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[2011] NSWDC 220
District Court of NSW
2011-11-30
Mr J, Mr P, Miles CJ, Gray J
Original judgment source is linked above.
Introduction 1PM was arraigned on 29 November 2011, on 2 charges of sexual assault alleged to have occurred on 14 November 2008 at Goonellabah. The accused is alleged to have had sexual intercourse without consent of the complainant and to have indecently assaulted her, whilst he treated her in his capacity as a medical practitioner. 2The Crown seeks to rely upon evidence of conversations between the accused and the complainant at about 10.50 am and at about 12.30 pm on 11 December 2008, when the complainant rang the accused at the request of police, with directions as to what she was to discuss and how she was to discuss those matters. These conversations were recorded by virtue of a lawful warrant issued pursuant to the Surveillance Devices Act 2007. Senior Counsel for the accused objected to the admission into evidence of the recorded conversations. They were Exhibits 2 and 3 on the voir dire in chronological order of their occurrence. 3This is the second trial of these allegations, a jury previously has been discharged without verdict. Thus, evidence from that trial was available in the voir dire. After the conduct of a voir dire examination, which commenced after the empanelment of the jury on 28 November, concluding on 29 November prior to the Crown's opening, I excluded the evidence the subject of objection. 4At that time I briefly outlined the bases for the exclusion of the evidence. They included findings concerning whether the conversations contained "admissions" by the accused (s 88 Evidence Act 1995 - "the Act"), discretionary exclusion pursuant to s 90 of the Act and exclusion pursuant to s 137 of the Act.
Authorities cited 5The Court was taken to a number of provisions of the Evidence Act (ss 84, 85, 88, 90, 137) as well as a large number of cases in the course of submissions. Many cases were handed up, but only a few addressed in submission, particularly R v Truang (1996) 86 A Crim R 188 (per Miles CJ - ACT Supreme Court) and R v Lieski [2006] ACTSC 97 (per Gray J), both concerned with s 85 Evidence Act 1995. 6Noting my earlier ruling and the reasons that I expose in this judgment, I propose to refer only to a few decisions of those handed up. Some of those decisions handed up deal with quite different circumstances than those with which I am concerned, or relate to issues about which I was not persuaded in the course of submission. I have particularly paid close attention to those decisions relied upon by the parties concerned with co called "pretext calls". 7A centrally important decision, both in the common law and in consideration of the Evidence Act 1995, is R v Swaffield and R v Pavic (1998) 192 CLR 159. Although a 'non Evidence Act' case, this decision, in particular respects, has been cited subsequently with approval in relation to authorities dealing both with the Evidence Act 1995, and in "non Evidence Act" States. 8A Canadian Supreme Court decision (R v Broyles (1991) 3 SCR 595) was cited with approval in one decision provided to the Court, R v Cavalli [2010] QCA 343 (at [8]), as it was in Swaffield (611). It set out "criteria" for exclusion of 'pretext' telephone, or other, conversations in the following terms: "The first set of factors concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterised as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation. The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?" 9In this particular matter there can be no doubt that the complainant was relevantly "an agent of the State". Reliance is made, as I understand it, by the Crown upon R v M [2002] QCA 456. However in the context of the decision of Cavalli and the New South Wales decision of Pavitt v R [2007] NSWCCA 88, M was very much a different situation than this matter, given the relationship between the parties in that matter. 10In Pavitt , the majority of the Court discussed Swaffield (at [30]-[46]), which discussion, I note, included the observation that in Swaffield "all members of the Court recognised that considerations of voluntariness, reliability and unfairness to the accused and public policy may overlap". Voluntary admissions (to use common law terminology) may still be excluded on other bases [34]. 