R v Reitberger
[2014] NSWDC 154
•01 May 2014
District Court
New South Wales
Medium Neutral Citation: R v Reitberger [2014] NSWDC 154 Hearing dates: 28 April 2014 - 30 April 2014 Decision date: 01 May 2014 Jurisdiction: Criminal Before: Williams ADCJ Decision: Application to exclude evidence of two telephone calls is dismissed
Catchwords: CRIMINAL LAW - judgment - Application to exclude evidence from the jury - Pretext conversations - Admissibility of - Sexual allegations Legislation Cited: Evidence Act
Surveillance Devices Act 2007
Listening Devices Act 1984Cases Cited: DJS v R; NS v R (2012) NSWCCA 9
Duke v R (1989) CLR 508 at 513
Employment Advocate v Williamson 2001 FCA 1164
Juric v R (2002) 199 A Crim R 408
Pavitt v R [2007] NSWCCA 88
R v Broyles [1991] 3 SCR 595
R v Burton [2013] NSWCCA 335
R v LDV (No 2) [2013] NSWDC 215
R v Swaffield; Pavic v R 192 CLR 159
R v XY (2013) NSWCCA 121
WK v R [2011] VSCA 345Category: Procedural and other rulings Parties: The Crown
Claude ReitbergerRepresentation: Counsel:
Ms D D'Aleo - The Crown
Mr P Strickland SC - The accused
Mr Hunt - The Accused
Solicitors:
Director of Public Prosecutions
File Number(s): 2012/371680 Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant
Judgment
HIS HONOUR: In this matter the complainant in the sexual assault trial was a patient of the accused who at the time was a medical practitioner in a practice at Burwood. The complainant had apparently seen the accused some years before but the consultation on 13 June 2012 was entirely coincidental. The complainant alleges that at this visit the accused masturbated him, rubbed his perineum and anal area and inserted his finger in his anus. The accused is charged with two counts of indecent assault and one count of sexual intercourse without consent.
Whilst there is no dispute that the complainant had a consultation with the accused on the day in question, the assaults are denied and the significant issue in the case as I understand it is going to be whether or not what occurred to the complainant was as a result of an examination for a proper medical purpose.
Apart from the alleged admissions made by the accused to the complainant in a lawfully recorded telephone conversation, the only evidence in the Crown case is the complainant's own evidence and evidence of early complaint to a number of other people.
The defence seeks to have the telephone conversations excluded from the jury. I will refer to these what have been called "pretext" conversations as call 1 and call 2. Call 1 was made on 2 November 2012 at about 1.30pm and lasted about four and a half minutes. Call 2 was made on the same day at 1.55pm and is somewhat longer. Both were recorded and the transcripts are available.
Mr Strickland SC for the defence seeks to have these conversations excluded under the provisions of either s 90 or s 137 and 138 of the Evidence Act. "Pretext" conversations have been considered by the New South Wales Court of Criminal Appeal in two relatively recent decisions Pavitt v R [2007] NSWCCA 88, (which was followed in the Victorian case of WK v R [2011] VSCA 345) and R v Burton [2013] NSWCCA 335. Mr Strickland has made detailed oral and written submissions arguing amongst other things that Pavitt and Burton wrongly applied a test initially set out by the Canadian Supreme Court in Broyles case.
In the present case the complainant formally complained to the HCCC in the first instance, although he had complained earlier to his sister and some other organisations. This HCCC complaint was by way of a written letter about what had happened, which was then followed by a formal statement, much akin to a police statement. The HCCC notified police who contacted the complainant and obtained a further statement, which basically confirmed the statement he'd made to the HCCC. The complainant's written letter was received by the HCCC on 19 June and the formal statement taken by the HCCC is dated 28 June. The police statement was made on 15 August, so that as far as the complete details of the matters complained of, they were in writing within three weeks of the alleged offences being committed.
According to the complainant who has given evidence on the voir dire, the HCCC told him that police might be able to use other investigative techniques like making contact with the accused, something that presumably the HCCC did not feel that they were able to do. The complainant was overseas when initially contacted by police. Some time prior to 2 November 2012 and after he had made his statement, Detective Senior Constable Page, the officer in charge, asked the complainant if he would be prepared to either telephone the accused or wear a body wire to a meeting with the accused.
