Sepulveda v R - [2006] NSWCCA 379

Reported Decision:
167 A Crim R 108

New South Wales

Court of Criminal Appeal

CITATION: Sepulveda v R [2006] NSWCCA 379

HEARING DATE(S): 19 May 2006

JUDGMENT DATE:
29 November 2006

JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 2; Johnson J at 3

DECISION: 1. Time to file a Notice of Appeal with respect to the second trial extended to 16 May 2006; 2. The appeals against conviction at the first and second trials are dismissed

CATCHWORDS: CRIMINAL LAW - appeals against conviction at two trials - offences of indecent assault and buggery committed against three minors between 1978 and 1984 - complainant covertly recorded conversation in 1999 with Appellant containing admissions - no warrant under Listening Devices Act 1984 authorising recording - whether recording was "reasonably necessary for the protection of the lawful interests" of complainant who recorded conversation - construction of s.5(3)(b)(i) Listening Devices Act 1984 - trial judge erred in holding that requirements of s.5(3)(b)(i) were satisfied - recording admissible under s.138 Evidence Act 1995 - whether trial judge erred by declining to use the "dangerous to convict" formula as part of the direction under Longman v The Queen (1990) 168 CLR 79 - no error established

LEGISLATION CITED: Crimes Act 1900
Listening Devices Act 1984
Evidence Act 1995
Criminal Appeal Act 1912

CASES CITED: Douar v The Queen (2005) 159 A Crim R 154
Longman v The Queen (1990) 168 CLR 79
R v Le (2004) 60 NSWLR 108
Violi v Berrivale Orchards Limited (2000) 99 FCR 580
Amalgamated Television Services Pty Limited v Marsden [2000] NSWCA 167
R v Eade (2001) 118 A Crim R 449
Miller v TCN Channel Nine (1988) 36 A Crim R 92
Lawrence v NSW Police Service (2004) 144 A Crim R 396
Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355
Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285
Love v Attorney General for NSW (1990) 169 CLR 307
Commissioner of Police v Barbaro (2001) 51 NSWLR 419
R v Haddad and Treglia (2000) 116 A Crim R 312
Scanruby Pty Ltd v Caltex Petroleum Pty Ltd [2000] NSWIRComm 89
Elcham v Commissioner of Police [2001] NSWSC 614
State Drug Crime Commission v Chapman (1988) 12 NSWLR 447
Pelechowski v Registrar of Court of Appeal (NSW) (1999) 198 CLR 435
Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 465
Udino v Aldo (1998) 16 NSWCCR 418
Taikato v The Queen (1996) 186 CLR 454
T v Medical Board of South Australia (1992) 58 SASR 382
R v Smith and Turner (1994) 63 SASR 123
Public Trustee v Alvaro (Supreme Court of South Australia, Legoe J, 19 July 1995, unreported, BC9502314)
See v Hardman [2002] NSWSC 234
House v The King (1936) 55 CLR 499
R v O’Donoghue (1988) 34 A Crim R 397
Kardoulias v R (2005) 159 A Crim R 252
Australian Gas Light Company v Valuer General (1940) 40 SR(NSW) 126
Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139
R v WSP [2005] NSWCCA 427
R v Johnston (1998) 45 NSWLR 362
R v JJB [2006] NSWCCA 126
R v DBG (2002) 133 A Crim R 227
RAK v Western Australia [2006] WASCA 6
New Zealand v Moloney [2006] FCAFC 143
DRE v R [2006] NSWCCA 280
Wade v R [2006] NSWCCA 295
Robinson v R (2006) 162 A Crim R 88

PARTIES: Heriberto Robinson Sepulveda (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2256/2005

COUNSEL: Mr T Molomby SC (Appellant)
Mr D Arnott SC (Respondent)

SOLICITORS: Maxwell Berghouse & Ives (Appellant)
SC Kavanagh, Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/1186

LOWER COURT JUDICIAL OFFICER: His Honour Judge Woods QC

LOWER COURT DATE OF DECISION: 17 December 2004

LOWER COURT MEDIUM NEUTRAL CITATION: ---

2256/2005

McCLELLAN CJ at CL
HISLOP J
JOHNSON J
29 November 2006

HERIBERTO ROBINSON SEPULVEDA v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Johnson J.

2 HISLOP J: I agree with Johnson J.

3 JOHNSON J: The Appellant, Heriberto Robinson Sepulveda, appeals against conviction for a number of offences of buggery and indecent assault following two separate trials before his Honour Judge Woods QC and juries in the Sydney District Court in 2004.

Convictions of Appellant Following Two Trials

4 At the first trial, which occurred between 7 and 28 June 2004, the Appellant was convicted of two counts of indecent assault upon JD under s.81 Crimes Act 1900 and five counts of buggery against BD under s.79 Crimes Act 1900, together with six counts of indecent assault upon BD under s.81 of that Act. All offences for which the Appellant was convicted at the first trial occurred between 1978 and 1984.

5 At the second trial, which took place between 1 and 8 December 2004, the Appellant was convicted of two counts of indecent assault upon ID under s.81 Crimes Act 1900. These offences took place between 1979 and 1981.

6 On 17 December 2004, his Honour Judge Woods QC sentenced the Appellant to terms of imprisonment giving rise to a total effective term of imprisonment for 11 years with a non-parole period of seven years, with both periods to date from 28 June 2004. The Appellant is not eligible for release on parole until 27 June 2011.

7 For present purposes, it is not necessary to set out the individual sentences imposed for each of the various offences for which the Appellant was convicted. The present appeal relates to conviction only. The Appellant has abandoned his application for leave to appeal against sentence. Of course, if the appeal against conviction succeeds with respect to any of the counts for which he was convicted, it will be necessary to consider the impact of that result upon the sentences imposed in the District Court.

Application for Extension of Time to Appeal Against Conviction at Second Trial

8 Until shortly before the hearing of this appeal on 18 May 2006, the Appellant’s Notice of Appeal was confined to the first trial and the grounds of appeal which had been notified were limited to that trial. On 16 May 2006, the Appellant’s solicitors gave notice of appeal with respect to the second trial. The Appellant seeks an extension of time to file that Notice of Appeal.

9 It is apparent that the Appellant has failed to comply with the provisions contained in clauses 3A and 3B Criminal Appeal Rules with respect to the second trial. An application for an extension of time may be made after the expiration of the relevant period: clause 3B(2). The Court has a discretion with respect to an extension of time. In exercising that discretion, the Court has regard to the prospects of success on the appeal itself, and will usually require some satisfactory explanation as to why an appeal was not brought within the time allowed, especially if the delay is considerable: Douar v The Queen (2005) 159 A Crim R 154 at 163 [53].

10 In the present case, Mr Molomby SC, for the Appellant, submits that the grounds of appeal against conviction with respect of the second trial are virtually the same as the grounds concerning the first trial. He informed the Court that the explanation for the failure to lodge an appeal concerning the second trial is oversight on the part of the Appellant’s legal representatives.

11 The Crown neither opposed nor consented to the application for extension of time. At short notice, the Crown prepared written submissions and a trial summary concerning the second trial so that the Court would be in a position to deal with that appeal at the same time as the appeal concerning the first trial, if an extension of time was granted. The Court was assisted greatly by the urgent preparation of this material by the Crown.

12 It is true that the grounds of appeal against conviction are very similar with respect to both the first and second trials. In these circumstances, an extension of time ought be granted to the Appellant so that, in the interests of justice, the grounds of appeal concerning both trials may be determined by this Court. This approach has been influenced significantly by the willingness of the Crown to prepare urgently for the appeal with respect to the second trial, so that the Court is in a position to deal with both appeals at the same time. It is the case, however, that the appeal papers provided to this Court are prepared by reference to the trial or trials to which grounds of appeal relate. In this case, due to the Appellant’s delay, the Court received material concerning the second trial in a fragmented and disorganised way during the course of the hearing.

13 The decision to extend time in the present appeal ought not be taken as encouragement to other appellants to leave decisions of this type to the last minute, in the expectation that an extension of time will necessarily be allowed.

The Grounds of Appeal

14 The grounds of appeal pressed at the hearing of the appeal were as follows.

15 As to the first trial:

Ground 1 - The learned trial Judge erred in law in admitting evidence of a clandestinely recorded conversation.

Ground 2

Longman v The Queen

16 As to the second trial:

Ground 1 - The learned trial Judge erred in law in admitting evidence of a clandestinely recorded conversation.

Ground 2 - The learned trial Judge erred in law in failing to give a Longman direction, or failing to give an adequate Longman direction, in relation to the complainant ID.

The Crown and Defence Cases at the First Trial

The Crown Case

17 JD and BD are brothers. They have a middle brother, ID. The boys’ father was killed in a motor car accident in Lebanon before the family migrated to Australia. The Appellant (then known as Albert Robinson) lived in the same street in Stanmore as the boys and their mother. At times which are presently relevant, the boys were spending considerable time on the streets without parental guidance.

18 When they first met the Appellant, JD was aged 12 years (date of birth 25 April 1970) and BD was aged 12 or 13 years (date of birth 27 March 1966).

19 It was the Crown case that the Appellant befriended the victims JD and BD and later developed a relationship with their mother. The boys played with other children in a playground in the street in Stanmore where they lived. Over the course of several years, the Appellant engaged in sexual behaviour separately with JD and BD. This usually occurred at the offices or business premises where the Appellant worked as a contract cleaner in the evenings. The older brother, BD, worked for the Appellant as his assistant for several years. Both victims gave evidence that the Appellant paid them to engage in sexual behaviour.

Counts Concerning JD

20 The Appellant stood trial on six counts concerning JD, and was convicted on two counts.

21 Count 1: Between 1979-1981, when JD was about 9-11 years old, he was with the Appellant when he was cleaning the Wilson’s Fabrics Building in Waterloo. He remembered the Appellant playing with, and then sucking, his (JD’s) penis. JD said that he (JD) ejaculated into the Appellant’s mouth (verdict - not guilty).

22 Count 2: Between 1982-1984, when JD was about 12-14 years old, he was helping the Appellant cleaning a building in Neutral Bay. He remembered them getting on the floor and sucking one another’s penises in what he now described as a “69” position (verdict - guilty).

23 Count 3: Again between 1982-1984, when JD was about 12-14 years old, he recalled that he got cheeky with the Appellant, who slapped him in the face, but the Appellant soon after apologised and offered to buy him a watch, as well as pay him for sex. JD sucked the Appellant’s penis until the Appellant ejaculated (verdict - guilty).

24 Count 4: In 1983-1984, when JD was about 13-14 years old, he was with the Appellant in another building at Lane Cove. He recalled that there were pool umbrellas and lounges on display in part of the building. The Appellant asked if he could lick JD’s anus and, in due course, JD let him do this. Whilst the Appellant was doing this, the Appellant played with JD’s bottom until JD ejaculated. This happened in the pool showroom (verdict - not guilty).

25 Count 5: In 1983-1984, when JD was about 13-14 years old, again at the Lane Cove building, the Appellant was licking JD’s bottom and also masturbating him. The Appellant tried to place his penis in JD’s anus but JD jumped up and got cranky at the Appellant (verdict - not guilty).

