R v DPM - [2023] SADC 147

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DPM
[2023] SADC 147
Reasons for Ruling of his Honour Judge Stretton
4 October 2023
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - STATEMENTS MADE IN PRESENCE OF ACCUSED AND RELATED CONDUCT - PARTICULAR CONDUCT - SILENCE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE
The accused has applied for orders excluding evidence of two conversations the prosecution seek to lead on the basis that they are ambiguous, equivocal, and that in any event they are more prejudicial than probative. Further, that the second conversation was recorded in breach of the Surveillance Devices Act 2016 and should be excluded on the grounds of illegality. Discussion of when silence by an accused can constitute an admission.
Held:
1.      The conversation of 8 June 2021 is relevant, its probative value outweighs any prejudice, and it will be admitted.
2.      The conversation of 18 July 2021 is relevant, its probative value outweighs any prejudice, and it will be admitted.
3. The recording made of the 18 July 2021 conversation did not occur in circumstances authorised by s 4 of the Surveillance Devices Act 2016, and accordingly a discretion to exclude it from evidence arises on the grounds of illegality.
4.      In the circumstances, the discretion to exclude should not be exercised; and the recording should be admitted.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Surveillance Devices Act 2016 (SA) ss 3, 4, referred to.
R v Spencer [2019] SASCFC 70, applied.
Hall v The Queen [1971] 1 A11 ER 322; R v Salahattin [1983] 1 VR 521; R v Smith (1897) 18 Cox CC 470; R v Grills (1910) 11 CLR 400; R v Kamleh [2003] SASC 269; Woon v The Queen (1964) 109 CLR 529; R v Christie [1914] AC 545; R v Alexander [1994] 2 VR 249; Barca v The Queen (1975) 133 CLR 82; Davies v The Queen [2021] SASCA 26; R v DRF (2015) 263 A Crim R 573; Bunning v Cross (1978) 19 ALR 641, considered.

R v DPM
[2023] SADC 147

The accused is charged with the offence of Sexual Abuse of a Child contrary to s 50(1) of the Criminal Law Consolidation Act 1935.
It is alleged that between the 30^th day of June 2013 and the 9^th day of July 2016 at Munno Para West and other places, the accused, being in a position of authority in relation to the complainant his biological son, maintained an unlawful sexual relationship with him, a person under the age of 18 years, by engaging in two or more unlawful sexual acts with or towards him.
The application
The accused has applied for orders excluding evidence of two conversations the prosecution seek to lead.[1]
·A conversation alleged to have occurred on 8 June 2021 between the accused, the complainant and the complainant’s girlfriend.
·A conversation alleged to have occurred on 18 July 2021 between the accused, the complainant, and the complainant’s girlfriend’s mother, overheard and partly recorded by the complainant’s housemate.
[1] The parties agreed that the Rule 39 application be dealt with ahead of the trial proper on the evidential basis of the filed statements. Accordingly, the evidence set out or described is as per the relevant witness’ declaration. That evidence has been considered for that strictly limited purpose. It will be entirely disregarded for the purposes of trial, and only the evidence tendered at trial will be considered at trial.
The issue
The prosecution submit that the conversations amount to probative admissions of the charged offending.
The accused submits that neither conversation is sufficiently unambiguous or unequivocal to be probative, and that in any event any possible probative weight is in the circumstances outweighed by the prejudice that would attach.
The accused submits that a recording made by the accused’s housemate of the latter part of the second conversation was made in breach of s 4 of the Surveillance Devices Act 2016, and consequently the Court should exercise its discretion to exclude the audio recording from evidence at trial.
The 8 June 2021 conversation
The prosecution case is that after the offending ceased, the complainant realized that what had occurred was not right.
Several years after the offending ceased the complainant was in a relationship. During an argument with his girlfriend, he said he decided to demonstrate his trust in her and consequently disclosed what his father had done to him.
Subsequently he arranged for a catch-up with the accused for the purpose of raising the issue with him. Consequently, the accused came over to the complainant and his girlfriend’s home.
In light of the accused’s submission that the conversation is too ambiguous and equivocal to be probative, relevant portions should be set out in some detail.
The complainant said that he initially spoke to the accused alone:
Complainant:      We need to talk.
Accused:            About what?
Complainant:      About the stuff that happened to me when I was younger.
Accused:            Okay.
The complainant said that at that point the accused nodded, blushed, and became flustered, and the complainant started to cry.
Accused:           I’m sorry.
Complainant:             I want to let you know that it wasn’t right, what you’ve done.