The complainant agreed to that proposal and an application was then made for a warrant under the Surveillance Devices Act to record any such telephone conversation and that warrant was granted.
Preparatory to making the calls the complainant made two pages of notes at home, that he no longer has, in order to assist him during the call. He was not told what questions to ask nor was he given a checklist or a script to follow by the police. Nor was he told that he should tell the truth, not ask leading questions or not make inducements to the accused. The calls were made from the Burwood Police Station with the complainant alone in the room and not able to be influenced by anyone else.
After the first call was made the complainant signalled that the call was over and Detective Page entered the room. They both listened to what had been said during the recording. According to the complainant Detective Page was happy with the call but asked the complainant if he would be prepared to ring the accused again in circumstances where the complainant was urged not to worry about the accused becoming suspicious of the purpose of the call.
The first call had ended with the accused inviting the complainant to ring again if he wanted to talk to him rather than coming to see him. He, the accused, had in fact supplied the complainant with his mobile number during that first conversation.
About 20 minutes after the first call Detective Senior Constable Page left the room and the complainant made the second and longer call. Detective Senior Constable Page acknowledged that from his point of view, certainly at the time when he was asked questions during the voir dire, he wanted to get further evidence of the allegation that the accused had penetrated the complainant's anus with his finger.
I am satisfied that the police did nothing to influence the course of either conversation other than to encourage discussion on the matters in issue. Detective Senior Constable Page acknowledged that prior to these calls he had enough evidence to charge the accused and arrest him, at which point of course he would have been obliged to issue a caution. But he wanted to see if he could obtain some admissions as to the conduct in question. He instructed the HCCC not to approach the accused as it might prejudice police investigations and alert the accused about things such as phone calls being attempted. He agreed that he did this to circumvent the requirement for a caution which would be required if the accused was arrested. He said he used the complainant as an investigative tool. At p 13 of the transcript he also acknowledged that this was to circumvent the requirement that if a police officer were to speak to the accused he would have had to have cautioned him.
What was said by the accused in the first call could be regarded as equivocal and may not have amounted to an admission as to the digital anal penetration, although that is really a matter of fact. The second call did provide evidence of the penetration, although again in circumstances that, it could be argued, did not necessarily involve criminal conduct on the part of the accused.
The complainant was, as he said and understandably, very nervous prior to and during these calls. He admitted that certain things that he said to the accused were not the truth such as:- that he had not told anyone else about what had occurred; that he only wanted to talk about what had occurred with the accused; and that he would be more flattered if the reason for the conduct of the accused was the accused's attraction for the complainant. However in the second conversation at p 12 of the transcript he acknowledged to the accused that although he said he was flattered he actually was not and he had only said in the first conversation because he was nervous.
The defence argues that statements like this amounted to misrepresentations. It is further argued that the complainant saying things like, "If you admit you did wrong I would feel more comfortable" or, "I prefer you just to be real with me then I'd feel better" were inducements. . Of course misrepresentations and inducements would tend to invalidate anything said to police under caution in a record of interview.
Looking at the various authorities, both Australian and overseas, there are a wide variety of different scenarios involving so called "pretext" or "entrapment" conversations and depending upon the nature of the conversation and the persons having it, different considerations may well apply in each circumstance. In some instances the police officer has been or a police officer has been the undercover instigator of the conversation. In others a friend or an acquaintance of an accused has been used by the police to instigate a conversation. In the cases of Pavitt and Burton the victim was used by police to instigate the conversations. I am aware of victims of their own volition illegally recording conversations with alleged perpetrators in order to be able to present that material to the authorities.
In Pavitt McColl JA and Latham J said at paras 71, 72 and 73 as follows:
"We would add that views may differ about whether a complainant is a state agent even if the conversation is recorded in circumstances facilitated by the police. [I omit a reference to a case there] For our part we would not readily apply a label of state agent to a complainant speaking to a suspect who had not been charged nor refused to speak to police. Rather we would look at the whole relationship as revealed by the participant's past history and what is revealed by the actual conversation. It maybe relevant to consider whether the police scripted the conversation.