11The majority in Pavitt discussed Broyles and also considered s 90 Evidence Act 1995, by regard to the judgment of the Court of Criminal Appeal in Em v Regina [2006] NSWCCA 336, particularly [54], [55], [58], [68], [73]. 12In Em , Justice Giles noted: "[54] A decision whether or not to refuse to admit evidence of an admission pursuant to s 90 of the Act is a discretionary decision. The language of s 90 calls for an evaluation of whether or not having regard to the circumstances in which the admission was made it would be unfair to the accused to use the evidence, and then a decision whether or not to refuse to admit the evidence of the admission. The process of evaluation is closely analogous with the exercise of a discretion (see Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653 at [35]), and s 90 is closely akin to the common law unfairness discretion considered in R v Swaffield . The evaluation and the decision in combination confer a discretion. Section 90 has been so viewed in, for example, DPP v Attallah [2001] NSWCA 171 at [19], R v Lyberopoulos [2002] NSWCCA 280 at [42] and the decision on the interlocutory appeal." "[58] ..... Fairness or unfairness is multi-faceted, and if it involves the accused's belief that what he says to the police can not be used against him it extends to whether or not that belief was engendered by what the police said or did and, if it was so engendered in whole or in part, whether the police intentionally brought that about. That is so, amongst other reasons, because the propriety or impropriety of the police conduct is material to fairness or unfairness, see McDermott v R (1948) 76 CLR 501 at 512-3; R v Lee (1950) 82 CLR 133 at 150-1; The Queen v Swaffield at [14]-[18], [26]-[28], [71]-[78]. In R v Swaffield the reasons of Toohey, Gaudron and Gummow JJ included at [74] that voluntariness, reliability, unfairness to the accused and public policy considerations can not always be treated as discrete issues. Intention to create circumstances of unfairness in use of evidence is not necessary, but presence or absence of intention is not irrelevant." 13In Pavitt their Honours (the majority) concluded at [70]: "In our view, without being exhaustive, the following propositions relevant to the present case can be extracted from the authorities to which we have referred concerning the admissibility of covertly recorded conversations: (a) The underlying consideration in the admissibility of covertly recorded conversations is to look at the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned: Swaffield (at [91]) per Toohey, Gaudron and Gummow JJ; (at [155]) per Kirby J. (b) If that freedom is impugned, the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted: Swaffield (at [91]); a conclusion that some or all of the Broyles factors were present did not lead to the admissions being excluded in either Pavic or Carter's cases; (c) Even if there is no unfairness the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards: Swaffield (at [91]). (d) The question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and/or improper include whether the accused had previously indicated that he/she refused to speak to the police; (e) The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required: (i) as a threshold question, was the evidence obtained by an agent of the state? (ii) was the evidence elicited? (f) A person is a state agent if the exchange between the accused and the informer would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents: Broyles (at [30]); (g) Absent eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police: .... (h) Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the state agent for the conduct of the conversation may also be important: Broyles . (i) The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful." 14Gleeson CJ and Heydon J in the High Court decision in Em ((2007) 232 CLR 67), when discussing s 90 Evidence Act , noted: "The language in s 90 is so general that it would not possible in any particular case to mark out the full extent of its meaning. ... In any particular case, the application of s 90 is likely to be highly fact-specific."