26 Count 6: In 1983-1984, when JD was about 13-14 years old, again at the Lane Cove building, the Appellant was simulating anal sex between JD’s legs and attempted to stick his penis in JD’s anus. JD jumped up and did not let him do this (verdict - not guilty).

Counts Concerning BD

27 The Appellant stood trial on 13 counts concerning BD, and was convicted on 11 counts.

28 Count 7: Between 1978-1980, when BD was about 12-13 years old, BD remembered being in a building (Wilson’s Fabrics at Waterloo) with the Appellant and going with him into the sick bay in a ladies’ toilet. The Appellant unzipped his (the Appellant’s) pants, pulled out his penis which was hard and erect, and BD sucked the Appellant’s penis until the Appellant ejaculated onto a paper towel because BD would not accept it in his mouth (verdict - guilty).

29 Count 8: At the same time and place as Count 7, the Appellant performed oral sex on BD (verdict - guilty).

30 Count 9: Between 1978-1980, when BD was about 12-13 years old, again at Wilson’s Fabrics at Waterloo, the Appellant and BD were in the sick bay in the ladies’ toilet. The Appellant asked him to try anal sex. BD was lying on his side and the Appellant began penetrating him but it hurt (verdict - guilty).

31 Count 10: At the same time and place as Count 9, once the Appellant and BD stopped having anal sex, they finished off with oral sex (verdict - guilty).

32 Count 11: Between 1979-1980, when BD was about 13 years old, again at Wilson’s Fabrics at Waterloo, he remembered lying flat on his stomach after the Appellant placed him face down on the lounge. The Appellant knelt down so he was sitting on his heels, dragged BD up by his hips and put his penis part way up BD’s anus. He stopped and sucked BD’s penis, then continued with the anal intercourse, until BD ejaculated in his mouth (verdict - guilty).

33 Count 12: At the same time and place as Count 11, BD asked the Appellant to wash his penis. The Appellant went out, then came back into the room and BD sucked the Appellant’s penis until the Appellant ejaculated (verdict - guilty).

34 Count 13: Between 1979-1980, when BD was about 13 years old, he was with the Appellant and another boy in the sick bay at Wilson’s Fabrics at Waterloo when the Appellant penetrated BD’s anus with his penis while the other boy was kneeling down in front of BD and sucking BD’s penis (verdict - guilty).

35 Count 14: Between 1980-1981, when BD was about 14 years old, he went to the Appellant’s house in Stanmore during the day. BD remembered sleeping, watching videos and waking up and saw that the Appellant was pulling down his pants, and then anally penetrating him, for a few minutes until the Appellant ejaculated into BD’s anus (verdict - guilty).

36 Count 15: At the same time and place as Count 14, the Appellant masturbated BD until BD ejaculated (verdict - guilty).

37 Count 16: Between 1982-1983 when BD was about 16 years old, he was cleaning a building at Lane Cove with the Appellant. BD particularly remembered this incident because he had his learner’s permit, and was permitted to drive the Appellant’s Holden Monaro. There was a soft couch in the building and he remembered lying face down. The Appellant anally penetrated BD until the Appellant ejaculated (verdict - guilty).

38 Count 17: At the same time and place as Count 16, the Appellant performed oral sex on BD (verdict - guilty).

39 Count 18: This was an allegation of buggery at Lane Cove between 1982-1984. However, BD did not give evidence of this occurring. His evidence was that he was participating in a threesome with another boy and the Appellant and the other boy sucked BD’s penis until BD ejaculated (verdict of not guilty by direction).

40 Count 19: This was an allegation of buggery at the Appellant’s new home in Auburn in 1983-1984 when BD was “about 18”. In light of the dates and the decriminalisation of homosexuality between consenting adults in 1984, a verdict of not guilty was directed on this count.

Relationship, Tendency and Coincidence Evidence

41 The Crown led relationship evidence of other sexual behaviour between the Appellant and the victims. Some of the charges were particularised in the indictment by reason of each victim’s particular memories or associations of other events that occurred in these incidents.

42 Tendency and coincidence evidence was led by the Crown arising from the Appellant’s conviction for homosexual intercourse in 1985 with a separate victim, BG, when BG was aged 14 years. This evidence was given through a retired police office, Mr Fluke. He testified that, on 30 August 1989 (having been charged in February 1986), the Appellant pleaded guilty to having homosexual intercourse on about 10 December 1985 with BG, aged between 10 and 18 years, for which he was sentenced to imprisonment for 18 months to be served by way of periodic detention. The Appellant had picked up BG, a mentally disabled 14-year old boy, from the vicinity of the Sydney Entertainment Centre and had taken him to one of his cleaning jobs in Neutral Bay. He had anal intercourse with the boy whilst he lay naked face down on the lounge. Prior to driving the boy home, the Appellant gave him $30.00 cash. In addition to the evidence of Mr Fluke, the Crown called BG who gave evidence to the effect that the Appellant sexually assaulted him in the manner described above.

43 The Crown contended that there were striking similarities between the indecent sexual conduct of the Appellant towards BG and his conduct towards the complainants JD and BD (except with respect to Counts 14 and 15). This included sexual conduct having occurred in empty buildings where the Appellant regularly cleaned and his payment of money for sex. The Crown contended that this was evidence available to be used by the jury to conclude (in respect of counts other than Counts 14 and 15), that the Appellant had “a tendency to strike up relationships with boys of an age similar to the alleged victims in this case, to take them to buildings which he had a contract to clean, to engage in indecent sexual contact with them, and to pay them small sums of money” (SU20). The Crown contended that it was also open to the jury to consider that the Appellant’s conduct in the present case, and in the case of BG, was “so strikingly similar that you would regard this coincidence as tending to remove any doubt from your mind that the accused was guilty of the present charges - that is to say, all the charges except 14 and 15” (SU20).

The Complainants’ Mother

44 The mother of JD and BD gave evidence in the Crown case. She said that when BD was aged 13 years, she went to pick him up from school, only to find the Appellant had taken him to buy a pair of shoes. She also stated that the Appellant took her three children to work with him for $20.00 each and brought them food from McDonalds. She gave evidence that he took BD with him to work until after midnight and, as a result, the boy started to miss school. Ultimately, the mother and the Appellant had a relationship, he asked her to marry him and they spoke about buying a house. However, as she expressed it, “he was lying to me” (T290.51).

BD’s Wife

45 BD’s wife gave evidence in the Crown case. In 1986, she and BD wanted to marry. She came from a strict Greek background and they both anticipated opposition from their respective families. When they discussed how they would break the news to their families, BD informed her that there was something he had to tell her before they got married. BD told her “when I was working as a cleaner at night my mother’s boyfriend had sex with me and later he offered money for sex” (T340.44) and that “he’s fleeing from the police”. BD and his then fiancé married in June 1990.

The Recorded Conversation Between the Appellant and JD

46 The clandestinely recorded conversation, referred to in Ground 1 with respect to both trials, came into existence in the following way.

47 JD gave evidence that he did not have contact with the Appellant for some five years from about 1994 (when he was aged 24 years) to 1999 (when aged 29 years). In May 1999, JD contacted the Appellant, asking if he had a cleaning job that he could give him. After contacting the Appellant, JD met with him and had consensual sex at one of the buildings that the Appellant was cleaning. It was on a second visit to this building that JD recorded a conversation with the Appellant on a concealed micro cassette tape recorder. In the conversation, the Appellant makes admissions of having under-aged sex with the brothers (T153-5). An edited version of the tape was admitted at the trial (Exhibit B) and played to the jury. In his remarks on sentence on 17 December 2004, his Honour Judge Woods QC observed that the tape recording supplemented the direct evidence of the three D brothers and “provided powerful admissions of his sexual behaviour and relationships with the boys during the period in question” (ROS5).

48 Before the jury, JD said the purpose of taping the Appellant “was because he sexually abused me when I was young and plus he sexually abused my brothers and he broke my mother’s heart” (T155.1, 9 June 2004). JD explained “yes, I was just trying to get what happened to us when we were young and plus some of the other boys that were around, I was just trying to get justice for everyone” (T155.33).

49 After the cleaning job, the Appellant drove JD home. As JD got out of the car, he informed the Appellant that he had taped their conversation. According to JD, the Appellant cried and offered him $50,000.00 for his silence and the tape. A week later, JD settled on $2,000.00 which he needed for arrears on rent. He met at a Commonwealth Bank where the Appellant organised for JD to sign a document that he would not take the Appellant to court.

50 JD signed two documents. The first (Exhibit C) stated “I [JD] will setel [sic] for $2,000.00 not to take Albert Robinson to court for melestoring [sic] me and my brothers and friends 19 years ago. JD”. The second document (Exhibit D) stated “I, [JD], will not take Albert Robinson to court because he paid me $2,000.00”. The Appellant handed JD the money, which JD later discovered to be only $1,750.00, and JD handed the Appellant a tape - but it was not the right tape. JD kept the correct tape. Exhibits C and D (the documents written by JD) were found by police in the Appellant’s house when he was arrested a year later.

51 With the money obtained from the Appellant, JD stated that he paid rent, bills and bought groceries. Records from a Century 21 Agency (Exhibit H) showed JD to be behind in his rent, which he rectified with payments of 11 June 1999 (of $280.00 plus $10.00) and 12 July 1999 ($420.00).

52 Two weeks later, JD spoke to a solicitor, Ms Hopkinson, who had carriage of JD’s worker’s compensation claim with respect to a thumb injury. He told her what had happened to him when he was younger and about the tape recording (T164.30). Ms Hopkinson referred JD to the police, to whom he spoke and handed the tape recording, on 19 July 1999.

53 After taking a formal statement from JD which took several days due to its length, police approached his brother BD, who declined to make a statement. Some years later, BD was subpoenaed to court on 25 March 2002, and, on that occasion, he spoke to police. On 25 March 2002, the Appellant was standing trial with respect to alleged offences committed against JD and his brother ID. As a result of BD giving a statement to police and there being fresh evidence and allegations available, that trial was vacated.

54 On 30 August 2000, the Appellant was arrested. When asked by the police “Did he [JD] tape a conversation between you two?”, the Appellant said, “Yes, he came to one of my jobs, he used a knife to make me say things, he was really crazy, he gave me some tape or something, it was the wrong one …” (T233.54, 10 June 2004). The Appellant also told police that he gave JD the sum of $2,000.00 for rent which he got from his father’s bank account (T233.35). The Appellant had exactly the same name as his father. His father’s Commonwealth Bank records (Exhibit K; T246, 10 June 2004) indicated that an amount of $1,760.00 was withdrawn on 4 June 1999.

The Defence Case

55 The Appellant gave evidence at the first trial. He denied anything of a sexual nature took place between himself and JD and BD at any time whilst they were under 18 years of age. He acknowledged a sexual relationship with BD when BD was aged between 18 and 21 years old, at which time he said BD met his fiancé. He also acknowledged having sex with JD, but only when JD was an adult.