Accused:            (No answer)
Complainant:      I’m not going to the police. But what you’ve done is not okay. I’ve told (the complainant’s girlfriend). That’s the only person I’ve told. But I need a break from you. I need time to process things and work things out.
The complainant said that the accused was repeatedly apologising throughout this conversation.
Accused:            Is there anything I can do?
Complainant:             No. I just need time to process things.
Accused:Could you not let this go any further than (the complainant’s girlfriend) and not tell anyone else?
Complainant:      I don’t know at this point. I just need to process things.
Accused:            Can you forgive me?
Complainant:      I don’t know. I just need time.
Accused:            Can I apologise to (the complainant’s girlfriend) as well?
Complainant:      I don’t know. I’ll see if she wants to come out.
The complainant said that he then went to the bedroom and told his girlfriend what had happened, and she agreed to come out so that the accused could apologise to her. They returned to the lounge room.
Accused: I wanted to say sorry and ask if you will forgive me?
Complainant’s girlfriend: I will never forgive you. How could a dad do that to his child?
The complainant said that the accused did not answer, and that his girlfriend went on to say how it had made the complainant so hurt and upset.
Accused:                  I don’t think I’m a bad person.
Complainant:      No-one can say if they’re a bad person or not. This went on far too long.
Accused:                   Can this stay between us?
Complainant:      It’s up to me; what I choose to do. I shouldn’t be pressured into anything. It’s your actions which you’ll have to deal with the consequences of. If I want to talk to someone about this, it’s my choice. It’s not up to you.
The complainant said that the accused did not respond and there was a period of silence.
Accused:            In the future, how are family events going to work?
Complainant:      I’m not sure. We’ll just deal with that when it comes.
Accused:If you want a present for your birthday, do I just drop it off in your letterbox?
Complainant:      I don’t care.
The complainant said that there was a further period of silence.
Complainant:      That is all I had to say.
Accused:            I’ll leave then. Do you want a hug or a handshake.
Complainant:      No.
The complainant said that the accused left, got into his car and drove away, but soon returned. He said that the colour had drained from the accused’s face, and he appeared very frantic and worried. He asked the complainant whether he had recorded the conversation and whether he was going to the police. The complainant responded that he had not recorded it, showed the accused the locked screen of his phone, and repeated that he was not going to the police.
Accused: Are you sure?
Complainant: I’m not going to the police. Just text me if you want to see the dog.
Apart from a subsequent text about seeing the dog, the complainant had no further communication with the accused until the events of 18 July 2021.
The complainant’s girlfriend also gives evidence of the conversation from the point when she was asked to join, along broadly the same lines. She says the following also occurred:
Complainant: Dad. Why did you do that to me?
Accused:It’s wrong and it shouldn’t have happened. I’m sorry. I’m sorry. It stopped!
Complainant: I know. But you should have stopped it straight away. It went on far too long.
The 18 July 2021 conversation
The complainant said that between 8 June and 18 July whilst he had not spoken to the accused, he had spoken to his brother to ask him if he had known about anything.
The complainant said that on 18 July 2021 the accused rang him, and he put the call on speakerphone. He said that his girlfriend, his girlfriend’s mother, and his housemate were all present.
Complainant: I won’t be coming over, but I want to talk about what you told (the complainant’s brother). Why did you tell him that I’d initiated stuff?
Accused: That’s not what I meant.
The complainant said that the accused was trying to explain himself but was not making sense, trying to say that what he’d said had been misunderstood by (the complainant’s brother), and was rambling.
At this point the prosecution alleges that the complainant’s housemate commenced recording the conversation on his mobile phone. The recording was tendered on the application. The first 1 minute and 30 seconds appears to record the following conversation between the complainant and the accused:
Complainant:      But I’m talking about you.
Accused:I said to (the complainant’s brother), I said I’m not going into it… all I … that, that’s what I am saying to you.
Complainant:      So you haven’t caught (inaudible) up that was me.
Accused:(The complainant’s brother) asked what happened and I said that (the complainant) said that you spoke to (the complainant’s girlfriend), and you told her everything, and then you said you wanted to have a talk with me and you said that you wanted a break, and then you said to me, when you were younger, something along the lines of, I could have stopped, I, I should have or I could have stopped things quicker.
Complainant:      The whole ordeal should have stopped a lot quicker. And you as a parent you as my dad should have stopped it and it shouldn’t have started. But you know how it went on for years.
Accused:            Ahhm. Do you want to talk in person or not.
Complainant:      I’ve told (inaudible) bits and pieces.
Accused:            Right.