Some facts found from the evidence on the voir dire 15On the evidence, I am satisfied that the recorded conversations whilst lawfully obtained were conducted: (i) at the request and direction of the Officer-in-Charge Detective Hogan, (ii) after Detective Hogan had given the complainant instructions as to at least four topics to be addressed in the conversations and at least one instruction on how to conduct the conversation, (iii) with a view to obtaining admissions and/or confessions from the accused in relation to the allegations made by the complainant, (iv) in circumstances where the accused was to be arrested and charged at a subsequent time no matter what he said, (v) and where the Detective believed, at least, that when arrested the accused may exercise his right to silence and knew that he would be advised of his rights to obtain legal advice, and his right to silence, on arrest under the "LEPRA". 16Further, the evidence establishes that the complainant actively in the course of the conversations perpetrated to the accused a number of material representations and/or subterfuges in an endeavour to lure him into making the admissions and/or confessions which were the object of the exercise. 17The two telephone calls occurred at a time when the complainant had arranged an appointment at the doctor's practice, appointments which the complainant had never intended to keep. 18The complainant had been treated by the accused, without any impropriety, from at least August 2008 until 14 November 2008 for various matters including symptoms of mental illness, such as, anxiety, panic attacks and 'depression'. She was taking substantial quantities of anti-depressant medication. 19In the course of the two conversations that the Crown sought to tender, the accused was, in both conversations, led to believe that the complainant was in a fragile mental state and that the complainant needed him to answer her questions, and respond to allegations she was making to him, for her wellbeing and/or for her to determine whether she should attend for any subsequent appointment and/or to determine whether she should report the matter to the authorities, particularly the police. 20After the evidence had been completed, and during the course of submissions, the Crown properly acknowledged that the bulk of the recordings contained such unfairly prejudicial material that it was not appropriate to press their admission. The Crown indicated that it would rely upon such part of Exhibit 2, the first call occurring after approximately 10.50 am on 11 December 2008, on the basis that the relevant part (reflected at pages 1 - 9 of the transcript of the conversation) contained particular admissions (but not confessions) by the accused. The material not pressed by the Crown maintained some relevance to the issue of admissibility, insofar it reflects methods adopted by the complainant, either at the instigation of the police, or with their encouragement, to persuade, 'trick', influence, or force the accused to make relevant admissions. 21During the second recorded conversation (occurring after 12.30 pm), in fact right to the very end of the conversation, the complainant was still stating, quite accurately in my view, that she had not received from the accused relevant "acknowledgement" of the truth of the allegations she made against the accused. During the course of both conversations she maintained misrepresentations, untruthful assertions, or misleading assertions, endeavouring to force the accused to respond favourably to her propositions. This was in the course over the two recordings making many entreaties to the accused to respond "favourably", to the point of excessive repetition. 22Mr Boulten SC, for the accused, identified a number of objections, pursuant to s 84, 85, 88, 90 Evidence Act 1995, alternatively submitting that the 'unfair prejudice' outweighed the 'probative value' of the admissions identified by the Crown (s 137 of the Act). 23I do not have a transcript now of the submissions made by the parties, but this judgment, and my earlier ruling, require consideration of the specific submissions made by both the Crown and the accused, the concessions made by the Crown, the detail provided by the Crown of the "relevance" of the material pressed and the character of the "admissions" identified by the Crown. Importantly, bearing in mind the unnecessary time it would take to repeat what occurred in submissions, the discussion had between myself and the learned Crown Prosecutor and learned Senior Counsel for the accused concerning features of the tendered material, which militated against a conclusion that a relevant admission as submitted by the Crown had been made need to be considered. For the purposes of this judgment I propose to refer only to two parts of the critical part of the tendered material (between pages 5 - 9 of the transcript, particularly at page 5, 7) as illuminating the issue of whether in fact relevant "admissions" were made.
Admissions 24The "threshold" issue is whether, in fact, the material was "relevant" as "admissions", noting the terms of s 88 of the Act, "For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission." 25It was submitted that the relevant part of the tendered material was capable of being assessed as containing admissions that the accused either: (i) put his hands (fingers) in the complainant's vagina (the "wider admission") or (ii) had conducted an examination of the complainant's ovaries (the "narrow admission"). 