56 It was the Appellant’s case that, as a result of telling JD about his prosecution for sexual intercourse with the other boy (BG), JD was motivated to extort money from him, threatening to accuse the Appellant of under-age sex with him if he did not pay (T429-431). The Appellant had been paying money to JD and pressure was being applied on the Appellant to pay more money to him, especially at the time when JD made the tape recording of the conversation, and when the D’s family home burnt down (T204-5, 430-434, 438-440). The Appellant said that he was afraid that he may be assaulted by JD (T432). He said that he gave JD the sum of $1,750.00 from a Commonwealth Bank account when they went to the bank together, and a further $250.00 a few days later (T454-455).

57 The Appellant said that he lived in a homosexual relationship with Jose Matto from 1984 to 1989. Mr Matto gave evidence confirming this fact. In relation to the alleged offences, he said that there were security cameras, security guards and staff at the various buildings that the Appellant cleaned. Mr Matto also worked with the Appellant on a regular basis for several years and their supervisors regularly visited the premises whilst they were cleaning to check on progress on the work and to supply them with cleaning materials.

58 Mr Matto gave evidence that when he was working with the Appellant, he never saw any boys in the buildings, and he had only seen BD once when he came to the door asking for the Appellant (T580).

59 The Appellant agreed that BD had worked with him from the age of about 16-17 years, but he denied having sexual relations with him until he was 18 years old.

60 In relation to the recorded conversation with JD in 1999, the Appellant said that he felt threatened by JD for some time (he knew JD had criminal convictions) and during the recorded conversations, JD had his hand in his pocket, which caused the Appellant alarm because he thought he might be harmed if he disagreed with JD. He agreed with various incriminating propositions put forward by JD about under-age sex with the brothers to protect his own safety (T441-449). According to the Appellant, as he dropped JD off following the conversation, JD attempted to punch him through the window of the vehicle (T450). He said that JD left a threatening message on the Appellant’s answering machine at home demanding money from him (Exhibit 2, T435-6). So far as the recording on the micro cassette tape was concerned, the Appellant said he gave inaccurate responses to JD because he was scared and made “him happy with my answers”. He said the references to sex in the tape were at a time when they were adults, not children. On the tape, the Appellant was heard to say “[BD] was in love with me”. The Appellant said that if JD thought “if I have someone of his family on his side he will act in a different way”. In cross-examination, the Appellant agreed that he did not know that JD had a tape recorder. Despite having told the police that JD “used a knife to make me say things”, the Appellant agreed that he never saw a weapon.

61 The Appellant said that he gave $1,760.00 from the bank account because JD threatened him. He said that JD threw the two notes (Exhibits C and D) on the back seat of his car. He read one, but not the other and kept them as souvenirs.

62 With respect to this conviction in 1989 for the offence against BG, the Appellant said that, despite being represented by a lawyer, he had pleaded guilty to the offence not because he was guilty, but because it would shorten an otherwise “long process”, and he did not want to interfere with his family who were arriving in Australia. He said that a number of matters in the Agreed Facts put before the Court were untrue. One of those matters was that he had put the boy in a room with a television and a lounge. The Appellant said with respect to this, “That is impossible because that was [an] advertising company and people used to work there in the evening all night”.

The Crown and Defence Cases at the Second Trial

63 Before turning to the grounds of appeal, it is convenient to refer to the Crown and defence cases at the second trial.

The Crown Case

64 ID was born on 17 March 1969. He gave evidence that, after the family arrived in Australia, they moved around a lot. In the late 1970s, the family moved to Stanmore and he went to Stanmore Public School. In 1979, ID was in Year 4 at Stanmore Primary School (Exhibit C).

65 ID said that, one day while he was living at Stanmore Road, when he was 10 years old, he was with his brothers BD and JD, and with another boy, RM (and perhaps DB) when RM introduced him to the Appellant. RM was a few years older than the D boys. The Appellant lived very close to the D family. The Appellant was driving a blue Ford Fairlane. ID, along with his brothers BD and JD and RM, went with the Appellant to Maroubra to a car park adjacent to a toilet block. RM asked ID to go with him to the toilet. He did and the Appellant followed. In the toilet block, in the presence of RM who masturbated himself, the Appellant “unzipped himself” and placed his penis into ID’s mouth and, whilst holding the boy’s head, thrust backwards and forwards (T16, 1 December 2004). ID said this was the first time this happened and “it is something you don’t forget” (T17, 1 December 2004). This was the first count on the indictment.

66 BD and JD gave evidence at the second trial. They recalled an occasion when they went to the beach at Maroubra. Neither of them witnessed the assault. BD thought the boy, DB, was also there and remembered playing around the rock pool. BD also gave evidence that RM came up to ID and spoke to him, as did the Appellant. However, BD thought at the time that he had successfully stopped his brother, ID, from going to the toilet with the Appellant.

67 The second count occurred at a later time. ID and JD wagged school and went around to the Appellant’s unit at Stanmore. In the bedroom, whilst ID was naked, the Appellant sucked his penis and attempted to insert his fingers into his anus. According to ID, the Appellant said “Go on, it is only my fingers” and ID said “No, you can’t do that”. The Appellant said “Oh well, when can I fuck you, let me fuck you?” and ID said “No, you can’t do that”. After the Appellant finished the act of fellatio, he took a Polaroid photograph of ID naked, lying on the bed (T22-23, 1 December 2004). When ID left, the Appellant gave him and JD some money (T18-26, 1 December 2004).

68 JD gave evidence that he did not witness this assault. He did give evidence that, prior to leaving the unit, the Appellant took a photograph of himself or his brother with a Polaroid camera (T21, 6 December 2004), as well as giving them money. Both ID and JD gave evidence that when they first arrived, the Appellant said to them “my brother mustn’t find out”. The Crown relied upon this as an indicator of impropriety, in the Appellant’s mind, surrounding the visit.

69 BD also gave evidence that, on an occasion other than Count 2, when he went to the Stanmore unit with JD, he saw ID naked on a couch with the Appellant. The Appellant told BD he was “just going to suck him off .. I’m not going to have anal sex with him”. ID did not recall this occasion, nor did JD.

70 There was context evidence given by ID of other uncharged sexual contact between himself and the Appellant, including an occasion when the Appellant tried to kiss him when ID accompanied the Appellant to a cleaning job at Neutral Bay. ID referred to another occasion when he was with the Appellant at one of his cleaning jobs, and the Appellant sought to get ID into a toilet to pretend they would have sexual contact together as a lure to get another boy, DB, into the same situation.

71 Evidence was given that RM declined to make a statement to police and that DB could not be found.

72 The tape recording of the conversation between JD and the Appellant in May 1999 was admitted into evidence at the second trial (Exhibit D). The Appellant was heard to say on the tape that, on an occasion when he was driving the car, ID grabbed the Appellant’s hand and put it on his (ID’s) penis. On another occasion, “in the building at Neutral Bay”, the Appellant put ID’s pubic hair in his wallet.

The Defence Case

73 The Appellant did not give evidence or call witnesses in the defence case at the second trial. He denied the allegations to police. His counsel sought to show, through cross-examination, that there were inconsistencies in the evidence of ID and his brothers that were such that the jury would have a reasonable doubt as to the Appellant’s guilt. With respect to the tape recording, defence counsel submitted to the jury that there was nothing on it about the Maroubra or Stanmore incidents, that it was full of laughter and should not be regarded seriously.

Ground 1 - The Tape Recording Issue

74 Mr Molomby SC submits that the tape recording of the conversation between JD and the Appellant in May 1999 ought not to have been admitted into evidence in either the first or second trials. To place the arguments into context, it is appropriate to refer to some of the provisions of the Listening Devices Act 1984 (“LD Act”).

Relevant Provisions of LD Act

75 A number of definitions contained within s.3 LD Act are presently relevant:

“3 Definitions

(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

…

listen to

includes hear.

listening device

means any instrument, apparatus, equipment or device capable of being used to record or listen to a private conversation simultaneously with its taking place.

party

, in relation to a private conversation, means:

(a) a person by or to whom words are spoken in the course of the conversation, or

(b) a person who, with the consent, express or implied, of any of the persons by or to whom words are spoken in the course of the conversation, records or listens to those words.

principal party

, in relation to a private conversation, means a person by or to whom words are spoken in the course of the conversation.

private conversation

means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only:

(a) by themselves, or

(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so.

…

(3) A reference in this Act to:

(a) a report of a private conversation includes a reference to a report of the substance, meaning or purport of the conversation, or

(b) a record of a private conversation includes a reference to a statement prepared from such a record.”

76 Section 5 LD Act provides:

“ Prohibition on use of listening devices

(1) A person shall not use, or cause to be used, a listening device:

(a) to record 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.

(2) Subsection (1) does not apply to:

(a) the use of a listening device pursuant to a warrant granted under Part 4,

(b) the use of a listening device pursuant to an authority granted by or under the Telecommunications (Interception) Act 1979 of the Commonwealth or any other law of the Commonwealth,

(c) the use of a listening device to obtain evidence or information in connection with:

(i) an imminent threat of serious violence to persons or of substantial damage to property, or

(ii) a serious narcotics offence,

if it is necessary to use the device immediately to obtain that evidence or information,

(d) the unintentional hearing of a private conversation by means of a listening device, or

(e) the use of a listening device to record a refusal to consent to the recording of an interview by a member of the police force in connection with the commission of an offence by a person suspected of having committed the offence.

(3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:

(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or

(b) a principal party to the conversation consents to the listening device being so used and:

(i) the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party, or

(ii) the recording of the conversation is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

(4) Where a listening device is used in the circumstances referred to in subsection (2) (c) and its use would, but for subsection (2) (c), be contrary to this section, the person who used the device shall:

(a) forthwith cause to be served on the Attorney General or a prescribed officer notice of that fact, and

(b) within 7 days after its use, furnish a report, in writing, to the Attorney General:

(i) containing particulars of the circumstances in which the device was used, and

(ii) without affecting the generality of subparagraph (i), containing the same particulars, and specifying the same matters, as are required by section 19 (1) (b) in relation to the use of a listening device pursuant to a warrant granted under Part 4.”

77 Section 7 LD Act is in the following terms:

“ Prohibition on communication or publication of records of private conversations by parties thereto

(1) A person who has been a party to a private conversation and has used, or caused to be used, a listening device to record the conversation (whether in contravention of section 5 or not), shall not subsequently communicate or publish to any other person any record of the conversation made, directly or indirectly, by the use of the device.

(2) Subsection (1) does not apply where the communication or publication:

(a) is made to another party to the private conversation or with the consent, express or implied, of all of the principal parties to the conversation,

(b) is made in the course of legal proceedings,

(c) is not more than is reasonably necessary for the protection of the lawful interests of the person making the communication or publication,

(d) is made to a person who has, or is, on reasonable grounds, by the person making the communication or publication, believed to have, such an interest in the private conversation as to make the communication or publication reasonable under the circumstances in which it is made, or

(e) is made by a person who used the listening device to record the private conversation pursuant to a warrant granted under Part 4 or pursuant to an authority granted by or under the Telecommunications (Interception) Act 1979 of the Commonwealth or any other law of the Commonwealth.”

78 Part 3 LD Act (ss.12-14) relates to admissibility of evidence. Sections 12 and 13 provide as follows:

“12

Interpretation

In this Part, a reference to the giving of evidence of a private conversation that has come to the knowledge of a person as a result of the use of a listening device includes a reference to the production of a record of such a private conversation.

