R v PFW
[2025] QDCPR 11
•20 February 2025
DISTRICT COURT OF QUEENSLAND
CITATION:
R v PFW [2025] QDCPR 11
PARTIES:
THE KING
v
PFW
FILE NO:
Indictment No. 2460/22
DIVISION:
Criminal
PROCEEDING:
Ruling
ORIGINATING COURT:
District Court Brisbane
DELIVERED ON:
20 February 2025
DELIVERED AT:
Brisbane
HEARING DATE:
11 February 2025
JUDGE:
Everson DCJ
ORDER:
Application dismissed
CATCHWORDS:
CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – VOLUNTARY STATEMENTS – PERSON IN AUTHORITY – where the complainant was the complainant in the prosecution of a sexual offence – where the complainant recorded a series of telephone conversations between the complainant and the applicant –where the applicant made admissions against interest and admissions to offending charged – whether it would be unfair to allow the telephone conversations to be admitted into evidence at trial
LEGISLATION:
Criminal Law Amendment Act 1894 (Qld) s 10
Evidence Act 1977 (Qld) s 130
CASES:
R v Anderson [2008] QDC 137
R v Burt [2001] QdR 28
R v Swaffield (1998) 192 CLR 159
COUNSEL:
Mr Francis for the Crown
Ms O’Connor for the Applicant
SOLICITORS:
Director of Public Prosecutions for the Crown
MacDonald Law for the Applicant
Introduction
This is an application by the defendant seeking an order that recorded telephone conversations between the applicant and the complainant are not admissible evidence in his trial.
The primary basis for the application is s 10 of the Criminal Law Amendment Act 1894 (“CLAA”) which states:
No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.
In the alternative, this evidence is sought to be excluded in the exercise of the court’s discretion on the basis that it would be unfair to admit the recorded telephone conversations into evidence. In this regard, reliance is placed on s 130 of the Evidence Act 1977 (“EA”) which states:
Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person in charge to admit that evidence.
The telephone conversations
The applicant is charged with one count of maintaining a sexual relationship with a child, six counts of rape, two counts of unlawful anal intercourse with a child under 16, and three counts of indecent treatment of a child under 16. The offending allegedly took place between 1 January 1994 and 11 October 1996. The complainant is now a 44-year-old woman being born on 12 October 1980.[1] At the time of the alleged offending she was between 13 and 15 years of age and the defendant was in his early 30s.[2]
[1]Ex. 2, Pre-recorded evidence of Complainant, 18 December 2024, T1 – 5, ll 20–21.
[2]Submissions of the Applicant, para 2.
The complainant first contacted police in late 2021. Police organised pre-text telephone calls by the complainant on 15 December. The first two of these were conducted with the assistance of police and the remaining telephone conversations occurred in circumstances where the complainant conducted them herself and recorded them herself. It was agreed with police that she would do this.[3] The transcript of the telephone calls is Exhibit 1 before me in circumstances where the first of them only consisted of the complainant leaving a message. There are six recordings referred to as pre-text calls 1 – 6 in the evidence before me, with the numbers reflecting the chronology. A later conversation was recorded on 15 December 2021, two telephone conversations were recorded on 16 December 2021 and two telephone conversations were recorded on 17 December 2021.[4]
[3]Ex. 2, T1 – 59, ll 19–35.
[4]Submissions of the Applicant, para [3].
In the second telephone conversation of 15 December 2021, the complainant stated:
I don’t want the conversation to be evasive or you know you not you not wanting to talk to me it’s just I just I just want to talk I don’t um I just I just really wanna um just chat and try and get some understanding um about what happened.[5]
Subsequently, she stated that she didn’t “have an agenda”.[6] At the end of the first three telephone calls no material disclosures had been made by the applicant, however the complainant persisted.
[5]Ex. T1, Pre-text Call 2, p 3.
[6]Ibid, p 5.
In the fourth conversation she told the applicant that she did not want him to think that she was “wanting to kind of fuck you over, or anything like that”,[7] and subsequently she stated that she just really wanted to get an understanding of what was going on because she only had “flash memories” of what went on and could not put “the pieces together”.[8] Later in this conversation, the applicant stated that “I did think of you may have been setting me up”, to which the complainant responded, “not not in for the drama”.[9] Later, the applicant indicated that he had not had much sleep the night before “and not because I’m thinking ah you know I’m about to get arrested … although that crossed my mind yesterday when you rang and you asked me weird questions …”. When the complainant responded, “what’s going on?”, the applicant stated, “but, well if that’s what’s happening that’s what’s happening I guess …”.[10]
[7]Ex. 1, Pre-text Call 4, p 4.
