R v DF
[2014] NSWDC 149
•12 September 2014
District Court
New South Wales
Medium Neutral Citation: R v DF [2014] NSWDC 149 Hearing dates: 6 August 2014 Decision date: 12 September 2014 Before: Colefax SC DCJ Decision: Order, pursuant to section 139(2) of the Criminal Procedure Act, that the recorded conversation between the complainant and the accused on 14 December 2012 not be admitted into evidence at the trial of the accused in connection with the matters upon which he was arraigned on 6 August 2014.
Catchwords: Pre- trial orders- Surveillance Device Warrant- conversation recorded pursuant to warrant- Surveillance Devices Act legislative background- whether recorded conversation impermissibly designed to deprive accused of his right to silence- tender of recorded conversation rejected. Legislation Cited: Surveillance Devices Act 2007; Listening Devices Act 1984; Evidence Act 1995; and Criminal Procedure Act 1986 Cases Cited: Pavitt v R [2007] NSWCCA 88; Swaffield v R (1996) 88 A Crim R; R v Shamouil [2006] NSWCC 112; R v LDV (No.2) [2013] NSWDC 215 Texts Cited: Second Reading Speech - Surveillance Devices Bill 2007 (14 November 2007); Report on Cross- Border Investigation Powers for Law Enforcement Category: Interlocutory applications Parties: Regina (Crown)
D.F (Accused)Representation: Crown: Mr C. Bailey of Counsel
Accused: Mr Lo Schiavo of Counsel
File Number(s): 2013/327957 Publication restriction: The names of the accused, complainant, the complainant's mother and any other matter which could identify those persons
Judgment
REASONS FOR JUDGMENT
Introduction:
To the extent necessary, I confirm the non-publication order previously made concerning the names of the accused and the complainant.
On 6 August 2014 the accused was arraigned before me on an indictment which contained six counts. In summary, those counts allege that between 1979 and 1982 the accused variously sexually assaulted his stepson (the complainant) who, at the time of the alleged sexual assaults, was between 9 and 11 years of age. Three counts allege that the accused sexually assaulted the complainant and committed an act of indecency on him; two counts allege that the accused committed an act of buggery with the complainant; and one count alleges that the accused had sexual intercourse with the complainant. The alleged acts giving rise to these charges include the accused fondling the complainant's penis; placing the accused's penis in the complainant's mouth; placing the accused's finger and then penis into the complainant's anus; and placing the complainant's penis into the accused's anus. Upon his arraignment the accused pleaded not guilty to each count.
Following that arraignment, at the request of the parties, I conducted a pre-trial hearing (cf section 139 Criminal Procedure Act (NSW) 1986). The purpose of that pre-trial hearing was to determine the admissibility of a conversation recorded between the accused and the complainant pursuant to a warrant issued under the Surveillance Devices Act (NSW) 2007.
The issues raised in the present pre-trial hearing are similar, but not identical, to those which I considered in R v LDV (No. 2) [2013] NSWDC 215.
There are, however, two significant differences between these two cases. One is that the surveillance device warrant was obtained and used in the present case in the full knowledge that the accused had exercised his right to silence - and the warrant was a deliberate strategy by the police to overcome the exercise of that right. The other is that the Crown has (fairly and correctly) conceded in the present case that the person deployed to use the device was an agent of the State.
In R v LDV (No. 2) I made a pre-trial order excluding the relevant evidence. Significantly, that ruling was not the subject of an appeal by the Crown pursuant to section 5F of the Criminal Appeal Act 1912 (NSW); nor (as I understand it) was any application made by the Crown to the subsequent trial judge that it would not be in the interests of justice for that pre-trial order to be binding (cf section 130A of the Criminal Procedure Act).
Accordingly, just as considerations of judicial comity would require another judge of this court to apply the reasoning in R v LDV (No. 2) unless that judge were of the opinion that I was clearly wrong or the facts made it relevantly distinguishable, I should also apply R v LDV (No. 2) unless I have come to one of those conclusions. For the reasons which I set out below, I have not come to either conclusion.
Background Facts:
On 20 December 2011 the complainant went to a police station and made a report regarding alleged historical sexual assaults upon him by the accused. A detailed Statement of Complaint was made to the police on 5 January 2012.
In that Statement the complainant, amongst other things, alleged that the accused had made admissions of wrongdoing to his (the complainant's) mother, a friend of the accused (Mr Fletcher) and the daughter of the accused. In addition, the complainant alleged that the accused had made admissions of wrongdoing to him.