Further whilst Iacobucci J [who was one of the judges in the Broyle's case [1991] 3 SCR 595] did not see it as necessary to recognise a special test for cases involving a victim speaking to the accused. In our opinion, with respect, it might be thought that conversations in such circumstances were more likely to be reliable as the suspect would have no occasion to boast, seek to big note him or herself and to the extent the victim put allegations that the suspect had committed a criminal act vis a vis him or her the subject would more readily reject the proposition if it was false. Police could not anticipate that a suspect would readily make admissions to a person asserting he had committed a criminal act against him.As Giles J A said in EM v R, "Ordinarily persons do not make admissions against interests unless they're true"."
Those words do not, it seems to me to raise a complainant in a sexual assault case to some sort of special category of persons who can never be agents of the state. In any particular case it will no doubt depend upon the circumstances of each matter.
In most sexual assault cases the issue usually comes down to one person's word against another's.It is rare for there to be any eye witnesses other than the parties concerned. Corroboration of a victim's version is not legally a necessity, but a jury is warned to scrutinise a victim's evidence carefully if it's the only evidence against an accused person. Whilst complaint evidence can amount to corroboration, it has its own problems. It seems to me that it cannot be the case that police investigation of sexual assault must come to a halt once a complainant has made a statement confirming criminal conduct. Indeed once a person is arrested or charged, given the uncertainly of conviction beyond reasonable doubt where it's one person's word against another's, I do not see it as inappropriate for police to seek to obtain an admission using a victim as a means to an end, provided the police act appropriately.
In the present case, the accused at the time was a medical practitioner of some lengthy experience. The complainant was a young man, aged twenty-three. He was seeing the doctor about a possible urinary tract infection, he then being in a relationship with a same sex partner. There was thus a well experienced doctor and a relatively vulnerable patient, confronting each other. It seems to me it cannot be suggested that the complainant was in a position of emotional or subjective superiority in relation to the accused, or that he was in a position to exploit the accused in some way, either then or at the time of the telephone call.
There was no apparent unease on the part of the accused during the conversation. He could have ended it at any time by saying something like, "Look I don't know what you're talking about." It's suggested that the accused was vulnerable because he was confronted with an emotional patient who needed reassurance and hence, some of the ambivalent responses by the accused to the questions and statements that were being made.
I don't accept that the conversation was scripted in any way or influenced, prejudicially to the accused, by the police. I do accept that the conversation would probably not have occurred but for the police requesting that process to be undertaken and the conversations were certainly not part of any sort of ongoing relationship between the complainant and the accused as appears have been the case to some degree, in Pavitt but certainly in Burton. No doubt, there was concern as to the bizarre nature of the allegations, in the circumstances, against a medical practitioner and that it was important to get as much evidence as possible to support the complainant's version of events.
If "pretext" conversations are to be regarded as lawful and admissible, depending on the circumstances, I cannot see that police officers would be required, especially in the case of a sexual assault complainant, to discuss with that complainant what is meant by a misrepresentation, leading questions or inducements. To do so would, it seems to me, to engage in an artificiality that the cases seem to suggest is to be avoided. A spontaneous conversation with whatever faults it may have, is likely to be more believable than an artificial one. Clearly, there would be little purpose in such conversations if subterfuge, to some degree, was not part of the equation, provided that the subterfuge does not go to the core of the evidentiary benefit sought to be obtained.
For example, in the present case, if admissions had been made consequent upon the complainant telling the accused, untruthfully, that he had aurally recorded what had happened to him on his mobile phone, that may be a situation warranting exclusion. But the matters complained of as being misrepresentations or lies or untruths, did not in my view make any difference to how the conversation developed or as to how any admissions were made.
The accused was told on 8 November 2012, that an allegation had been made against him, by someone, of a sexual nature and he agreed to meet with police at the police station, on 15 November. On that date, when interviewed, he was not under arrest. He was given the usual caution at the interview and told he could leave at any time. He agreed to the interview even though he did not have a lawyer present. During the interview, he was asked questions about the conversations that he had with the complainant on 2 November.