Inadmissibility of evidence of private conversations when unlawfully obtained

(1) Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device in contravention of section 5:

(a) evidence of the conversation, and

(b) evidence obtained as a direct consequence of the conversation so coming to the knowledge of that person,

may not be given by that person in any civil or criminal proceedings (including proceedings for or in connection with the grant of bail).

(2) Subsection (1) does not render any evidence inadmissible:

(a) if all of the principal parties to the private conversation concerned consent to the evidence being given,

(b) if the private conversation concerned comes to the knowledge of the person called to give the evidence otherwise than in the manner referred to in that subsection, notwithstanding that the person also obtained knowledge of the conversation in such a manner,

(c) in proceedings for an offence against this Act or the regulations, or

(d) in proceedings for:

(i) an offence punishable by imprisonment for life or for 20 years or more, or

(ii) a serious narcotics offence,

(or in proceedings for or in connection with the grant of bail in any such proceedings) if the court considers that the evidence should be admissible.

(3) In determining whether to admit evidence as referred to in subsection (2) (d), the court shall:

(a) be guided by the public interest, including where relevant the public interest in:

(i) upholding the law,

(ii) protecting people from illegal or unfair treatment, and

(iii) punishing those guilty of offences, and

(b) have regard to all relevant matters, including:

(i) the seriousness of the offence in relation to which the evidence is sought to be admitted, and

(ii) the nature of the contravention of section 5 concerned.

(4) The court before which any proceedings referred to in subsection (2) (c) or (d) are brought may, at any stage of the proceedings and from time to time, make an order forbidding publication of any evidence, or of any report of, or report of the substance, meaning or purport of, any evidence referred to in subsection (2) (c) or (d).

(5) A person shall not contravene an order made under subsection (4).

Maximum penalty (subsection (5)): 20 penalty units or imprisonment for a term of 12 months, or both.”

Ruling Admitting Tape into Evidence at First Trial

79 In his judgment admitting the tape (in edited form) into evidence at the first trial, his Honour Judge Woods QC said (judgment, 1 June 2004, pages 4ff):

“The Defence contention is that the Listening Devices Act prohibits the behaviour which generated the tape recording. Prima facie of course that is so. The Listening Devices Act 1984 imposes a prohibition on what is colloquially called ‘bugging’ people.

Prior to that legislation, an Act in 1967 made it possible for any person who was a party to a conversation to tape record it unbeknownst to the other person. However in 1984 parliament legislated to change that rule, which it was thought allowed an intrusion into personal privacy and permitted excessive interference in private conversations, so that thereafter one person (often a police investigator) might be authorised by warrant to tape record what the other person thought was a private conversation.

The Listening Devices Act of 1984 still stands. It starts with a general prohibition on the recording of private conversations by listening devices, but permits it where in subs 3 there is a principal party to the conversation who consents to the listening device being so used and the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party. The effect of that provision is to draw a line, perhaps not always a very clear line, but nonetheless to draw a line between situations where listening devices might be used unfairly, wrongly, and with an excessively and unjustified intrusive effect into private conversations and situations where the bugging is justified by the law. Here the Crown contends that the witness [JD] had been molested as a child by the Accused, and that there was a legitimate interest, a lawful interest, in vindicating his right to justice in relation to the wrongs that had been done to him - wrongs which were criminal and serious - and that there was a reasonable necessity for him to tape the conversation to protect his interests, the tape obviously being a more powerful means of proof than merely the word of one man asserting criminal conduct some decades before without independent proof.

The defence contends that this is not the protection of the lawful interests of [JD] - rather it was an exercise in extortion. He ended up taking some $1750 off the Accused. In effect, the exercise was nothing less than blackmail. Therefore, justification provided in s 5(3)(1)(b) of the Listening Devices Act, is not operative in this case. The taping was unlawful, and its use in court should be excluded. It should be regarded as unlawful, in contravention of the Act, and it should have no part in this trial.

In my view it was reasonably necessary for [JD] to protect his lawful interests by making the tape recording. On the evidence of his statements, which I accept as probably true, [JD] had been molested as a child by the Accused. At a later time in life he determined to do something about this to bring the Offender to justice. As well, of course, this would have meant that offences by the Accused against other persons were also bought to light, but that does not stop, in my view, the application of s 5(3)(1)(b) to the witness in this case. [JD] had a lawful interest in vindicating his right as a child not to be sexually assaulted. In making the tape, what he was seeking to do was to protect his personal lawful interests in having justice done. Tape recording the Accused without the latter's knowledge was, it seems to me, reasonably necessary for the protection of that interest. The formula ‘reasonably necessary’ is not an absolute form of words. One bears in mind the purpose of this legislation which is to strike a balance between legitimate interests of privacy and the need to allow for the proper protection of legitimate personal interests.

There may be many ways that a person could protect a ‘lawful interest’. It is not necessary in my view, or appropriate, that s 5(3)(1)(b) be interpreted in such a fashion that the tape recording or the listening device use must be seen as the only possible way that a right could be vindicated. For example, presumably, the witness might have gone to a television station and contributed to a program about sexual assault. He might have joined a political party and urged a Royal Commission into the subject focussing on the Accused. He might have gone to the police and sought to have the police interview the Accused. All these things are possibilities. Nonetheless, in the context of this legislation, it seems to me that the conduct of the witness was lawful. Vindication of an injustice against oneself does not always require immediate resort to the police, although the creation of the tape was shortly followed by the witness taking it to the police by whom it has been used in the process of law which brings us here. Furthermore, it seems to me, the exercise was not rendered unlawful by [JD] taking money. It was, on the evidence before me, I find, not the witness' idea to demand money - rather it was the Accused's idea, having become aware through the clicking of the machine that he was being taped, to offer money to keep the secret of the abuse. It was not, in my view, an exercise in extortion. The taking of the money was simply an opportunistic event that occurred after the relevant facts had occurred.

In my view, as I say, the tape recording was not unlawful under the Listening Devices Act. I do not see it to be unlawful in any other way. Moreover, while large parts of it will need to be edited out, substantial parts of it which will be relevant, and admissible are important evidence in the Crown case. It has considerable probative evidence in relation to all counts which I will allow to be tried together in this indictment. I do not see any unfair prejudice arising against the Accused as a result of this exercise. To the extent that the tape recording has probative force, no doubt it will have an effect on the minds of the jury in persuading them of the validity of the Crown case. That of course is a matter for the jury to estimate, but I anticipate that it will have strong probative impact. I do not see it as being unfairly prejudicial. The words of the Accused, apparently spoken to the witness, were words which he volunteered in response to questions from a friend. The witness

not acting as an agent of the police. He had not in fact been to the police at that stage, notwithstanding that he had a view to the ultimate use of the tape by police. Subject to editing, I will allow that tape to be evidence in the trial.”

Ruling Admitting Tape into Evidence at Second Trial

80 For the purposes of the second trial, objection was taken to the tender of the tape recording. In the course of a judgment delivered on 24 August 2004, his Honour Judge Woods QC admitted the tape recording for the purpose of the second trial (judgment, 24 August 2004, pages 8-11):

“Now as to the listening devices material, as I have said there is material which is before me as exhibit 1F which the Crown seeks to lead. This is a transcript of part of tapes secretly made by [JD] : in short, the part of that that relates to [ID] may be led. Objection is taken to the recording as being unlawful contrary to sections 5 and 7 of the Listening Devices Act. However, that statute says that that illegality will not arise if the tape recording was made in circumstances where it did not go beyond what was necessary for the protection of a person's lawful interests.

The protection of a lawful interest may encompass both business and personal matters. Obviously a person has a lawful interest in vindicating his own reputation, or in ensuring due process of law against an oppressor. So it is with close family members as with individual persons. For example a mother who secretly tape records an admission of a person who committed a sexual assault upon a child would undoubtedly have a lawful interest qua the child. This would be so even though it was not the mother who had been molested, but the child. A similar fact situation to this arose in Western Australia in the case of Ferry v Regina (2003 Western Australian Supreme Court). That case involved different legislation but exemplifies a pertinent fact situation.

The same principle would apply in my view with brother and brother. Society and the law recognise this bond as special, as giving rise to important common interests. When one brother is harmed it may injure a brother in reputation. Commonly one brother will feel motivated by a natural feeling to speak up for or to defend a brother. Brothers carry a significant common genetic inheritance, which motivates brothers to seek to maximise the continuing longevity, prosperity and fecundity of brothers. Darwinian and evolution aside, statute law recognises that brothers may expect to benefit under some inheritance arrangements. For example under that Family Provision Act, being a brother of someone may allow a certain interest which the law recognises.

Here the secret tape was made by [JD] . [JD] made the tape partly to protect his own lawful interests (a jury recently convicted the accused of offences against [JD] ) and partly to protect the interests of his brothers [BD] and [ID] . In my view [JD’s] tape recording of the accused's alleged admissions relating to [ID] are not inadmissible under the Listening Devices Act sections 5 and 7. [JD] had a lawful interest in vindicating [ID] . The law recognises that one brother has a lawful interest in taking steps to protect the emotional integrity, the feelings and the reputation of a brother and to assist in the legitimate prosecution of a possible offender. The tape recording was a much better alternative than resort to violent measures, an extra legal approach not uncommon in child molestation cases. In the circumstances, the steps taken by [JD] did not go beyond what was reasonably necessary for him to protect his lawful interest.

[JD’s] own disordered life meant that in the real world it is unlikely
that his bare word (or the bare words of his brothers, or even all of them) would have sufficed to convince police or a jury of their allegations going back, as they did, more than several decades. The exercise of tape recording was not undertaken by proxy for the police - contrast the situation in Regina v Swaffield , and Regina v Pavic [(1998) 192 CLR 159] , the famous High Court decisions.

On the contrary the exercise was undertaken independently of police. The material produced relating to the accused was highly probative of an improper sexual connection between the accused and the child

. The term ‘guilty passion’ may not be fashionable in the recent criminal jurisprudence of sexual assaults against children, but this is a case where it might be thought notably apt. An apparent admission by an accused of having taken a pubic hair from an eleven year old boy and kept

in his wallet is likely to be viewed by a jury as having strong probative value of an improper sexual relationship. Now as to precisely which parts of the tape recording may be admitted, the material set out in exhibit VD1F will (subject to any further exclusions if I am persuaded that they are appropriate) be permitted.”

81 The Court was informed that this judgment was given for the purpose of a trial in August 2004 which led to a hung jury. The Crown and counsel for the Appellant agreed that the judgment ought be treated as the relevant ruling concerning the objection to the tape recording for the purpose of the second trial in December 2004.

Submissions on Appeal

82 Mr Molomby SC submits that an unusual and central feature of both trials was the admission into evidence of the tape recording and transcript of the conversation in May 1999 between JD and the Appellant. Objection was taken to the tender of the recording on the basis that it was unlawfully recorded, and that its recording did not fall within any exception provided under s.5 LD Act. At the first trial, the learned trial Judge held that the recording fell within s.5(3)(b)(i) LD Act in that the recording of the conversation was “reasonably necessary for the protection of the lawful interests” of JD. A similar ruling was made at the second trial.