On 2 March 2012 the police took a statement from the accused's wife. In that statement the accused's wife gave evidence of admissions in a general way to some of the acts alleged in the indictment (i.e. the accused admitted that he "did play" with the complainant - which I take to be an admission of fondling the complainant's penis; but he also said he "did not penetrate" the complainant - which I take to be a denial of the digital and penile penetration of the complainant's anus. According to this statement, the accused did not address the allegations of his placing his penis in the complainant's mouth or placing the complainant's penis in his - the accused's - anus.).
Also in her statement, the accused's wife asserted that the accused had made admissions to his daughter, to Mr Fletcher, and also to Mr & Mrs McKimm. The nature of those alleged admissions was not specific.
On 24 May 2012 a solicitor acting for the accused wrote to the then police officer-in-charge of the investigation informing him that, in response to a request to be interviewed, the accused wished to exercise his right to silence and that consequently the accused would not be participating in any interview or attending any police station for that purpose.
As I have already noted, in this respect, the present case is different from the factual circumstance in R v LDV (No. 2). In that case the police anticipated that the relevant accused may wish to exercise his right to silence - and thereby set in-train the steps which ultimately led to three pretext phone calls to that accused being recorded pursuant to a warrant issued under the Surveillance Devices Act; whereas in the present case the accused actually had exercised his right to silence (after taking legal advice).
On 25 June 2012 the police took a statement from Mr Shepheard. Mr Shepheard is a person to whom the complainant made complaint about the accused when the complainant was about 17 or 18 years of age. On this occasion, and following the revelation by the complainant to Mr Shepheard of the allegations, the complainant telephoned the accused and verbally confronted him about those allegations. During the course of that conversation Mr Shepheard alleged in his statement that the phone was then given to him (that is Mr Shepheard) and, in the course of a resulting verbal confrontation initiated by Mr Shepheard, some very generalised admissions were made by the accused.
I earlier referred to the fact that both the complainant and the complainant's mother alleged in statements which they made to the police that the accused had made admissions of wrongdoing to Mr Fletcher. Mr Fletcher was interviewed by the police and a statement was made on 1 August 2012. There is no admission by the accused to Mr Fletcher recorded in that statement.
I also earlier mentioned that in the statement made to the police by the accused's wife/the complainant's mother, there was an assertion that admissions had been made by the accused to his daughter and to Mr & Mrs McKimm. There is no specific evidence that the police made any enquiry of any of those people.
It was with that background that Senior Constable Gillett (who had taken over as the officer-in-charge of the investigation) made an affidavit on 21 September 2012 in support of an application for a warrant to be issued under the Surveillance Devices Act.
In that affidavit, Senior Constable Gillett recorded that the accused's wife had made a statement on 2 March 2012 in which partial admissions were allegedly made. Moreover, the affidavit revealed that the accused had been contacted by the police and had, through his lawyers, expressly exercised his right to silence.
The affidavit did not, however, reveal that (unspecified) admissions had allegedly been made to the accused's daughter and to Mr & Mrs McKimm; nor that generalised admissions were made to Mr Shepheard.
The affidavit further went on to say that the police intended implementing a "strategy" to generate a conversation between the complainant and the accused and that that strategy in turn involved the use of two surveillance devices on or about the body of the complainant.
The affidavit contained the following paragraphs:
"...
33. I am of the opinion that there are no alternative means of obtaining the evidence or information sought to be obtained. There are no witnesses or forensic evidence to support this investigation.
34. The information sought to be obtained under the warrant would assist the investigation of the relevant offence by reason that information collected through the use of the surveillance devices would enable evidence to be obtained of the commission of those offences.
35. I am of the opinion that the evidentiary value of any information sought to be obtained will be high.
..."
To the extent that the affidavit did not refer to the unspecified - and un-investigated - admissions allegedly made to the accused's daughter and Mrs & Mrs McKimm - nor the generalised admissions made to Mr Shepheard - the affidavit was not as comprehensive as it might have been.
On 21 September 2012 Hall J issued a warrant under the Surveillance Devices Act. I do not speculate as to whether that warrant would have been issued if the subject of the previous paragraph had been disclosed to his Honour.
Almost three months after the warrant was issued, namely on 14 December 2012, police officers fitted two listening devices to the body of the complainant. One of those devices was capable of transmitting audio product and the other was capable of recording audio product. The police then tested the devices to ensure that they functioned correctly. The police then drove the complainant to the accused's house and the subsequent conversation was recorded - and transcribed.
It is the admissibility of that recorded conversation which is the subject of the present pre-trial hearing (see particularly pages 27 to 31 inclusive of the relevant transcript).
In that conversation, the accused did not admit to any specific act of criminality but rather, in a general way, admitted to non-specific wrongdoing not inconsistent with some, if not all, of the complainant's allegations. Put another way, those admissions were not inconsistent with the admissions, denials and non-responses allegedly made by the accused to his wife as recorded in her statement of 2 March 2012.
In the course of the pre-trial hearing, Senior Constable Gillett was called to give evidence.