The later history of the matter is that on 28 November, he was given a court attendance notice to attend court on 9 January and the matter has taken its course since then.
The accused has not called or given evidence on this application, but reliance is placed on what he said in the record of interview by way of explanation as to what was said to him in the two conversations and as to how the accused reacted to that situation and the questions that were being asked.
In R v Swaffield:Pavic v R 192 CLR 159, which I will refer to as Swaffield and Pavic, in the joint judgment at para 100, the following was said in conclusion in the Pavic case;
"No caution was administered by Clancy which is hardly surprising in the circumstances." [Clancy being the person that the police had asked to speak with, the accused.] "The circumstances are close to those in Broyles, the Canadian Decision. As in Broyles, the person with whom Pavic spoke must be regarded as an agent of the state. A meeting was not directly set up by the police, but Clancy spoke with Pavic at the request of the police, who equipped him with a recording device. If Broyles is applied, the next question is whether the admissions by Pavic were elicited by Clancy, were made in the course of a conversation. Put another way, was there an interrogation by Clancy. Pavic argued that he was misled by Clancy to making the admissions he did. The trial judge said "whilst the role of the accused in the killing was volunteered by him to Clancy in a somewhat limited fashion, it cannot be said to be the result of or inexplicably linked to the expressed fear of Clancy that he may be charged with an offence". In all the circumstances, where is no sufficient reason to interfere with the trial judges refusal to exclude the evidence of the conversation."
The Pavic appeal was dismissed.
Whilst the Canadian cases are referred to in Swaffield, the principles enunciated , partly in Broyles case, are not specifically adopted. Brennan CJ did not refer to either of the Canadian cases.
The plurality or joint judgment said at paragraphs 83 and subsequently as follows;
"The Canadian authorities are instructive in this regard, though it is necessary to keep in mind the existence of the Canadian Charter of Rights and Freedoms and to identify the extent to which any authority turns on the language of the charter."
The Court then went to refer to the case of R v Hebert, which was the other case. It then went to consider R v Broyles. At paras 87 and 88, the judgement said of Broyles case;
"The Court identified two questions which are necessary for decision but which do not have to be answered in Hebert. The first was whether the friend was an agent of the state. The second was whether the accused's statement had been elicited by the friend."
Then at para 89;
"The Australian decisions generally have not expressed the relevant principles by reference to the informed choice spoken of in Canadian cases. At least in terms of voluntariness, they tend to approach the matter in terms of an immunity from compulsion. The emphasis has been on whether duress has been brought to bear on the suspect, that is whether the will has been overborne in some way. That emphasis is well placed when voluntariness is at issue but it is too narrow when the exercise of discretion is involved."
Section 90 of the Evidence Act creates a test of unfairness to an accused in deciding whether or not evidence of admissions by the prosecution is to be admitted. In Swaffield, para 53, the Court said amongst other things;
"The term 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 affect the reliability of the statement. Unfairness then relates to the right of an accused to a fair trial. In that situation, the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be for instance that no confession might have been made at all had the police investigation been properly conducted. Once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred."
In determining unfairness then, the Court is required to consider a confession's reliability and or whether it's prejudicial value is unfairly greater than it's probative value, bearing in mind that admissions will always be prejudicial to an accused.
The Court may also need to look at policy considerations even where no unfairness has been demonstrated, particularly if it established no confession might have been made if the investigation had been properly conducted. That is a reference there to Duke (1989) CLR 508 at 513.
Section 98 of the Evidence Act is the coincidence evidence section and it restricts the use of coincidence evidence to cases where the probative value substantially outweighs any prejudicial effect. Section 137 is an overarching restriction on evidence being admitted if is probative value is outweighed by the danger of unfair prejudice to an accused. The so-called balancing test as to whether a jury will unfairly use the evidence in a way other than what it was intended to prove. Section 138 excludes evidence obtained in consequence of an impropriety unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which it was obtained. This is essentially a public policy rule.