Complainant:      So does (inaudible) as well.
Accused:            My question is do you want to talk in person or not?
At that point, the complainant’s girlfriend’s mother intervened and commenced speaking to the accused. She accused him in unequivocal terms of indecently assaulting the complainant and accused him of causing extreme upset and trauma to the complainant and to her daughter, the complainant’s girlfriend. The accused is silent in reply. She remonstrates with him and accuses him of equivocating in the foregoing (recorded) portion of the conversation and tells him he needs to unequivocally admit it to his son, and puts that he needs to fix the situation. The accused remains mute in response. She asks whether he has anything at all to say, and he responds no. She then said that she would therefore go to the police, and again the accused remains silent.
Submissions
The prosecution submits that each of these conversations are probative of guilt in that in the totality of the circumstances, they constitute admissions. The defence submit they are equivocal and of little or no probative effect.
Indeed, nowhere does the accused respond to a specific allegation, nor does he admit named misconduct.
Admissions by conduct or silence
It is clear that when questioning is conducted by police or investigatory authorities, a corollary of the right to silence is that no adverse inference whatsoever can arise where an accused person declines to answer police questions and consequently remains silent in the face of allegations subsequently being put to them.
However, that principle does not necessarily apply outside that context, and will not apply where outside that context a rational inference exists to the contrary.[2]
[2] Hall v The Queen [1971] 1 All ER 322 at [323]-[324]; R v Salahattin [1983] 1 VR 521; R v Spencer [2019] SASCFC 70.
Evidence will only constitute an admission if on careful examination of its content and context, it should logically be understood as such.
An allegation or assertion made to an accused person eliciting an equivocal or non-response will be probative if the circumstances are such as to leave it open to the court to conclude that the accused, having heard the statement and having had the opportunity to explain or deny it, and the occasion being one upon which he or she might reasonably be expected to make some observation, explanation or denial, has, by his or her silence or conduct, substantially admitted the truth of the whole or some part of the allegation made.[3]
[3] R v Spencer [2019] SASCFC 70; R v Smith (1897) 18 Cox CC 470; R v Grills (1910) 11 CLR 400; R v Salahattin [1983] 1 VR 521; R v Kamleh [2003] SASC 269.
As the Court of Criminal Appeal explained in R v Spencer:[4]
It is not that what is said to an accused can of itself be evidence against an accused, but his response may be if his silence or conduct may amount to an admission of the truth of what was said.[5]
If an accused person denies the truth of a statement when it is made and there is nothing in his conduct and demeanour from which the jury, notwithstanding his denial, could infer that he acknowledged its truth in whole or in part, it would accord with the accepted practice to exclude the statement altogether.[6]
Whether an inference can be drawn depends on the coalition of a number of facts.[7] They include questions such as whether the accused heard or received the subject statement, whether he or she understood it and whether the facts contained in the subject statement were within the personal knowledge of the accused.
The next step is whether the circumstances were such that a dissent would, in ordinary experience, have been expected by the accused. The issue concerns an assessment of human behaviour which is best made by the jury.[8]
[4]     R v Spencer [2019] SASCFC 70 at [36]-[39].
[5]     Woon v The Queen (1964) 109 CLR 529 at [541] (Windeyer J - his Honour dissented in the result but not on the point of principle).
[6]     R v Christie [1914] AC 545.
[7]     R v Salahattin [1983] 1 VR 521.
[8]     R v Alexander [1994] 2 VR 249 at [263]. Barca v The Queen (1975) 133 CLR 82 at [107].
In such a case where the response is silence, the court will also need to consider carefully the content of the assertion or allegation when determining the question of what if any of the assertion has been admitted by silence.[9]
[9] R v Spencer [2019] SASCFC 70 at [47].
Where admitted, the court must carefully direct itself or the jury, if there be a jury, as to the use to which such evidence may and may not be put.[10] For example, whether it allegedly constitutes an admission of a charged act or of something less specific yet probative for example ‘serious wrongdoing’ or an ‘inappropriate relationship’.[11]
[10] R v Spencer [2019] SASCFC 70 at [51]-[55].
[11] R v Spencer [2019] SASCFC 70 at [51]-[55] and [60].
Are the conversations probative?
The 8 June conversation comprises statements to the accused about what the accused did to the complainant when he was younger, that wasn’t right, that wasn’t forgivable, that represented criminal offending, and that caused him to burst into tears while discussing. The evidence is that that the accused became blushed and flustered, acknowledged and apologized for it, and repeatedly asked it to be not further circulated, and about which the accused was extremely concerned to not have his conversation recorded.