During the course of his cross-examination, Senior Constable Gillett agreed that one of the objectives of the recording was to get an admission from the accused (see T11:20; 12:45). In another part of that cross-examination he agreed that the listening device had been obtained to get around the accused not cooperating with the police (by which I think it is reasonable to infer that that was a reference to the accused exercising his right to silence: see T12:10; 13:15).
At this point it might be appropriate to set out the following extract from my judgment in R v LDV (No. 2):
"45. In order to place the submissions in relation to the Notice of Motion and my ultimate decision in context, it is helpful to understand the legislative background to the Surveillance Devices Act which replaces the Listening Devices Act 1984.
46. In November 2003 a Joint Working Group of the Standing Committee of Attorneys-General and the Australasian Police Ministers' Council on National Investigation Powers published a Report on Cross-Border Investigative Powers for Law Enforcement.
47. The report was prepared following the earlier publication of a discussion paper by the Joint Working Group in February 2003 entitled "Cross-Border Investigative Powers for Law Enforcement".
48. The report issued by the Joint Working Group makes clear that the matter of concern was to facilitate the use of surveillance devices by law enforcement agencies in cross-border investigations of substantive [emphasis added] criminal organisations, terrorists, drug manufacture and importation and other significant organised criminal activity.
49 The Joint Working Group, however, noted that the model law attached to the report might be further amended by individual States so as to extend the surveillance regime to intrastate activities. A fair reading of the report was that any such intrastate activity to which the model law would apply would be similar serious criminal activity.
50 When the Surveillance Devices Bill 2007 was presented to the New South Wales Parliament, it was expressly noted in the explanatory notes accompanying the Bill that it was intended to apply not only to cross-border investigations but also to "local investigations". Again a fair reading of those notes in the specific context of the report and the model law is that the intrastate activities to which the Bill was intended to apply would be similar to the kind of interstate activities specifically identified as justifying the model law.
51. In introducing the Bill to the New South Wales Legislative Council on 14 November 2007, the then Attorney-General in his Second Reading Speech, inter alia, said:
'Serious crimes like murder, terrorism, drug manufacture and importation make it essential that our law enforcement agencies have every possible tool at their disposal to make the investigations and prosecutions as successful as possible.'
52. The Attorney-General also said in that speech that:
'Surveillance is a critical factor in major investigations and emerging technologies are being used to track suspects in increasingly sophisticated ways. Surveillance device warrants under the new legislation will permit the use of surveillance devices on specified vehicles or premises, on specified objects, such as containers that might be used for drug manufacturing, to record conversations and to monitor activities. These new laws will also allow police and law enforcement agencies like the Police Integrity Commission, the Independent Commission Against Corruption and the New South Wales Crime Commission to use surveillance warrants during cross-border operations. This means that they will be able to fight and track crime across the country without the red tape burden of having to get a warrant in other states.
It will also recognise warrants from other states and territories in New South Wales, meaning greater cooperation between Australia's law enforcement agencies. This kind of cooperation is of paramount importance not only in confronting the very real threat of an act of terrorism occurring on Australian soil but also in tackling the important and major organised crime being committed across our borders. This new Bill will assist that operational needs of police by regulating new technology, which is needed to track, monitor and investigate serious crime, and to match the increasingly sophisticated techniques used by criminals. ... We all know that criminals do not operate within borders or rules, and this Bill gives police better flexibility to be able to front these criminals without the burden of cumbersome red tape restrictions ...'
53. Specifically, nothing was said by the Attorney-General that the use of surveillance warrants would become a day-to-day tool in the conduct of investigations by police in relation to any matter as they saw fit, including what one might refer to as run of the mill criminal investigations.
54. With these observations, it is appropriate to refer to what I regard as the relevant specific provisions of the Surveillance Devices Act 2007.
55. Importantly for the determination of the issues raised in paragraph 4 of the accused's Notice of Motion, section 3 of the Act specifically provides that the Act is not intended to limit any discretion which a court has to admit or exclude evidence.
56. Section 4 defines what a listening device and a surveillance device is within the meaning of the Act. There is no real argument in this case that the equipment used by then Sgt Bowles was anything other than such a device.
57. Section 7 of the Act generally prohibits a person from installing or using a listening device. However, section 7(2) does not apply that prohibition in circumstances where the installation, use or maintenance of the listening device was undertaken in accordance with a surveillance device warrant.
58. Part 3 of the Act is concerned with, amongst other things, surveillance device warrants. Such a warrant may be issued by, amongst others, a judge of the Supreme Court.