At the outset it is difficult in reading appellate cases, to get a flavour of the evidence sought to be excluded in each case. Thus comparing cases factually may be unhelpful in applying the ratio of a decided case to the case being tried in the matter before me. Much will depend upon the actual circumstances of each individual matter. The evidence on this application is a matter of record. It seems to me inappropriate to refer extensively to that material in a judgment on admissibility where the trial is now proceeding. Nor is it my role, it seems to me, to embark on a detail exegesis of the law on this topic which has occupied appellate courts to a significant degree.
The accused argues in regard to s 90 that unfairness is not a defined concept. Reference is made to the case of Duke v R, where amongst other things it was said that, trickery, misrepresentation, cross-examination going beyond the clarification of information voluntarily given, to name but some improprieties, may justify rejection of a confession if the impropriety has some material effect on the confessionalist, albeit the confession is unreliable and was apparently made in the exercise of a free choice to speak or be silent.
The Court went on to say the effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case. The first consideration it is argued, is a denial of important procedural rights which an accused possesses. The second consideration is the reliability or lack thereof of the admission. The other issue is the accused's freedom to choose to speak or not to speak to the police.
It is argued that when an accused is interviewed by the police he has certain rights. The most important of those rights is the right to silence. It is also the right, when arrested, to be informed of the nature of the charges the police are investigating. Covert recordings deny the procedural right of (a) the accused choosing whether to speak to the police and (b) the accused knowing that he is under investigation for a particular charge.
Considerable reliance is placed on Broyles case by the defence which, it suggested, is authority for a number of propositions. They have been set out in the helpful submissions from Mr Strickland. They are, essentially:-
(1) 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.
(2) Did the state agent actively seek out information such that the exchange could be characterised as akin to interrogation or did he or she conduct his or her part in the conversation as someone in the role the accused believed the informant to be playing would ordinarily have done.
(3) 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.
It is quite clear, and this is argued in Pavic, that the High Court certainly regarded the informer as an agent of the state and certainly regarded that whatever was said by Mr Pavic was elicited in that the accused was interrogated by the informer. Whether that amounts to an adoption of the principles in Broyle's is perhaps a matter for another time.
Reference was then made to the case of Burton, particularly to Justice Simpson (who gave the Court's judgment) at paras (124) and (127) where her Honour found the complainant was not an agent of the State because she was satisfied the conversation would have occurred anyhow and that the admissions made were not elicited because the conversation was not a functional interrogation.
Burton is substantially factually different to the present case for the reasons I have already stated. That is that the conversations in the case before me would not have happened but for police intervention and secondly there was no suggestion of any ongoing relationship that would be of any relevance.
In Pavitt the factual circumstances were somewhat more akin to the present case except that the time delay between the offences and the telephone call were some 16 or 17 years as opposed to four months in the present case. As well the police sat in on the conversation with the complainant and even suggested questions to the complainant by way of giving notes to the complainant. Pavitt had apparently been a neighbour of the complainant when the latter was a young man and sexually assaulted him between 1983 and 1987. The complainant contacted police in 2002 and the impugned telephone calls occurred in 2003.
In Pavitt McColl J A and Latham J set out in para (70) some of the considerations to be taken into account in this type of evidence. The first
(a) is that the underlying consideration in the admissibility of covertly recorded conversations is looking at the accused's freedom to choose to speak o the police and the extent to which that freedom has been impugned.
(b) If that freedom is impugned the Court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted. A conclusion that some or all of the Broyle's factors were present did not lead to the admissions being excluded in either Pavic or Carter's cases.
(c) Even if there is no unfairness the Court may consider that having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable and in regard to prevailing community standards which is the public police issue.
(d) The question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and or improper include whether the accused had previously indicated that he or she had refused to speak to the police.
I interpolate here that there is no dispute that prior to this telephone conversation no-one had approached the accused or warned him in anyway that there was any ongoing investigation. But I think the point about what the Court says in (d) is that if a person has been approached by either the police or someone else and said they do not want to speak to the police than that is a fairly significant matter to be taken into account. In this case it is neutral because the approach was not made.
(e) The right to silence will only be infringed where it was the informant who caused the accused to make the statement and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly two distinct inquiries are required:-.
1. as a threshold question was the evidence obtained by an agent of the state.
2. was the evidence elicited
(f) A person is a state agent if the exchange between the accused and the informer would not have taken place in the form and manner in which it did take place but for the intervention of the state or its agents.