83 With respect to both the first and second trials, the Appellant’s ground of appeal contends that the learned trial Judge erred in law in admitting evidence of the recorded conversation. Mr Molomby SC submits that it was not open to the Court to conclude that the conversation fell within s.5(3)(b)(i) LD Act, given that JD’s purpose in recording the conversation was to extract admissions of sexual offences allegedly committed by the Appellant upon a number of males, including JD, many years previously.

84 The Appellant relies upon the decision of this Court in R v Le (2004) 60 NSWLR 108. Mr Molomby SC submits that JD went about to “set up” the Appellant and lure him into making alleged admissions relating to conduct concerning numerous people. About a week prior to the recording, JD had purchased a tape recorder from a Dick Smith store and had contacted the Appellant and had consensual sex with him. One week after that, JD recorded the conversation. He did so to procure admissions by the Appellant in order to take the tape to police.

85 It was the Appellant’s contention that JD recorded the conversations in order to extort money from the Appellant. JD did not take the tape immediately to the police. It was handed to Senior Constable Blackmore on 19 July 1999, even though it had been recorded in about May 1999. JD did receive money from the Appellant prior to taking the tape to police, although the reasons for the Appellant giving money to JD were disputed issues at the trial.

86 Mr Molomby SC submits that the term “lawful interests” in s.5 LD Act must be judged objectively, and must be an actual lawful interest existing at the time of the conversation: Violi v Berrivale Orchards Limited (2000) 99 FCR 580 at 585-6; Amalgamated Television Services Pty Limited v Marsden [2000] NSWCA 167 at paragraphs 20-23. It was submitted that, viewed objectively, JD did not have an existing lawful interest at the time of recording the conversation with the Appellant which was reasonably necessary to protect by means of the recording. There were no court proceedings on foot. JD had not earlier approached the police with allegations of sexual assault. There was no earlier conversation with the Appellant which JD wished to corroborate. It was submitted that JD’s purpose in making the recording was to create evidence. Further, Mr Molomby SC stressed that the conversation related almost entirely to other persons, and not JD.

87 Mr Molomby SC emphasised that, to fall within s.5(3)(b)(i), the recording must be reasonably necessary for the protection of the lawful interests of the principal party. The provision speaks of the “protection”, and not the advancement or vindication, of the lawful interests of that party. He submitted that the use of the term “protection” qualified the provision so that it was confined to a defensive use, including a defensive use in current or possible future litigation. He submitted that this construction did not accommodate the circumstances of the present case. Here, JD recorded the conversation with the Appellant, on the findings of the trial Judge, for the purpose of gathering evidence against the Appellant with respect to past criminal conduct committed against JD and his brothers, BD and ID. Mr Molomby SC submitted that the concept of bringing the Appellant to justice by such means did not constitute a defensive or protective activity of the type caught by s.5(3)(b)(i) LD Act.

88 The Crown submits that the trial Judge was correct in finding that the recording came within s.5(3)(b)(i) LD Act. In this respect, the Crown submitted that his Honour applied the principles in R v Le as emerged, in particular, from the judgment of Adams J, with whom Hulme J agreed. The Crown submitted that the following propositions emerged from that decision, with application to this appeal:

(a) JD had a legal right to engage the Appellant in conversation;

(b) JD had a legal right to repeat the conversation to another person, with or without the permission of the Appellant;

(c) the recording of the conversation simply provided evidence, thereby making it difficult for the Appellant to deny the truth of JD’s account;

“lawful interest”

89 The Crown submits that the Appellant’s contention that there was no evidence from JD regarding his “lawful interests” is wrong. There was evidence before his Honour as to JD’s purpose and motive in making the recording, which his Honour accepted for the purpose of the ruling on admissibility of the evidence. This evidence was directly relevant to the question of “lawful interest” under s.5(3)(b)(i) LD Act. The Crown submitted that even if, for argument sake, the recording had not produced admissions of sexual misconduct towards JD (as opposed to others), he would still have had a lawful interest at the time when the recording took place.

90 The Crown submits that the trial Judge, in fact, took an unnecessarily restrictive view, favourable to the Appellant, of what constituted JD’s “lawful interest”. The Crown submits that JD also had a “lawful interest” in vindicating the criminal wrongs committed upon his brothers just as, in R v Le, Ms Le had a lawful interest in protecting herself from being called a liar by Mr Ranse.

91 Insofar as the Appellant submits in this Court that the purpose of the recording was to extract admissions of under-age sexual conduct so as to blackmail the Appellant for money, the Crown points to the finding made by the trial Judge (as set in paragraph 79 above) which rejected this argument for the Appellant. The Crown points out that, during the course of the first trial, there was no application made by the Appellant to the trial Judge to revisit his earlier ruling on this point. Nor was it argued on appeal that the finding of his Honour Judge Woods QC concerning JD’s purpose and motive in recording the conversation was not open to the trial Judge.

92 The Crown points to the relevance of the tape recording, noting that no submission to the contrary had been made in the District Court or in this Court. The recording that was ultimately admitted contained admissions by the Appellant that he had sex with JD and BD. The Appellant was heard to say on the tape words such as “it was wrong”, “you don’t think and then you just did it”, “I’m sick myself and do you know why I’m sick too? Because thinking about what I did wrong …” (page 33).

93 With respect to JD, the Crown submits that the tape recording rebutted the Appellant’s assertion that JD had not been to the Wilson’s Fabrics Building in Waterloo (page 3). The jury was able to listen to the tape to assess the veracity of the Appellant’s claim that he was afraid of JD who was allegedly blackmailing him for money and threatening to falsely accuse him of sex with under-age boys.

94 In relation to BD, the Crown submits that the Appellant was heard on the recording to admit that he had sex with BD when the latter was 14 years old (pages 4, 15-16), that “BD was in love with me”, “it was wrong” (page 12), “I didn’t force him or anything. I was by myself, living by myself. I was lonely. I needed company … He came, he, he was so nice to me … I didn’t want to damage any boy … but he’s the one who wanted to be with me … you don’t plan … on purpose to do things wrong. Things happen …”, “I was in love with BD. I was in love with BD”.

95 Given the ruling of the trial Judge at both trials, the Crown notes that it was not necessary for his Honour to consider s.138 Evidence Act 1995. The Crown submits, however, that if the trial Judge was wrong in his construction and application of s.5 LD Act, the evidence was nonetheless admissible under s.7(2)(b) LD Act and/or s.138 Evidence Act 1995. The Crown submits that this was not a case of an unjustified “bugging” by a third party of a conversation of two persons who were both ignorant that a recording was being made. Rather, JD sought to vindicate his rights and those of others. The trial Judge found the evidence had considerable probative value and saw no unfair prejudice to the Appellant. The alleged offences were very serious and the evidence was important.

96 The Crown submits that the LD Act only prohibits the recording of a private conversation: s.5(1). It does not prohibit the use of such a recording: R v Eade (2001) 118 A Crim R 449 at 460 [58]. Since the recording was made by JD, the Crown submitted that it could be used in the course of legal proceedings: s.7(2)(b) LD Act.

The Decision in

R v Le

97 The decision of this Court in R v Le was the focus of submissions on the hearing of this appeal, as it was during argument in the District Court. The relevant question posed by a District Court Judge under s.5B Criminal Appeal Act 1912 in R v Le was as follows (at 110 [5]):

“Did I err in law in holding, in the circumstances of these alleged offences and the factual findings as to the appellant’s conduct, that the appellant had not established the statutory defence contained in section 5(3)(b)(i) of the Act?”

98 To place the question posed for determination in R v Le in its factual context, it is appropriate to recite the following background as contained in the judgment of Giles JA at 110-111 [6]-[7]:

“The appellant was a friend of Mr Phuong Ngo, who had been charged with and was subsequently convicted of the murder of Mr John Newman. The appellant claimed that in April 1998 Mr Albert Ranse told her that he, Ranse, had shot Newman. According to the appellant, Ranse told her that she could never use what he told her against him because it would be her word against his.

In co-operation with a friend who worked for Channel 9, on 21 February 1999 video cameras were fitted into the appellant's car, one in the back of the car and the other in the dashboard, and a microphone was attached to the appellant's jacket. On that day and on the next day the appellant picked Ranse up in her car. The jacket was placed over the back of the driver's seat, and when they left the car the appellant took the jacket with her. Unknown to Ranse, his conversations with the appellant in the car and when they left the car were recorded, as to the conversations within the car in images and as to all the conversations in sound. The evidence in the Crown case included videos containing the images and sound.”

99 Giles JA said with respect to the question posed at 118 [47]:

“The judge found that each of the matters relied on for lawful interests had been established on the balance of probabilities. One was to protect the appellant's credibility generally. The second was to support her credibility if she had to give evidence ‘in a Court proceeding about the matter’. The third was to protect herself against exposure to ‘being charged with making false allegations against other people about matters of considerable seriousness’. It had then to be asked whether recording the conversations was reasonably necessary for the protection of the interests. Different minds could give different answers in the application of reasonable necessity. I am quite unable to conclude, however, that only an affirmative answer was possible. Protection of credibility generally or in the event of giving evidence plainly did not dictate an affirmative answer. Concern to have a supporting record before making allegations is of more significance, but in my opinion it was open to the judge to regard it as insufficient.”

100 Adams J at 124-126 concluded that it was open to find, in the circumstances of that case, that the statutory exclusion in s.5(3)(b)(i) applied. His Honour observed:

(a) Ms Le had a legal right to attempt to engage Mr Ranse in conversation (at 124 [83]);

(b) the likelihood that Mr Ranse would deny the conversation was obvious (at 125 [83]);

(c) Ms Le necessarily had a lawful interest in protecting herself from the risk of the accusation that she had fabricated the conversation (at 125 [83]);

(d) the avoidance of being labelled a liar is an important lawful interest, especially in the context of a criminal investigation, and it is clear that recording the conversation was the only practicable mode of preventing or refuting such an allegation (at 125 [83]);

(e) it is obvious that a participant to a conversation has a legal right to repeat it to another person, with or without the permission of the other participant - the recording of the conversation simply provides evidence which makes it difficult, if not impossible, for the other participant to deny the truth of the person’s account (at 125 [84]);

(f) it is not the case that the mere intention of making an irrefutable record of a conversation to which one is a party will, without more, satisfy the section - the circumstances in which the recording occurs will always be relevant to the determination of whether there is a reasonable necessity for doing so (at 125 [84]);

101 Hulme J said at 124 [79]:

“So far as question 3 is concerned, I agree with Adams J that this question should be answered, ‘Yes’. I agree also with his Honour's reasons insofar as they relate to the particular circumstances in which the appellant found or placed herself in this case. It is unnecessary to go further and I have grave doubts whether as a general proposition, the recording of a conversation by a party to it in order to ensure there is an irrefutable record of it could be regarded as protected by s 5(3)(b)(i).”

