited or controlled by the police rendered the conversation recorded unfair. Often in weighing the judicial discretion as to whether to admit an admission adduced by the prosecution where there is unfairness in the circumstances in which the admission is made, the Court will consider whether the unfairness can be ameliorated by appropriate jury direction.

146. In Patel v The Queen [2012] 247 CLR 531, the High Court recognised that there will be cases in which the long accepted principle that juries will comply with directions given to overcome potential prejudice will not necessarily overcome some levels of unfairness to an accused. The plurality in Patel held at para 113;

"Despite the fact that the trial judge gave careful and succinct directions as to some of the most prejudicial evidence, such as evidence of errors in surgery, it cannot be concluded that the directions were sufficient to overcome the prejudicial effects of the evidence individually and collectively on the jury."

147. Hayden J in Patel at 244 observed;

"The prejudicial effect of evidence, ellipses, was so extensive that it could not be cured, there was no point in seeking special directions. Those directions could only remind the jurors of what some might have forgotten. It would have been self‑defeating to ask the jurors to bring the prejudicial evidence to their minds and having got it clearly fixed there, ask them then to put it out of their minds."

148. To my mind such principles have relevant application to many of the representations made by the complainant which would not otherwise have been admissible, but achieve potential admissibility, pursuant to s 81(2)(b) of the Act. The unfairly prejudicial effect of some of the complainant's representations potentially admissible in that way, that is, admitted to make sense of the accused's admissions (whether true, false or at least true to her) cannot be overcome by careful direction, as will often be possible. Here, as in Patel, directions would only serve to remind and then perhaps even emphasise to the jury the existence of the prejudicial material.

149. I accept the contention advanced by the accused that it is impossible in this trial to quarantine what was said by the accused or in the artifice engaged in by the complainant and the inherent prejudice to the accused that flows from it. I have determined to exercise my discretion to refuse to admit evidence of the admissions of the accused and the evidence adduced to make sense of them. Having regard to the entirety of the circumstances I have identified in which the admissions were made, it would be unfair to the accused to admit that material. I do so pursuant to s 90 of the Act.

150. In case I am wrong in that determination, I turn to consider very briefly the last basis for exclusion advanced by the accused.

Section 137 of the Evidence Act, Legal Principles

151. S 137 provides that in a criminal proceeding the Court must refuse evidence adduced by the prosecution if it is outweighed by the danger of unfair prejudice. In terms of the "weighing" process required by the terms of s 137 of the Act, McHugh J in Pfennig v The Queen [1995] 182 CLR 461 at paras 528 and 529 observed;

"If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge, the interests of justice require the trial judge make a value judgment not a mathematical calculation. The judge must compare the probative strengths of the evidence with the degree of risk to a fair trial if the evidence is admitted."

152. I repeat the observations that I made for the purposes of s 138 as to the probative value of the evidence. The danger of unfair prejudice rests on the effect of leading evidence of admissions acquired in circumstances as analysed above for the purposes of s 90, and by the methods identified in the analysis for the purposes of s 84. That said, a greater focus is available for the purposes of s 137 of the Act (rather than s 90). In relation to the many and various representations by the complainant, whether as to her memories, her feelings, her motivations (some of which are admitted by her to be false), made to the accused to elicit admissions from him.

153. As observed above, many of those out of Court statements would never have been admissible but for their potential admissibility under s 81(2)(b) of the Act. I assess there is a very real danger those representations and misrepresentations are apt to be used by a jury impermissibly to find critical disputed facts in issue in favour of the prosecution. I further consider that the jurors may adopt sentiments of sympathy for the complainant, as analysed earlier, that create a danger of unfair prejudice to the accused.

154. I repeat my observations that such matters are not likely to be sufficiently ameliorated by even careful jury directions consistent with the observations of the High Court in Patel. In undertaking an assessment required by the exercise at s 137 of the Act, I consider that the probative value of the evidence if outweighed by the risk to a fair trial of the accused arising from the danger of unfair prejudice to him. That being so, I must refuse to admit the evidence of the covertly recorded conversations of 13 and 20 October 2015, on that basis.

**********

Decision last updated: 28 April 2020