(g) Absent 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.
(h) Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement. Evidence of the instructions given to the state agent for the conduct of the conversation may also be important.
(i) The fact the conversation was covertly recorded is not of itself unfair or improper at least where the recording was lawful.
This passage in Pavitt was followed in Burton and in WK v R, albeit the factual circumstances on both those cases were different.
It is argued that any admissions obtained were elicited because (a) the complainant actively sought to get critical information. (b) The complainant engaged in deception or misrepresentations. (c) The complainant initiated all relevant parts of the conversations and (d) asked leading questions. It is argued that the police should have controlled the complainant better and told him the manner in which it was permissible and impermissible to ask questions and have discussions with the accused. In my view those submissions are misplaced.
In regard to what was said in the subject conversations I would adopt some of the remarks made by the majority in Pavitt at paras (74) and following, particularly the following matters.
The conversation was recorded legally pursuant to a warrant. The accused had not declined to be interviewed by the police and he took the risk when he continued the conversation with the complainant once it turned to questions of what they had done that the complainant might speak to the police. There was nothing in the circumstances in which the conversation occurred which indicates that the accused's statements were unreliable. He could have withdrawn from it at anytime. In fact he invited the complainant to speak to him again and provided the complainant with his mobile telephone number.
Looking merely at the relationship between the complainant and the police he was their agent because the conversation would not have taken place as it did. That is the conversation would most probably not have been recorded if the police had not obtained a warrant and arranged for the complainant to participate in it. However, if the complainant was a state agent in my view he did not exploit any special characteristic of his relationship with the appellant."
I cannot discern any inequality in the conversation. Nor would I conclude any parts of the conversation were the functional equivalent of an interrogation. The complainant had clearly formulated ideas of what he wanted to say to the accused during the conversation and the evidence does not support the proposition that the police scripted how the conversations unfolded.
If the first call suffered from a deficiency of perhaps surprise, the second did not, given that the complainant had been invited by the accused to contact him again to talk about how the complainant was feeling. I do not agree that Pavitt mis-states the test in Broyles. Whilst Pavitt was a majority decision of the Court of Criminal Appeal, it has been unanimously confirmed in Burton and also in the Victorian case of WK. The Broyles decision, standing alone, is not the law in Australia, having regard to what the High Court said in Swaffield & Pavic. If Pavitt has misstated the Broyles test then what was said in Pavitt is in any event a precedent I am required to follow.
Reference was made in the submissions to a case of Juric (2002) 199 ACrimR 408, another Victorian Supreme Court of Appeal decision. I do not see anything in that case that has a direct bearing on the matter before me.
It is my view that sexual assault complainants ought be regarded as being in at least a different category of so-called state agents in that, the police or the other agents employed by them are not usually directly involved in the alleged criminal conduct itself whereas a complainant is.
In the present case the police had a complaint from a young man against a medical practitioner of long standing. The complaint was about what had happened on a single isolated visit. I can understand police would wish to obtain as much evidence as possible before embarking on the charge process. The fact that Senior Constable Page used the complainant as an investigatory tool, realising that this meant the accused would not be cautioned, as would be required if he spoke to the accused, seems to basically state the obvious in regard to "pretext" calls generally. To suggest, really that pretext calls must be accompanied by a warning or the giving of information to the accused as to the purpose of the call would render such calls, in my view, completely worthless. If there is a public policy issue needing to address this particular problem, that is a matter for the parliament because at this point of time, New South Wales' highest criminal court has not said that such calls are inherently unfair and ought be excluded from a criminal trial for any public policy reason.
Obviously, a lot depends upon the circumstances in each particular case. With a complainant though, there is a substantial difference it seems to me, between such a person confronting their alleged abuser as opposed to someone totally unassociated with the alleged events, especially in circumstances where, as I find here, the resulting conversation was unscripted, undirected and unassisted by any police officers except in regard to the general topic and providing the means to make the call. It would have been quite different, for example, if Senior Constable Page had sought to impersonate the complainant over the phone to the accused.