26Both matters are of significance to the Crown because of the evidence the accused gave at the first trial, denying conducting any internal examination, and according to the Crown denying any examination of the complainant's "ovaries". Having regard to the submissions made by Mr Boulten and my examination of the evidence I do not believe it could be reasonably concluded that the accused either explicitly or implicitly denied in his evidence a medical "examination" as to whether there were problems with the complainant's "ovaries". The accused may not have made an express concession that he did, but he did request the conduct of a "blood test" to ascertain whether there were issues affecting the complainant's health associated with "menopause" and/or "ovaries". The unguarded comments of the accused to the complainant during the first conversation (at page 7 of the transcript of the conversation) revealed this to be so. 27I have concluded that, pursuant to s 88 of the Act, there is no reasonable evidence of an "admission" being made, in the wider sense. Whilst the Crown referred to a range of answers in that part of the transcript to which I earlier referred, critically its assertion of the existence of an admission of the "wider" type rests upon a passage at page 5 of the transcript of the recording sought to be tendered: 28There it is recorded that the complainant said inter alia: "..... It's like from what I remember, you known um, things are coming back into my head, you know, how you asked me to lie down and you were going to check my ovaries and tummy and that" The accused replied: "That's right. Yep" She then said: "Me and that." To which he replied "Yep". 29As was discussed with the Crown, the response of the accused to the representations made by the complainant firstly needs to be understood in the context of her representations which he appears to "accept" involve several propositions. It is not reasonably clear that he has adopted the representations "conjunctively". This is underlined by the response that he gave at page 7 of the transcript when he at much greater length covered the character of the examination about which the complainant was speaking, implicitly denying any vaginal penetration or internal examination, but admitting an examination that was not inconsistent with the account he gave at the previous trial. There he said: "Look, I examined you. Right. ... I checked your tummy and everything. Everything was perfectly fine and I gave you the blood test to do. You did the blood test, I got the results and I said like, look, it does not look like it is um anything to do with your ovaries and it doesn't look like it is menopausal symptoms because you're not menopausal at the moment. So it basically looks like you've had a very, very severe panic attack on that day." She went on to say: "Do you remember about your fingers inside my vagina ... moving them in and out in a sexual way?" to which he replied "I don't think so." 30Later in response to the complainant's representation (at the bottom of page 8 of the transcript) when she said: "I mean don't you remember putting your fingers inside me ... in a sexual way? What about, do you remember telling me I had too much hair?" The accused said: "I don't think so are you don't panic (sic). You are making a big deal out of it, why don't you come and sit and have a chat to me?" 31Later, on the same page of the transcript she asked him if he remembered putting her hand on his penis. He said: "No. Why don't you just come over and have a talk about it. What, what is so concerning you?" 32The critical "short answer" at p5 earlier quoted, given by the accused, is more clearly, or reasonably, understood by the expanded account and denials, given later in the same conversation that I have quoted. 33The expert evidence called at the first trial, which could be expected at the second trial, does not in my view effect the conclusion I have reached that the narrower admission was not made, nor reasonably could be so construed, from the accused's responses in the context of the questions asked by the complainant and other answers in explanation given by the accused. 34Even if the material was relevantly "an admission" of either type, on the basis advanced by the Crown, it would have to be in due course subject to a number of warnings to ensure that the jury had a proper opportunity to construe, or determine, the effect of the accused's responses. At best they are "equivocal". 35As to the narrower admission, again in context, having regard to other available evidence, it is not reasonable to conclude that what he has said in response to the complainant's questions relevantly constitutes "an admission" of the character that the Crown has identified. Importantly, in context, it is not capable of supporting the account the complainant gave in a manner that contradicts the account given by the accused in his trial.
Ss 84, 85 Evidence Act 1995 "s 84(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by: (a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or (b) a threat of conduct of that kind. (2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced." "s 85(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or (b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. (2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account: (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and (b) if the admission was made in response to questioning: (i) the nature of the questions and the manner in which they were put, and (ii) the nature of any threat, promise or other inducement made to the person questioned." 36In relation to the objections taken by Mr Boulten SC pursuant to s 84 and s 85, I have concluded that the material need not be excluded pursuant to either one of those sections. I do not propose to dwell upon my reasoning for the conclusion. It must be fairly said that a number of the matters identified by Mr Boulten in his submissions in relation to s 85, are relevant (additionally) to matters pertinent to the determination of the exercise of the discretion to exclude available under s 90 of the Act, particularly the pressure put on the accused to respond to her entreaties to give her 'peace of mind' for her health problems.