On careful examination of the content and context, it is open for a court to regard that evidence, if accepted, as an admission of inappropriate criminal conduct of an embarrassing nature by the accused towards the complainant.
The 18 July conversation is in two parts. The initial conversation between the complainant and the accused comprised the following:
Accused:(The complainant’s brother) asked what happened and I said that (the complainant) said that you spoke to (the complainant’s girlfriend), and you told her everything, and then you said you wanted to have a talk with me and you said that you wanted a break, and then you said to me, when you were younger, something along the lines of, I could have stopped, I, I should have or I could have stopped things quicker.
Complainant:      The whole ordeal should have stopped a lot quicker. And you as a parent you as my dad should have stopped it and it shouldn’t have started. But you know how it went on for years.
Accused:            Ahhm. Do you want to talk in person or not.
Complainant:      I’ve told (inaudible) bits and pieces.
Accused:            Right.
Complainant:      So does (inaudible) as well.
Accused:            My question is do you want to talk in person or not?
This first part of the conversation has two elements. Firstly, the accused acknowledges a previous conversation whereby the complainant told him that when he was younger the accused could or should have ‘stopped things quicker’. Then the complainant responds that ‘the whole ordeal should have stopped a lot quicker. And you as a parent you as my dad should have stopped it and it shouldn’t have started. But you know how it went on for years’, to which the accused did not respond but paused and twice suggested that they talk in person.
On careful examination of that conversation’s content and context, it is open for a court to regard that evidence if accepted, as the accused, acknowledging that they had a prior discussion about whether he should have or could have ‘stopped things’ i.e., unspecified inappropriate conduct towards the complainant, earlier than he did. Then when the complainant rejoined to the effect ‘the whole ordeal should have stopped a lot quicker. And you as a parent you as my dad should have stopped it and it shouldn’t have started. But you know how it went on for years’, that connoted that the things that the accused should have stopped doing were an ordeal that should never have started in the first place, and that the accused as the complainant’s parent had a responsibility both to never have started and to stop.
They were circumstances where were that not to have been the case, it was an occasion where the accused might reasonably be expected to make some observation, explanation or qualification, or seek clarification rather than pause, not answer, and ask if the complainant wanted to speak in person.
The evidence up to that point has the potential to connote, if accepted that, by his or her silence or conduct, the accused has substantially admitted the truth of the whole or some part of the allegation made, i.e. that the accused put the complainant through an ordeal for years that as a parent he never should have commenced or continued and which as a parent he should have stopped.
The second part of the conversation is where the complainant’s girlfriend’s mother entered the conversation and over the course of some eight minutes made clear allegations of sexual offending, expounded the trauma and upset he has thereby caused to the entire family, challenged him to admit what he did to the complainant, questioned his sincerity, and in the absence of such admissions then ultimately threatens to go to the police. As the conversation progresses, she leaves long pauses for the accused to respond but the accused remains silent.

It is potentially open for a court to conclude that the accused, having heard the accusations the complainant’s girlfriend’s mother was making to him, was given the opportunity to explain or deny it, that the occasion was one upon which he or she might reasonably be expected to make some observation, explanation or denial, and could, by his silence ‘be taken to have substantially admitted the truth of the whole or some part of the allegation made’.[12]
[12] R v Spencer [2019] SASCFC 70.
In the above ways, the evidence is probative.
In the court’s view, the potential probative weight, if accepted, of the evidence of the 8 June conversation and the first part of the 18 July conversation clearly outweigh any prejudice.
The second part of the 18 July conversation comprises the complainant’s girlfriend’s mother conveying allegations against the accused which include several potentially prejudicial assertions and value judgements, expressed in emotive terms, which are not separately probative. Were the case to be heard by a jury then the matter might be finely balanced as to whether those components ought to be excised, or if they could not be sensibly separated without interfering with the overall meaning and probative effect of the evidence, whether the prejudicial nature outweighed the probative value notwithstanding the important directions and warnings against impermissible use that the jury would be given.
However, given the matter is to be tried by judge alone, the law recognises that judges being experienced and professional triers of fact, are well qualified to, and much more able to, dismiss irrelevant, prejudicial, and emotive material from the court’s consideration.
Indeed, this court will have no regard to those aspects of the second part of the 18 July conversation that do not represent relevant allegations of sexual conduct or other probative conduct as earlier explained, whereby the accused was afforded the opportunity to explain or deny such conduct, the occasion being one upon which he might reasonably be expected to make some observation, explanation, or denial.