Consideration of Submissions Concerning First Ground

102 It is appropriate to bear in mind that the Appellant’s first ground, with respect to both trials, contends that the learned trial Judge erred in law in admitting evidence of a clandestinely recorded conversation. This ground involves two steps:

(a) that the recording of the conversation breached s.5(1) LD Act and that the recording did not fall within any statutory exemption within s.5(2) or (3) and, in particular, s.5(3)(b)(i) LD Act as found by the trial Judge;

(b) that, if the above submission is correct, the recording was unlawfully obtained and ought not be admitted under s.138 Evidence Act 1995.

103 At both trials, his Honour Judge Woods QC held that the recording fell within the statutory exemption in s.5(3)(b)(i) LD Act and, accordingly, was not unlawful. It was not necessary for his Honour to determine the argument that the recording should be admitted under s.138 in the event that he found that it had been made in contravention of s.5(1) LD Act. To succeed on the first ground with respect to both trials, it will be necessary for the Appellant to demonstrate, as the ground states, that it was erroneous to admit the recording into evidence.

Construing the LD Act

104 To resolve the first ground of appeal, it is necessary to construe s.5(3)(b)(i) LD Act.

105 In Miller v TCN Channel Nine (1988) 36 A Crim R 92 at 94, Finlay J observed that the LD Act was introduced to establish safeguards against an unjustified invasion of privacy that could be occasioned by the use of electronic surveillance. The mischief which the Act addresses is the protection of privacy: Violi at 522 [21]; Lawrence v NSW Police Service (2004) 144 A Crim R 396 at 403 [45].

106 The issue of construction should be approached in accordance with the principles in Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355, where McHugh, Gummow, Kirby and Hayne JJ said at 384 [78]:

“However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction [for example, the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities:

Coco v The Queen

(1994) 179 CLR 427 at 437] may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

107 Interference with privacy is relevant when construing a statute which, in some circumstances, permits such interference: Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 at 299.

108 It is necessary to bear in mind that the LD Act creates an elaborate structure whereby application may be made to a Judge of the Supreme Court for the issue of a warrant under Part 4 of the Act. The issue of a warrant by a Judge under s.16 LD Act involves the exercise of administrative and not judicial power: Love v Attorney General for NSW (1990) 169 CLR 307 at 321. A warrant under the LD Act authorises an invasion of privacy of the persons whose conversations are to be recorded and, in some cases, authorises trespass upon their property or the property of others: Commissioner of Police v Barbaro (2001) 51 NSWLR 419 at 422 [17].

109 Unlike a search warrant, a warrant under the LD Act will be directed to law enforcement officers who will act upon it in conditions of secrecy: Commissioner of Police v Barbaro at 422 [17]. For this reason, s.17 LD Act requires the service of a notice upon the Attorney General that application is to be made for a s.16 warrant before such application is made. Because the nature of the activities authorised by a warrant precludes notice to the individual whose privacy will be affected by action taken under the warrant, the Act selects the Attorney General, as a member of the executive government, as the person to be served and to be afforded an opportunity to be heard in relation to the granting of the warrant: s.17(2) LD Act; Love v Attorney General for NSW at 320-321.

110 Section 16 provides for the matters to be established before a warrant may be issued. Section 5(1) does not apply to the use of a listening device pursuant to a warrant granted under Part 4: s.5(2)(a) LD Act. This is the principle statutory exemption to the prohibition upon the recording of private conversations contained in s.5(1) of the Act.

111 The construction of s.5(3)(b)(i) LD Act should be considered in the statutory context whereby application may be made to a Judge of the Court by (usually) a representative of the NSW Police for a warrant under s.16 of the Act after notice has been given to the Attorney General and where, if a warrant issues, a report must be provided under s.19 LD Act to the issuing Judge and to the Attorney General with specified information concerning the use which was made of a listening device under the warrant. These statutory steps emphasise the manner to which the LD Act provides an integrated scheme for controlling infringements of privacy: R v Haddad and Treglia (2000) 116 A Crim R 312 at 327 [75].

112 From time to time, warrants are sought and issued under the LD Act to permit the recording of a conversation between the alleged victim and alleged offender with respect to sexual assault offences which are said to have been committed years before the proposed recording, the scenario which arises in the present appeal.

The Breadth of s.5(3)(b)(i) LD Act

113 In choosing the terms included in s.5(3)(b)(i) LD Act, the legislature has not been prescriptive in confining the statutory exemption to specified classes. The words used in the subsection are capable of being applied to a range of situations with differing outcomes. In Violi, Branson J observed at 521 [14] that “the intended ambit of the conduct intended to be excluded by section 5(3)(b)(i) from the operation of section 5(3)(b) is not readily identified”. In Scanruby Pty Ltd v Caltex Petroleum Pty Ltd [2000] NSWIRComm 89, Peterson J referred to a number of the authorities and noted, at [40], that “those observations illustrate the potential breadth of the phrase ‘lawful interests’ in the exclusion from the prohibition on relevant use of a listening device”. In R v Le, Giles JA at 118 [47] observed that “different minds could give different answers in the application of reasonable necessity”.

114 However, it is necessary to view the broad words in s.5(3)(b)(i) LD Act, against the background of the statute generally. The LD Act commences with a prohibition upon the use of a listening device to record or listen to a private conversation, whether by a party to that conversation or otherwise: s.5(1). The primary exception to this statutory prohibition involves the use of a listening device pursuant to a warrant under Part 4 of the LD Act, or pursuant to an authority under a law of the Commonwealth or another circumstance specified in s.5(2) of the Act.

115 A further layer of statutory exceptions are to be found in s.5(3), with this class applicable only where a principal party to the conversation consents to the recording. It is necessary to bear in mind that s.5(3)(b)(i) constitutes an exception to the general statutory prohibition on use of a listening device, where the primary exception permits recording of conversations under warrant. There is a strong argument that the words of s.5(3)(b)(i) ought be closely confined to avoid undermining the primary purpose of the LD Act. An undue willingness to include a multitude of differing circumstances within this statutory exception may serve to encourage persons to make a covert recording of a conversation rather than (in the present context), comply with the primary object of the Act by bringing the matter to the attention of relevant law enforcement authorities so that application may be made for a warrant to lawfully record a conversation.

“ Reasonably Necessary ”

116 The term “reasonably necessary” appears in s.5(3)(b)(i) LD Act. The word “necessary” is capable of a wide range of meanings. Dictionaries indicate that such meanings include “indispensable”, “requisite”, “needed”, “convenient”, “appropriate” and “essential”. The term “essential” is the strongest or the highest meaning to be attributed to “necessary”: Elcham v Commissioner of Police [2001] NSWSC 614 at paragraph 48.

117 In this Court, Mr Molomby SC accepted (T7.36, 18 May 2006) as the proper construction of this term that “necessary” in s.5(3)(b)(i) means appropriate, but not essential: State Drug Crime Commission v Chapman (1988) 12 NSWLR 447 at 452; Pelechowski v Registrar of Court of Appeal (NSW) (1999) 198 CLR 435 at 452. On this basis, it is sufficient that the recording of a conversation is reasonably appropriate (rather than essential) for the protection of the lawful interests of the principal party.

118 The presence of the word “reasonably” qualifying the word “necessary” imports an objective test. Reasonable necessity is to be judged objectively upon bases or grounds that exist at the time of the recording: Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 465 at [17]-[18], [23]; Amalgamated Television Services Pty Limited v Marsden at [20]-[22]; Violi at 586 [23].

“

Protection

”

119 I have referred earlier to the Appellant’s submissions concerning the significance of the word “protection” in s.5(3)(b)(i) LD Act.

120 According to the Macquarie Dictionary, the meaning of the noun “protection” includes “preservation from injury or harm”. The Oxford English Dictionary definition includes “shelter, defence, or preservation from harm, danger, or evil”. In Udino v Aldo (1998) 16 NSWCCR 418, her Honour Judge Truss accepted this meaning of the word “protection” in the section in concluding (at [19]) that “the applicant’s lawful interests were in need of ‘defence from harm, danger and evil’ at the time when the recording was made and that the use of the device was reasonably necessary for the protection of his lawful interests”. This meaning seems apt given the statutory context in which the word appears.

“ Lawful Interests” of that Principal Party

121 The word “lawful” can mean, simply, permitted, that is something which can be done without an infraction of the law (for example, a lawful trade), or it may mean something which is supported by the law (for example, lawful authority) or it may connote the quality of being legally enforceable (for example, a lawful demand which can be enforced by action): Taikato v The Queen (1996) 186 CLR 454 at 488.

122 According to the Macquarie Dictionary, the meaning of the word “interest” includes:

“…

5. A business, cause, or the like, in which a number of persons are interested.

6. A share in the ownership of property, in a commercial or financial undertaking, or the like.

d. delay will have caused the destruction or loss of relevant documents such as contract documents, or documents relating to access to buildings;

e. the possibility of distortion in human recollection. In particular, it would be difficult after several decades for the witnesses and the accused to remember dates, times, places and events;

f. the nature of the allegations. Most sexual contact is private, in the absence of witnesses. This makes the securing of other evidence vital, and the accused must have had difficulties in this regard;

g. the age of the complainant witnesses at the time of the allegations may increase the possibility of unreliability or inaccuracy in their evidence;

By reason of these difficulties and other similar difficulties which might occur to you, great caution is required in the way you approach the prosecution evidence. You have a duty to consider carefully the matters to which I have referred you and the warnings which I have given you. Having done so, it is then a matter for you to determine what weight you should give to the complainant witnesses' evidence in this case, and you should only accept it if you are satisfied of its truth and accuracy.”

155 The written directions to the jury included the following directions concerning the need to scrutinise the evidence of Crown witnesses with care (MFI25, page 12):

“

Scrutinise Evidence With Care

The evidence of the complainants, BD and JD, relates (on their versions), to events over two decades ago. As I have already said, I direct you that the long lapse of time makes it necessary that you should scrutinise the evidence of each of the complainants with great caution before you would accept it and act upon it. The long lapse of time involved may have distorted recollections or otherwise created unreliability in testimony. But this is not to tell you that you must or should reject the evidence of JD and/or BD. You may conclude that all of it (or the important parts of it) are consistent with other independent evidence, and that it is honest and reliable. You are the judges of the facts.”

156 The learned trial Judge distributed copies of MFI25 to the jury at the commencement of his summing up on 24 June 2004. His Honour gave the jury detailed oral directions concerning lack of evidence of complaint and delay in the making of the allegations (SU, pages 11-15):

“I turn to the subject of lack of evidence of complaint and delay of allegations. I have already mentioned in relation to count 1, which applies to all the counts, the problems that arise for the accused in dealing with the wide expanse of time charged in each count. The accused has argued that the absence of any complaint made by [BD] and [JD] to anyone to whom they might reasonably be expected to complain is inconsistent with the conduct of a truthful person who has been sexually assaulted. The accused says that you should therefore regard their evidence that they were sexually assaulted as false, particularly bearing in mind that the delay before the matter has been brought to the notice of the authorities is about two decades and more in some instances.

This is a matter which you should consider but I must warn you that the mere absence of a complaint does not necessarily indicate that the evidence of a complainant is false. It may indicate fabrication on the part of [BD] or [JD] but it does not necessarily do so. There may be good reasons why a person who has been sexually assaulted does not complain to anyone. For example, a male person who has consented to homosexual contact as a child or young person may be ashamed or embarrassed to have it brought to public notice.