Reference was made to the New South Wales Police Code of Practice for Crime, but that talks about the responsibilities of police once police believe they have sufficient evidence to establish that an accused has committed the offence, which is the subject then of the questioning being carried out.
I do not agree that the Hight Court in Swaffield & Pavic set out a formula for determining who is a state agent that necessarily applies to the present case. In Pavic, apparently Pavic gave evidence to the effect that he was misled by the informer into making the admissions that he made. The High Court agreed with the trial judge that in any event, those admissions were not linked to any fears of being charged with an offence.
The word "eliciting", as has been applied in this context, seems to have developed a legal meaning far beyond its grammatical one and seems to relate to information obtained as a result of a formulaic interview. I do not see these conversations as exhibiting evidence of elicitation, as that expression is understood. Further I am well satisfied that the lies or misrepresentations or subterfuges engaged in by the complainant had no effect on any admissions said to have been made by the accused.
It is argued that the accused was vulnerable with or felt obligated to the complainant and that caused him to say what he said. That submission is based on what the accused said to police in his record of interview in regard to these conversations. It is also said, without evidence to support the assertion, the accused was manipulated or induced into making the admissions he made by some of the misrepresentations uttered by the complainant that I have previously referred to.
I find that submission difficult to comprehend. It is suggested that the accused went along with the complainant's assertions to "calm him down" and as it were, to continue the accused's "duty of ongoing pastoral care" for his patient. If that is indeed the case, I would have expected that there would have been evidence of that on the application. Absent that evidence, I find it difficult to see in this day and age, that a doctor, confronted with a patient complaining of a sexual incident between them, would basically agree with what the patient said had happened because that seemed to be in the patient's best interests at the time.
The defence has also argued that the conversations should be excluded for policy considerations and the unreliability of the admissions. Much of the arguments under these headings overlap with other submissions. However one aspect of the public policy argument relates to the suggested misuse by police of the provisions of the Surveillance Devices Act2007 to investigate matters such as the present alleged sexual assault and obtain covert evidence of telephone conversations.
I was handed a decision by Judge Colefax of this Court where he expressed concern about that situation, and that is R v LDV(No 2) [2013] NSWDC 215. Ultimately the pretext conversations in that case, as I understand it, were disallowed because requirements of the legislation had not been complied with. I do not propose to go into this area except to observe that prior to the Surveillance Devices Act 2007, there was other much older legislation such as the Listening Devices Act 1984 which, when enacted, did not have terrorism or national security in mind but tried to cover the field of unlawfully recorded telephone conversations. It is a matter for the legislature to deal with unexpected uses or abuses of its legislation, not for the Courts, if the conduct is otherwise lawful. It is not being argued that the warrants in the present case were obtained unlawfully.
As to the unreliability of these conversations, nothing has been demonstrated to me that the accused's right to a fair trial has been jeopardised by any statements made by him that have been obtained in circumstances such that those circumstances were likely to have affected the reliability of what was said. I see no evidence that the complainant overbore the accused or misled the accused in such a way that it affected what the accused was saying. I am prepared to accept that initially the accused may not have been able to identify who the complainant was, but that factor can hardly have effected what he later said. Similarly, the fact that the accused may not have had access to his medical records is neither here nor there. Despite that lack of having a record, the accused was prepared and able to continue the conversation, which ensued. In any event, having the medical record (exhibit H on the voir dire) it seems to me is unlikely to have provided him with much assistance in being able to identify the complainant.
Many of the criticisms levelled at the way the conversations developed, could easily have been answered by the accused saying, for example, 'Look I'll have to get my records out and ring you back' or 'Look I'm in the middle of moving house can you ring back'. That did not happen. However, in his record of interview at QA 171, the accused said, "And I thought look I don't know this fellow. I can't remember him. I'm busy at the moment. I'll play along with basically what he wants to hear almost."
Before leaving this general area, I was referred to the two cases of DJS v R;NS v R (2012) NSWCCA 9 and R v XY (2013) NSWCCA 121. Both of those cases relate to whether or not a court could take into account whether there was a real possibility of alternative explanations inconsistent with guilt in determining the probative value of evidence led or proposed to be led under s 98 of the Evidence Act.