Section 4 of the Surveillance Devices Act 2016
The remaining issue is whether a recording made by the accused’s housemate of the latter part of the second conversation was made in breach of s 4 of the Surveillance Devices Act 2016 (‘the Act’), and if so whether the Court should exercise its discretion to exclude the audio recording from evidence at trial on the basis of such illegality.
The legislation provides:
4—Listening devices
(1)     Subject to this section and section 6, a person must not knowingly install, use or cause to be used, or maintain, a listening device—
(a)to overhear, record, monitor or listen to a private conversation to which the person is not a party; or
(b)            to record a private conversation to which the person is a party.
Maximum penalty:
(a)in the case of a body corporate—$75 000;
(b)in the case of a natural person—$15 000 or imprisonment for 3 years.
(2)     Subsection (1) does not apply—
(a)to the use of a listening device by a party to a private conversation to record the conversation if—
(i)all principal parties to the conversation consent, expressly or impliedly, to the device being so used; or
(ii) the use of the device is reasonably necessary for the protection of the lawful interests of that person;
A ‘listening device’ includes anything that can be used to record a conversation.[13]
[13] Surveillance Devices Act 2016, s 3.
A ‘private conversation’ means a conversation carried on in circumstances that may reasonably be taken to indicate that at least one party to the conversation desires it to be heard only by the other parties to the conversation, but does not include a conversation made in circumstances in which all parties to the conversation ought reasonably to expect that it may be heard by a person who is not a party to the conversation.[14]
[14] Surveillance Devices Act 2016, s 3.
The law also recognizes that a party to a private conversation who is an alleged victim of sexual offending has a very real lawful interest to protect, in particular the right to vindication through the criminal justice system.[15]
[15] Davies v The Queen [2021] SASCA 26, R v DRF (2015) 263 A Crim R 573 at [90]-[91].
Here, unless the complainant’s housemate was acting at the direction of the complainant such that he was the complainant’s actual or tacit agent, which is not clear or apparent on the limited materials before the court prior to trial, then the recording was not made by a party to the conversation, as the complainant’s housemate did not participate in the conversation nor was he ostensibly there for the conversation in a manner that would suggest he was a non-speaking participant in it. Accordingly, for the purposes of the current application, the court will assume that he was not a ‘party’ to the conversation.
It is clear on the balance of probabilities that the accused desired the conversation to be heard only by the other parties to the conversation, and it did not occur in circumstances in which the accused as a party to the conversation ought reasonably to have expected that it may be heard by a person who was not a party to the conversation.
In these circumstances, on the material available at this time to the court, the recording does not fall within the exceptions set out in s 4(2) of the Act.
Accordingly, there is a discretion to exclude the conversation based on illegality.
The principles that apply to the exercise of such discretion are well known.[16]
[16] Bunning v Cross (1978) 19 ALR 641.
Here, there are several aspects which favour admission:
·There was no knowing illegality by any person. The recording was made by a layperson, the circumstances of which do not connote any awareness that what he was doing was illegal.
·The recording would have been legal if it had been made by the complainant, however it was made by another person in the interests of the complainant, in the complainant’s presence but without the complainant’s knowledge.
·There was therefore no knowing or negligent breach of the law by any investigatory or prosecutorial agency, hence no official conduct which warrants condemnation or sanction by exclusion.
·There is other evidence of the conversation, which is admissible, the admission of the recording however is the best and most reliable version of that evidence.
Indeed, the remarks of Stephen and Aickin JJ in Bunning v Cross are apposite:[17]
In appropriate cases it may be “a less evil that some criminals should escape than that the Government should play an ignoble part”: per Holmes J in Olmstead v United States 277 US 438 at 470. Moreover, the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when, of their very nature, they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.
[17] Bunning v Cross (1978) 19 ALR 641 at [661].
In all the circumstances, the illegality was not deliberate, was not performed by law-enforcement in calculated disregard of the statute, and will provide the best evidence of an event, evidence of which can and will be led from witnesses in any event.
Hence the discretion should and will be exercised to admit the evidence.
Conclusions
1.The conversation of 8 June 2021 is relevant, its probative value outweighs any prejudice, and it will be admitted.
2.The conversation of 18 July 2021 is relevant, its probative value outweighs any prejudice, and it will be admitted.
3.The recording made of the 18 July 2021 conversation did not occur in circumstances authorised by s 4 of the Surveillance Devices Act, and accordingly a discretion to exclude it from evidence arises on the grounds of illegality.
4.In the circumstances, the discretion to exclude should not be exercised; and the recording should be admitted.