[8]Ibid, p 5.
[9]Ibid, p 13.
[10]Ibid, p 20.
Thereafter, the applicant began making disclosures about offending with which he is charged.
Subsequently, early in the first conversation on 17 June 2021, the applicant asked, “come on seriously what’s really happening?”. The complainant responded, “nothings happening um I’m just I’m just like I’m being a hundred percent truthful with that I just want to put the pieces together for me um I have snippets …”.[11] Thereafter in this conversation, the applicant makes further admissions to offending with which he is charged but he does so in the context of being smug and self-justificatory. The question of retribution is later raised and the applicant asks, “if you’re wanting me, if you’re wanting some retribution like having me charged or something ok is that what you want to do?”, to which she responds, “that’s not what I want to do. I have told you what I want to do I want to try and put the pieces together I want to try and understand”.[12] The applicant thereafter makes further disclosures of offending, before saying the complainant was a “twenty year old thirteen year old”.[13]
[11]Ibid, Pre-text Call 5, p 7.
[12]Ibid, p 11.
[13]Ibid, p 30.
It is only towards the end of this conversation that he asks whether the complainant is recording it and she responds “no”.[14] Subsequently in this conversation, when the complainant takes the applicant to task for his sexual relationship with her 13-year-old self, he responds, “it’s not a bad thing”, before stating:
…you’ve just gone well he was thirty and Iwas thirteen and he’s done the wrong thing yep so from a legally morally point of view no argument so if you if I’m going to jail then that’s what’s gonna happen, but from an emotional point of view that was not the, that was not the issue at all and knew it at the time. Well I thought you knew it at the time.[15]
He then makes further admissions to charged offending.
[14]Ibid, p 43.
[15]Ibid, p 47.
In the final conversation, also on 17 December 2021, the applicant makes further admissions to offending. The complainant becomes extremely emotional, expressing in harrowing terms how terrified she had been as a consequence of his conduct towards her, accusing him of being a predator and a “piece of shit”. She finishes by saying that she has said what she wanted to say and does not ever want to talk to him again.
In her pre-recorded evidence the complainant admits that she had lied to the applicant about the reason she was calling him and whether she wanted to have him charged. She admits that she also lied about whether she was recording the calls.[16] In subsequent cross-examination it is clear that she not only wanted the applicant charged, but she also “wanted him to clarify things for me that were a big thing…”.[17] This is consistent with the tone of the last conversation which was very emotional and apparently cathartic.
[16]Ex. 2, - 1 57, ll 15-26.
[17]Ibid, 1 – 65, ll 34-36.
The complainant did not sign her witness statement until 20 December 2021, three days after the final telephone conversation referred to above.[18]
[18]Ibid, 1 – 69, ll 15-17.
Was the complainant a “person in authority”?
In R v Burt,[19] White J observed at [45]:
Whilst there is no doubt that a complainant in a sexual prosecution may be characterised a person in authority, the circumstances of each case must be determined with some care to avoid elevating that person to a role which, in truth, that person does not fill. It is the impression upon the mind of the appellant which is the governing factor.
White J subsequently found that there was nothing in the responses to the complainant that suggested that the appellant had any apprehension that she was a person “who might put the wheels of prosecution in motion”.[20]
[19][2001] QdR 28 at 42.
[20]Ibid.
In agreeing with White J, Thomas JA made further observations about the application of s 10 of the CLAA which, although not adopted by the other members of the Court, are nonetheless instructive at [7]:
I agree with White J that the proper approach in determining whether a confession is involuntary is to examine the viewpoint of the accused person. If the accused would see the person asking the questions as a person in authority, the courts have perceived an unacceptable risk of expectation by the accused of advantage by co-operating or of disadvantage by failing to co-operate, thereby inducing answers which might otherwise be withheld. The risk of one’s will being overborne by a person in authority would seem to be the basis of the rule against reception of confessions unless they are voluntarily given.[21]
[21]Ibid at 33.