On the other hand, however, it is important that I give you certain warnings which reflect the long experience of the Courts in cases such as this.

[His Honour here gave directions in terms of paragraphs (a) to (g) of the written directions set out in paragraph 154 above].

Now I digress on that point. On the Crown case, at the time that [JD] and [BD] are talking about they were, on their version of events, very young, ten, eleven, twelve, thirteen, fourteen. And you may be concerned that there could be difficulties for them as young people in remembering events at that time.

On the other hand, of course, the way this case has been conducted by the accused, the defence proposition is that none of the sexual contact occurred when the complainants were children. Accordingly, if they were, if you think it a reasonable possibility that they were eighteen, nineteen, twenty when sexual contact was occurring, that consideration would not be so relevant.

In any event, if you think it is a reasonable possibility that the sexual contact was confined to the post eighteen time, then, of course, the accused must be acquitted in any event. I have mentioned those difficulties and it may be that there are other difficulties that occur to you and you should bear those matters of caution in mind in approaching the prosecution evidence.

You have a duty to consider carefully the cautionary matters to which I have referred and the warnings which I have given you. Having done that, it is then a matter for you to determine what weight you should give to the complainant witness’s evidence in this case and you should only accept it if you are satisfied of its truth and accuracy deliberated upon in the light of those cautions and concerns which I have mentioned.”

157 Counsel for the Appellant made application at the first trial for a “dangerous to convict” direction on Longman grounds with respect to JD and BD, but the learned trial Judge declined to give such a direction.

Directions to Jury at Second Trial

158 At the second trial, his Honour Judge Woods QC again provided the jury with written directions of law (MFI3) at the commencement of his summing up on 7 December 2004.

159 The written directions to the jury contained the following Longman directions (MFI3, pages 4-5):

“It is most important that you appreciate fully the adverse effects of absence of complaint on the ability of the accused to challenge prosecution evidence or to present evidence in his own case, and possibly (although he has no legal burden of proof) to establish a reasonable doubt about his guilt.

In this regard, I warn you of the following specific difficulties encountered by the accused in challenging the evidence of the prosecution or in presenting evidence in his defence:

a. neither offence is alleged to have occurred on a specific date – for example, the 3rd of March. As a result, this vagueness hampers the accused in obtaining possible evidence of an alibi;

b. the delay in instituting the prosecution - over two decades - means that the accused would very likely have difficulties in securing evidence such as school records, driver's licence records and other evidence as to relevant dates, possibly allowing an alibi to the accused;

c. delay would provide a particular difficulty for the accused, after several decades, to obtain evidence about the buildings where offences are alleged to have occurred, such as (for example) whether there was a door on a toilet block or the possible presence of security cameras or other witnesses;

d. the possibility of distortion in human recollection. The longer the period between an `event' and its recall, the greater the margin for error. Interference with a person's ability to `remember' may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. The experience of the courts has shown that human recollection is frequently erroneous and liable to distortion by reason of various factors and further, that the likelihood of error increases with delay;

e. the nature of the allegations. Most sexual contact is private, in the absence of witnesses. This makes the securing of other evidence vital, and the accused must have had difficulties in this regard;

f. the age of the prosecution witnesses at the time of the allegations may increase the possibility of unreliability or inaccuracy in their evidence;

I warn you that these are real difficulties which would be likely to affect the capacity of the accused to test the allegations. By reason of these difficulties and other similar difficulties which might occur to you, great caution is required in the way you approach the prosecution evidence.

You have a duty to consider carefully the matters to which I have referred you and the warnings which I have given you. Having done so, it is then a matter for you to determine what weight you should give to the prosecution’s evidence in this case, and you should only accept it if you are satisfied of its truth and accuracy.”

160 The written directions to the jury at the second trial included the following directions (MFI3, page 6):

“ Scrutinise Evidence With Care

The evidence of the complainant,

, and of his brothers, relates (on their versions), to events over two decades ago. As I have already said, I direct you that the long lapse of time makes it necessary that you should scrutinise the evidence of these witnesses with great caution before you would accept it and act upon it. The long lapse of time involved may have distorted recollections or otherwise created unreliability in testimony. But this is not to tell you that you must or should reject the evidence of these witnesses. You may conclude that all of it (or the important parts of it) are consistent with other independent evidence, and that it is honest and reliable. You are the judges of the facts.”

161 His Honour gave the jury the following oral directions concerning delay (SU, pages 9-11):

“Let me turn to the question of the delay in the bringing forward of these allegations. The accused has argued, through his counsel, that the absence of any complaint made by

to anyone to whom he might reasonably been expected to complain, is inconsistent with the conduct of a truthful person who has been sexually assaulted. The accused says that you should therefore regard the evidence that he was sexually assaulted as false, particularly bearing in mind that the delay before the matter has been brought to the authorities is over two decades. That is a point which you must consider, but I must warn you that the mere absence of a complaint does not necessarily indicate that the evidence of a complainant is false. It may indicate fabrication on the part of

, but it does not necessarily do so. There may be good reasons why a person who has been sexually assaulted does not complain to anyone, for example, a male person who has consented to homosexual contact as a child or young person, may when young be ashamed, or embarrassed to have it brought to public notice.

On the other hand however, it is important that I give you certain warnings which reflect the long experience of the courts in cases of such as this.

[His Honour here gave directions in terms of paragraphs (a) to (f) of the written directions set out at paragraph 159 above].

I warn you these are real difficulties which would be likely to effect the capacity of the accused in this trial to test the allegations.

By reason of these difficulties and other similar difficulties which might occur to you, great caution is required in the way you approach the Prosecution evidence. You have a duty to consider carefully the matters to which I have referred and the warnings which I have given you. Having done so, it is then a matter for you to determine what weight you should give to the Prosecution's evidence in this case, and you should only accept it if you are satisfied of its truth and accuracy.”

162 Shortly after giving this direction to the jury, counsel for the Appellant made the following application in the absence of the jury (SU12):

“VASIC: Has your Honour declined to warn the jury that it would be dangerous to convict in these circumstances?

HIS HONOUR: Yes. The form of words which I utilised is consistent with the authorities and in the circumstances of this case, particularly given the other extensive directions I have given, are adequate to convey the real necessity for the jury to be cautious.”

Submissions on Appeal Concerning the Second Ground

163 Mr Molomby SC submits that the directions given to the juries in both trials were defective given the refusal of the trial Judge to give a “dangerous to convict” direction arising from Longman. In each trial, counsel for the Appellant sought such a direction, but his Honour declined to give it.

164 His Honour did give the jury at the first trial a “dangerous to convict” direction concerning the evidence of JD, but not on a Longman basis. This discrete direction was given to the jury in a separate part of the summing up, well removed from the Longman directions. Included in the written directions given by the trial Judge at the first trial were the following directions concerning JD (MFI25, page 13):

“There are sound reasons why you should be particularly cautious about the evidence of

There are various offences of dishonesty on his record. One theft is recorded against him in circumstances which he explains as being a theft by him of money offered to him by a ‘gay guy’ for sex.

He has been convicted of offences of violence and he has spent time in institutions for juvenile offenders.

I direct that it would be dangerous to convict the accused on the evidence of

[JD]

alone

However, this is not to say that you must or should reject the evidence of

You are entitled to accept it, if you have scrutinised it carefully.

You may be assisted in this scrutiny by looking for other evidence, independent of

which may be consistent with his evidence.

If you conclude that there is such other evidence, that it is reliable, and that it confirms or is consistent with what

says, that may assist you in the task in evaluating his evidence.

I repeat, however, that:

(i) it would be dangerous to convict the accused on any charge based on the evidence of [JD] alone; and

(ii) this does not mean that you must or should reject his evidence.

I remind you again that you are entitled to accept (or reject) the whole (or part) the evidence of any witness.”

165 It is apparent on the face of the direction that the learned trial Judge gave this direction concerning JD by way of s.165 Evidence Act 1995 having regard to particular aspects of JD’s background. The “dangerous to convict” component of this direction was not given on a Longman basis, arising from the delay between the alleged offences and the time when the Appellant became aware of the allegations.

166 Mr Molomby SC submitted that, as a matter of law, it was necessary for the trial Judge to give the juries at both trials a “dangerous to convict” direction, given the passage of time between the alleged offences and the trial. He referred to the judgments of Sully J and Hulme J in R v WSP [2005] NSWCCA 427 at paragraphs 93 and 181.

167 He submits that a striking feature of the present case is that the trial Judge himself, at the first trial, acknowledged a significant difference between a warning including the concept of “dangerous to convict” and one that does not, because he gave such a warning in relation to the evidence of JD, but declined to do so in relation to BD. Mr Molomby SC submits that a jury paying conscientious attention to the directions could not have missed noticing the difference. In short, Mr Molomby SC submitted that an element which the High Court in Longman saw as necessary was specifically omitted from the warning given in relation to the complainant BD.

168 With respect to the second trial, Mr Molomby SC submitted that a very similar direction was given (SU9-11). Once again, a “dangerous to convict” direction was not given, although it had been specifically sought by defence counsel (MFI2; SU12).

169 The Crown emphasised that no complaint was made by the Appellant on appeal that the jury at each trial had not been properly directed regarding other aspects of the Longman warning, apart from the “dangerous to convict” formula. The Crown submitted that the trial Judge had given the juries at both trials extensive Longman directions in the written and oral directions set out in paragraphs 154-156 and 159-161 of this judgment.

170 The Crown referred to R v Johnston (1998) 45 NSWLR 362, where the Chief Justice, at 371, stated that a Longman warning needed to emphasise that the effect of delay meant that a complainant’s evidence could not be adequately tested and that because of this, it was necessary to scrutinise the evidence with great care. The Crown submitted that such directions had been given at both of the Appellant’s trials.

171 The Crown submitted that the trial Judge used the forceful expression, with respect to the evidence of JD and BD, “You should only accept it if you are satisfied of its truth and accuracy” (SU15).

172 According to the Crown, a “dangerous to convict” direction is not an indispensable part of a Longman direction. Reliance was placed upon the statements of the Chief Justice in R v WSP at paragraph 13 and R v JJB [2006] NSWCCA 126, the decision in R v DBG (2002) 133 A Crim R 227 at 233-235 and a line of authority in Western Australia exemplified by RAK v Western Australia [2006] WASCA 6 at paragraph 9.

173 With respect to the second trial, the Crown emphasised again that the only area of complaint was the failure to give a “dangerous to convict” direction. No other complaint was made by the Appellant with respect to the substance and detail of the directions given in accordance with Longman.

174 The Crown pointed to the fact that, in any event, the evidence of ID did not stand alone in the second trial. In relation to the Maroubra incident, support for ID was to be found in the following circumstances:

(a) uncontested evidence that the Appellant, aged in his early 30s, took ID and other young boys to the Maroubra beach as alleged;

(b) evidence from BD that RM spoke to ID, and at one stage, the two of them, and the Appellant, were heading for the toilet;

175 In relation to the Stanmore incident, the Crown submitted that support for ID was to be found in the following circumstances:

(a) evidence from JD that he and ID went together to the Appellant’s unit around the time alleged and the Appellant had said to them “my brother mustn’t find out” ;

176 In these circumstances, the Crown submitted, in any event, that no unfairness could flow from a failure to tell the jury that it would be dangerous to convict on the evidence of ID alone, when ID’s evidence was not alone.