The ratio of the cases is succinctly stated by Bathurst CJ in the first of those matters, DJS at paras 9 and 10 where he adopted what Whealy JA had said at para 79 to 81. The Chief Justice said;
"The matters to which the Court is to have regard in performing this task is the evidence sought to be adduced either on its own or having regard to other evidence adduced or to be adduced by the party seeking to tender it. It is no part of the Court's task to engage in a fact finding exercise to determine the reliability of credibility of the evidence or to form a view one way or the other, whether the jury would in fact find the evidence to be of significant probative value. The trial judge, in forming a view as to whether the evidence has significant probative value must consider by reference to the evidence itself or other evidence adduced or to be adduced by the party tendering it, whether there is a real possibility if an alternative explanation inconsistent with the guilt of the party of the party against whom it is tendered. This is because the availability of such an alternative hypothesis will be relevant to forming the view required by the section that the evidence has significant probative value. However this does not involve either undertaking the fact finding analysis suggested by counsel or reaching a conclusion that the explanation for the coincidence proffered by the parties seeking to tender the evidence was more probable than an alternative hypothesis. Each of these approaches go beyond what is required by the terms of s 98(1)(b) and would involve the judge usurping the fact finding role of the jury."
I accept that this is the law in New South Wales. However, I have difficulty in seeing how either of these cases has relevance to the task that I am undertaking on this application. The s98 considerations are different and the testing is made in light of evidence to be adduced in a trial or that has already been adduced, so that the Court can properly assess the probative value of the evidence of itself or by reference to other evidence. The only evidence I have is the conversations, the complainant's evidence, Senior Constable Page's evidence and the untested material in the accused's record of interview. I do not in fact have any evidence of alternative explanations. As Simpson J said in Burton at paragraph 181;
"It does not necessarily follow that the identical approach as set out in DJS, must be taken with respect to contentious evidence where objection is taken under s 137. The two provisions have marked differences."
Further, at para 196 after referring to XY, her Honour said;
"The existence of competing inferences does not have any part to play in the s 137 considerations."
For the above reasons, I am not satisfied that it has been established under s 90 that, having regard to the circumstances of the telephone calls, it would be unfair to the accused to use that evidence.
I am also not satisfied that, if s138 applies to this evidence, any false statement made by the complainant during the course of the calls were likely to cause the accused to make any relevant admission under s 138 (2)(b). I doubt that the complainant would be regarded as a person conducting the questioning as referred to in the subsection.
I was referred to a case of Employment Advocate v. Williamson, and in particular the judgment of Branson J reported at 2001 FCA 1164. The passage is at par 86 where her Honour says,
"As is noted above, in my view, s138 of the Evidence Act does not qualify it by any requirement that the evidence be obtained by a law enforcement officer or by another holder of public office".
Whether Her Honour, with respect, is right about that I do not know because it was a minority judgment. But it seems to me that the conversation, as I understand the conversation in that particular case, was official questioning in the sense that it was questioning by people involved in the investigation of a particular matter, but one would not have regarded those persons carrying out the questioning as being law enforcement officers or holders of public office. In many respects I would not necessarily disagree with her Honour because it seems to me that subs (a) and (b) of subs (2) do not, with respect, make much grammatical sense anyway and especially so in the circumstances of the present case. As I have already indicated I do not accept that this conversation was some sort of formal or formulaic questioning by any person in authority.
In regard to s 137 the evidence is clearly extremely probative of a fact in issue and is clearly prejudicial to the accused. However, unfair prejudice is something more than what more than might be termed the ordinary prejudice that might flow from evidence tendered by the Crown that tends to inculpate an accused person. The prejudice to be avoided is prejudice arising from an application of that evidence in question in a way other than what the evidence was led for such that it creates an unfairness to an accused that maybe difficult or impossible to overcome, such as information that might be led for one purpose but the jury may use it improperly to come to a conclusion as to something else. Subject to appropriate directions I cannot see how this evidence might be used in an unfair way beyond the ordinary or natural prejudice that attracts to that evidence in any event.
For these reasons I dismiss the application to have the evidence of the two telephone calls excluded from the jury.
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Decision last updated: 30 September 2014
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