More than subterfuge or deception are necessary as the history of successful covert police operations demonstrates.
An example of where a complainant in a prosecution for a sexual offence was found to be a person in authority pursuant to s 10 of the CLAA is R v Anderson.[22] In that case the defendant was charged with the offence of assault occasioning bodily harm in respect of the complainant. He was arrested and granted bail and a few days later the complainant made a further complaint against him of rape. In a pre-text telephone call organised by police, the defendant admitted to raping the complainant in circumstances where she informed him that she just wanted him to apologise and represented that she would not have him charged if he did, or use his confession in evidence. The complainant had caused his arrest for the offence of assault occasioning bodily harm only days earlier. Martin SC DCJ concluded that there was not only a promise that she would not complain to police about the sexual offending but also an implied threat that if the defendant did not apologise for everything she would complain to police. His Honour observed at [24]:
Whilst all pre-text conversations are necessarily founded on a misrepresentation to a defendant as to the nature and purpose of the conversation, the complainant’s conversation in this case involved direct lies to the defendant that she was not complaining to police about a sexual offence in January and that an apology would satisfy her…the complainant was, of course, an agent of the State. In the circumstances, there seems a sound argument that the defendant was deliberately deceived in to giving up his right to silence in circumstances in which he had demonstrated that he did not intend to do so.
[22][2008] QDC 137.
The facts before me are very different. I am satisfied that the applicant did not apprehend that the complainant was about to “put the wheels of prosecution in motion”, to use the term favoured by White J in Burt above. The context of the telephone conversations between the applicant and the complainant in Exhibit 1 is very different to that discussed by Martin SC DCJ in Anderson. Indeed, in pre-text call 4 the applicant expressly stated that he had lost sleep but not because he was thinking he was about to be arrested.[23] Other concerns raised by him, which are expressed in general terms, are seemingly brushed away by the complainant in circumstances where he appears unconcerned. Rather, he appears to be enjoying reminiscing about his sexual exploitation of the complainant as a child and seeking to justify his conduct. In pre-text call 5 he states that “from a legally morally point of view no argument… if I’m going to jail then that’s what’s gonna happen”.[24]
[23]Ex. 1, Pre-text call 4, p 20.
[24]Ex. 1, Pre-text call 5, p 47.
When considered as a whole, it is clear that the applicant was not concerned that the complainant was really about to put the wheels of prosecution in motion. His mind was not overborne by a person in authority. Moreover, the nature and tone of the final telephone conversation clearly demonstrates that the complainant was motivated by more than just obtaining admissions to offending in her desire to communicate with the applicant about his alleged offending against her. This is consistent with her answers in cross-examination that she wanted to clarify things for her as well. [25]
[25]Ex. 2, T1-65, ll 34-36.
As White J observed in Burt, whether the complainant can be characterised as a person in authority is a threshold question for the application of s 10 of the CLAA, and issues of inducement only arise in the event she can be categorised as such. I am satisfied that she cannot be so categorised on the facts before me, and accordingly the primary basis for the application is unsuccessful.
Discretionary exclusion of the telephone conversations
The applicant’s counsel, Ms O’Connor, conceded in her oral submissions that the applicant’s strongest argument is involuntariness,[26] however as the discretionary basis for exclusion is also raised I will determine that as well.
[26]T1 – 38, ll 24-35.
The admissions set out in Exhibit 1 appear to be of high probative value. This is particularly so in circumstances where there is an apparent absence of corroboration, given the passage of time in respect of the allegations made by the complainant giving rise to the charges before the court. My analysis of the telephone conversations above does not suggest legal manipulation or trickery on the part of the complainant, such that it would be unfair to admit this evidence in the applicant’s trial even though she represented to him at one point that they were not being recorded. In this regard, the observations of Thomas JA in Burt at [11] are instructive. There is no greater imbalance and potential unfairness when one party knows that a conversation is being recorded and the other does not, than where one party to a conversation knows that legal proceedings are imminent and that the other does not.[27] Further, in the circumstances before me, the applicant’s freedom to choose whether or not to speak to police has not been impugned.[28]
[27]R v Burt at 23.
[28]R v Swaffield (1998) 192 CLR 159 at 202.
Accordingly, the secondary basis for the application also fails. The recorded telephone calls between the applicant and the complainant are therefore admissible in his trial.
I dismiss the application.
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