Resolution of Competing Submissions on the

“Dangerous to Convict”

Ground

177 There is no doubt that there was a substantial delay, in the order of 20 to 25 years, between the time of the alleged offences and the time of the Appellant’s arrest in 2000 and his trials in 2004. There was no controversy that, at both trials, a Longman direction was required. The issue in the present appeal concerns the extent of the Longman directions actually given. Extensive directions were given, in each trial, to this end. The sole complaint relates to the refusal of the trial Judge to use the “dangerous to convict” formula in his directions to the jury.

178 The High Court in Longman required that a warning, in substance, be given in an appropriate case but did not devise a mandatory formula for that direction: New Zealand v Moloney [2006] FCAFC 143 at paragraph 215. Longman does not require that a “dangerous to convict” direction be given in every case of substantial delay between the alleged offence and the accused learning of the allegations against him: R v DBG at 233-234 [28]. As Simpson J observed in DRE v R [2006] NSWCCA 280 at paragraphs 59-60:

“Although many may have made the attempt, no definitive statement of the minimum requirements of a Longman direction has yet emerged. In particular, there is no unanimity, and no definitive decision, on whether the principle mandates the use of the formula ‘dangerous to convict’ and whether ‘unsafe to convict’ is its equivalent.

In my opinion this appeal ought to be approached on the basis that a

Longman

Crampton

direction should be tailored to the factual circumstances of the case in which the question arises. Whether any direction concerning the effects of delay on the capacity of the accused to defend himself or herself is adequate will depend upon the infinite variety of circumstances that go to make up the facts of a criminal trial.”

179 In Wade v R [2006] NSWCCA 295, Barr J (Hunt AJA and myself agreeing) said at paragraphs 23-25 with respect to a Longman direction:

“23 Secondly, it may be said that no particular form of words is needed when directing the jury: R v Kesisyan [2003] NSWCCA 259.

24 Thirdly, it is not necessary, in fact undesirable, to use the words ‘dangerous to convict’ or ‘unsafe to convict’ when giving a Longman warning. These expressions bear similar meanings: Doggett v The Queen (2001) 208 CLR 343 per Gleeson CJ at [10]; see also the judgment of Spigelman CJ in R v Robinson [2006] NSWCCA 192 and of Sully J in R v BWT .
25 What is necessary is that the trial judge should add the weight of judicial opinion that the relevant disadvantages do exist and why they exist.”

180 As a matter of law, it is not essential that the “dangerous to convict” formula be used as part of a Longman direction. Whether a “dangerous to convict” direction ought be given depends upon the circumstances of the particular case.

181 It has been observed that the use of the “dangerous to convict” formula may intrude into the fact-finding process that is the province of the jury and may be understood by a jury as, in effect, a direction by the Judge to acquit the accused: Robinson v R (2006) 162 A Crim R 88 at 94-95; DRE v R at paragraph 27. In a recent paper, the Hon James Wood AO QC observed that one of the problems with the Longman direction is that the use of the expression “dangerous (or unsafe) to convict” carries an inherent invitation to acquit (“Jury Directions”, AIJA Appeal Judges Conference, Adelaide, September 2006, page 4).

182 In Wade v R, Hunt AJA (myself agreeing), at paragraphs 2-3, explained the requirement that a Longman warning should have the weight and authority of the Court:

“2 One particular complaint made by the appellant is that the trial judge failed in his directions concerning delay to use language which conveyed ‘the weight and authority of the court’. It is a complaint which appears to misunderstand what is meant by that phrase, a misunderstanding which has occurred in some other appeals. What it means is no more than that the various warnings which either the legislature or the appellate courts have required trial judges to give in relation to various issues to be determined by the jury must be seen by the jury to be given on the judge’s own behalf, and not merely by way of reference to what counsel may have submitted to the jury. It does not require any particular form of words to demonstrate that the direction is being given by the judge on his or her authority.

3 It is clear that the judge added the weight of his judicial authority to the directions in issue in this appeal, and that the jury would so have understood them.”

183 I have read and reread the directions as a whole given to the jury, both orally and in writing, at both trials with respect to the effect of delay. The Judge placed emphasis upon the practical effect of delay. I am satisfied that the trial Judge, at both trials, adequately brought home to the jury, in the manner required by Longman, the disadvantages suffered by the Appellant by reason of the delay in the bringing of the allegations.

184 In particular, at both trials, the learned trial Judge:

(a) explained to the jury that it was most important to appreciate fully the adverse effects of absence of complaint on the ability of the Appellant to test prosecution evidence or to adduce evidence in his own case;

(b) warned the jury of a series of specific difficulties encountered by the Appellant in testing the evidence of the prosecution or in adducing evidence in the defence case;

(c) directed the jury that, by reason of these difficulties and other similar difficulties which might occur to the jury, great caution was required in the way in which the jury approached the prosecution evidence;

(d) directed the jury that it had a duty to consider carefully the matters to which reference had been made and the warnings given;

(e) directed the jury that, having done so, it was a matter for the jury to determine what weight should be given to the evidence of the complainants and “you should only accept it if you are satisfied of its truth and accuracy” ;

(f) directed the jury that it should “scrutinise the evidence of each of the complainants with great caution before you would accept it and act upon it” ;

“reflect the long experience of the courts in cases such as this”

185 The learned trial Judge provided substantial and detailed directions at both trials in which the substance of a Longman warning was conveyed to the jury with the authority of the Court. In the circumstances of the present case, I am satisfied that a “dangerous to convict” direction was not required in either the first or second trial.

186 The fact that a “dangerous to convict” direction was given with respect to JD at the first trial (for an entirely different purpose) does not, in my opinion, affect the position. The reason for this direction would have been obvious to the jury. As the trial Judge made clear in both the written and oral directions, there were features affecting JD, including his criminal history, which called for additional circumspection with respect to his evidence. These features did not apply with respect to BD. This is not a case where a “dangerous to convict” direction was given on a Longman basis, with respect to JD but not BD.

187 I am not satisfied that error has been demonstrated with respect to the directions given at the first trial. A “dangerous to convict” direction was not required as a matter of law. In the circumstances of the case, it was not necessary for the trial Judge to give a “dangerous to convict” direction with respect to the evidence of BD. Substantial and elaborate Longman directions were given to the jury with respect to the evidence of JD and BD.

188 Likewise, I am not satisfied that error has been demonstrated with respect to the directions at the second trial. A “dangerous to convict” direction was not required as a matter of law. In the circumstances of the case, it was not necessary for the trial Judge to give a “dangerous to convict” direction with respect to the evidence of ID. His Honour gave substantial and elaborate directions concerning the effect of delay upon the jury’s fact-finding process in accordance with Longman.

189 The second ground of appeal against conviction ought be rejected with respect to both the first and second trials.

Conclusion

190 No ground of appeal has been made out with respect to the Appellant’s conviction at the first or second trials. No challenge is now made to the sentences imposed upon the Appellant.

191 I propose the following orders:

(a) time to file a Notice of Appeal with respect to the second trial is extended to 16 May 2006;

(b) the appeals against conviction at the first and second trials are dismissed.

**********

CITATION:	Sepulveda v R [2006] NSWCCA 379
HEARING DATE(S):	19 May 2006
JUDGMENT DATE:	29 November 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Hislop J at 2; Johnson J at 3
DECISION:	1. Time to file a Notice of Appeal with respect to the second trial extended to 16 May 2006; 2. The appeals against conviction at the first and second trials are dismissed
CATCHWORDS:	CRIMINAL LAW - appeals against conviction at two trials - offences of indecent assault and buggery committed against three minors between 1978 and 1984 - complainant covertly recorded conversation in 1999 with Appellant containing admissions - no warrant under Listening Devices Act 1984 authorising recording - whether recording was "reasonably necessary for the protection of the lawful interests" of complainant who recorded conversation - construction of s.5(3)(b)(i) Listening Devices Act 1984 - trial judge erred in holding that requirements of s.5(3)(b)(i) were satisfied - recording admissible under s.138 Evidence Act 1995 - whether trial judge erred by declining to use the "dangerous to convict" formula as part of the direction under Longman v The Queen (1990) 168 CLR 79 - no error established
LEGISLATION CITED:	Crimes Act 1900 Listening Devices Act 1984 Evidence Act 1995 Criminal Appeal Act 1912
CASES CITED:	Douar v The Queen (2005) 159 A Crim R 154 Longman v The Queen (1990) 168 CLR 79 R v Le (2004) 60 NSWLR 108 Violi v Berrivale Orchards Limited (2000) 99 FCR 580 Amalgamated Television Services Pty Limited v Marsden [2000] NSWCA 167 R v Eade (2001) 118 A Crim R 449 Miller v TCN Channel Nine (1988) 36 A Crim R 92 Lawrence v NSW Police Service (2004) 144 A Crim R 396 Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355 Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 Love v Attorney General for NSW (1990) 169 CLR 307 Commissioner of Police v Barbaro (2001) 51 NSWLR 419 R v Haddad and Treglia (2000) 116 A Crim R 312 Scanruby Pty Ltd v Caltex Petroleum Pty Ltd [2000] NSWIRComm 89 Elcham v Commissioner of Police [2001] NSWSC 614 State Drug Crime Commission v Chapman (1988) 12 NSWLR 447 Pelechowski v Registrar of Court of Appeal (NSW) (1999) 198 CLR 435 Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 465 Udino v Aldo (1998) 16 NSWCCR 418 Taikato v The Queen (1996) 186 CLR 454 T v Medical Board of South Australia (1992) 58 SASR 382 R v Smith and Turner (1994) 63 SASR 123 Public Trustee v Alvaro (Supreme Court of South Australia, Legoe J, 19 July 1995, unreported, BC9502314) See v Hardman [2002] NSWSC 234 House v The King (1936) 55 CLR 499 R v O’Donoghue (1988) 34 A Crim R 397 Kardoulias v R (2005) 159 A Crim R 252 Australian Gas Light Company v Valuer General (1940) 40 SR(NSW) 126 Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 R v WSP [2005] NSWCCA 427 R v Johnston (1998) 45 NSWLR 362 R v JJB [2006] NSWCCA 126 R v DBG (2002) 133 A Crim R 227 RAK v Western Australia [2006] WASCA 6 New Zealand v Moloney [2006] FCAFC 143 DRE v R [2006] NSWCCA 280 Wade v R [2006] NSWCCA 295 Robinson v R (2006) 162 A Crim R 88
PARTIES:	Heriberto Robinson Sepulveda (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2256/2005
COUNSEL:	Mr T Molomby SC (Appellant) Mr D Arnott SC (Respondent)
SOLICITORS:	Maxwell Berghouse & Ives (Appellant) SC Kavanagh, Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/1186
LOWER COURT JUDICIAL OFFICER:	His Honour Judge Woods QC
LOWER COURT DATE OF DECISION:	17 December 2004
LOWER COURT MEDIUM NEUTRAL CITATION:	---