59. Section 17 of the Act enables a law enforcement officer to apply for the issue of a surveillance device warrant if that officer on reasonable grounds suspects or believes that, amongst other things, an offence against the law of New South Wales, the Commonwealth, or any other state or territory has been or is about to be committed and that "the use of a surveillance device is necessary for the purpose of an investigation into that offence to enable evidence to be obtained of the commission of that offence or the identity or location of the offender" (cf section 17(1)(a) and (c)).
60. Section 19 provides the criteria to be applied by the relevant judicial officer in determining whether to issue a warrant. The criteria include:
'(a) the nature and gravity of the alleged offence in respect of which the warrant is sought, and
(b) the extent to which the privacy of any person is likely to be affected, and
(c) the existence of any alternative means of obtaining the evidence or information sought to be obtained and the extent to which those means may assist or prejudice investigation, and
(d) the extent to which the information sought to be obtained would assist the investigation, and
(e) the evidentiary value of any information sought to be obtained, ...'
61. Section 21 of the Act defines what a surveillance device warrant authorises. Amongst other things, that includes "the use of a surveillance device on or about the body of a specified person" (cf section 21(1)(e)).
62. Significantly, section 21 also provides that each warrant, per se, authorises the connection of the device or equipment to a telecommunication system or network and the use of that system or network in connection with the operation of the surveillance device or enhancement equipment (cf section 21(3)(h))."
The Issues:
The primary issue raised by counsel for the accused was whether the relevant evidence should be excluded because of the unfair way in which it was obtained - (cf section 90 of the Evidence Act) and in this respect specifically calls in aid my decision in R v LDV (No. 2).
The Crown has submitted that I wrongly decided R v LDV (No. 2) in taking into account in the exercise of discretion the relevant second reading speech and the various reports giving rise to the legislation. I have already noted that the Crown did not appeal that decision. I am not persuaded that my reasoning in that case and in particular [92] to [95] was clearly wrong. In those particular paragraphs I said:
"92. There is nothing extraordinary about the present allegations against LDV or of the investigative issues surrounding them. Although serious to LDV and the complainant, they are entirely unremarkable alleged offences.
93. If Parliament had intended to reduce or extinguish the right of silence of all accused persons, and not just the alleged perpetrators of the types of serious criminal activity specifically nominated in the report and referred to in the Second Reading Speech to which I have referred, it would need to be, in my view, very expressly stated. Because of that specific legislative history the dicta in previous authorities collected in Pavitt v R [2007] NSWCCA88, are in my respectful opinion distinguishable.
94. Moreover, contrary to the Crown's submissions, in my opinion I am entitled to take the report and the Second Reading Speech into account - not to interpret the words of the Act, but to inform the court in the exercise of the residual discretion specifically preserved by s3 of the Surveillance Devices Act.
95. Further, for the court to permit the Crown in the present case to adduce into evidence the subject of the present application would be to acquiesce in that very substantial alteration, if not extinction, of those rights of this accused without a clear and proper basis. Or as Fitzgerald P said in the judgment under appeal in Swaffield v R (1996) 88 A Crim R, it would be too unfair to permit the accused of losing his privilege against self-incrimination through trickery - a statement expressly approved by Toohey, Gaudron and Gummow JJ at para 80 of that judgment."
Those paragraphs are directly applicable to the present case. Indeed, I regard the circumstances of this present case (where there is a frank admission that the complainant was used as an agent of the State together with a further frank admission that the use of the surveillance device was a strategy to overcome the accused's exercise of the right to silence) even more clearly requires the exclusion of the evidence by reason of the combined effect of section 3 of the Surveillance Devices Act and section 90 of the Evidence Act.
A secondary issue raised by counsel for the accused was whether the probative value of the disputed evidence was outweighed by the dangers of undue prejudice (cf section 137 of the Evidence Act). It was submitted in this regard that the unfair prejudice outweighed the probative value. The Crown did not specifically address this issue - but I do not understand that to have been a relevant concession but, rather, an oversight. I have proceeded on the assumption that the Crown submits that the probative value of the evidence does outweigh any danger of undue prejudice.
In this regard, having considered the propositions collected in R v Pavitt at [70], and in particular subparagraphs (b), (c), (d) and (e), I am of the opinion that the probative value of the disputed evidence is not outweighed by the dangers of unfair prejudice (cf R v Shamouil [2006] NSWCCA 12). Further in this respect, I note that the generally expressed "admissions" made in the recorded conversation could relate to some of the allegations of fondling, or fellatio, or buggery, or sexual intercourse - or all of them. They are not specific. Their probative value is therefore weak - but the unfair prejudice high.
Disposition:
Pursuant to section 139(2) of the Criminal Procedure Act, I order that the recorded conversation between the complainant and the accused on 14 December 2012 not be admitted into evidence at the trial of the accused in connection with the matters upon which he was arraigned on 6 August 2014.
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Decision last updated: 17 September 2014
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