S 90 Evidence Act 1995 37S 90 of the Act provides: "In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. " 38To summarise Senior Counsel's submissions that touch upon s 85 and 90, but to my mind most pertinent to the issues that arise under s 90, the conduct of the complainant up to and including the material the Crown seeks to tender, includess misrepresentations, untruths, repetitious questioning, badgering and/or cross examination, double barrelled questions, and relating the questions to her then claimed current state of health, said to be quite fragile. Senior Counsel referred to eleven such incidents within the first nine pages of the transcript (relating to the first conversation) where the complainant emphasised the relationship of her need to be informed with her health and wellbeing. This is a matter of considerable significance given that the doctor, whatever he may have done to her on 14 November, was legitimately treating her for a significant mental illness. 39As I pointed out earlier, even the material that is not pressed by the Crown has some relevance to the issues I am considering. For example, the accused said to her at later points of the conversation words to the effect, "If I say yes it won't make any difference, if I say no it won't make any difference", to her allegations. He said in the course of the second recorded conversation after repeated entreaties for him to admit what she alleged, "How is that going to help you ... whatever I say". At one point he said, "Look, look M, if you say yes, I will say yes. If you say no, I will say no". When she became frantic in her voice and accused him of saying that she was making things up he said, "No you are not making it up", in a tone of voice that was designed to placate her. Her various entreaties were punctuated by emotional presentation and outbursts, supposedly to reflect her claimed fragile mental state. 40Although the issues that arise in considering s 90 of the Act do not involve a consideration of tests for acceptable questions in Court, the course of questioning between pages 5 - 9, the part principally pressed by the Crown, would in the main not be permitted in Court for some of the reasons mentioned above. 41There are other features of the conversation sought to be tendered, particularly the questioning by the complainant that should be noted. The questioning was not aimed at obtaining exculpatory material. Detective Hogan's evidence makes it clear that the accused would have been charged, whatever he said, whether he denied the allegations. The purpose of the conversation was a "device" to obtain a version from the accused where the Officer-in-Charge knew that if the accused was able to exercise a choice as to whether he spoke at all in response to the questions, in the knowledge that his conversation was being recorded and may be used in evidence against him, he may not give a version at all. 42Noting the decision of the majority in Pavitt , and the related, but less extensive observations in Cavalli , bearing in mind that the complainant was an 'agent of the State', there can be no doubt that the conversations sought to be tendered by the Crown recorded pursuant to lawful warrant (and other conversations initially tendered but no longer pressed) were "elicited", by repetitious, importuning interrogation. Although in Em (NSWCCA) Giles JA noted that; "Ordinarily persons do not make admissions against interest unless they are true", there was nothing "ordinary" about the special circumstances by which the complainant came to speak to the accused, and sought to inveigle him into making "admissions". Here, the interrogator "exploited the special circumstances of the relationship". She was the accused's patient and made it very clear, as was pointed out by Mr Boulten SC in his submissions primarily directed at s 85 of the Act, that the accused answering her questions was vital to her wellbeing. That "wellbeing" related to her mental health. The complainant was clearly, noting all the circumstances in which she came to ring the accused, playing a role by use of deception, "acting" and persistent, repetitious and/or misleading questions and representations. 43The manner of questioning, the use of misrepresentations, the circumstances in which the telephone conversation was set up, the equivocal character of questions and answers, the detail of the questions as to content and form, amongst other matters, leads the Court to the conclusion that it would be unfair to admit the evidence into evidence, pursuant to the terms of s 90 Evidence Act .
S 137 Evidence Act 1995 "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 44Even if it could be reasonably concluded that there is an admission made in the "narrower" sense, in the context of the anticipated medical evidence, an admission that he made an examination of the complainant's "ovaries" is of limited probative value, far less probative value in this case, than an admission of vaginal penetration with the fingers. Unfairly prejudicial, and unable in my view to be cured by warnings, is the character and nature of the interrogation of the accused by the complainant, and the unfair use of the "tactic" of needing answers to quell her health problems. Further, the demeanour of the complainant in the call creates unfair prejudice to the accused that cannot be cured by direction. Thus, if the evidence is available as evidence of an "admission" by the accused, in the narrower sense, and is otherwise admissible and ought not be excluded, it "must" be excluded pursuant to s 137 of the Act, because the danger of "unfair prejudice" is greater than its probative value.
Conclusion 45There is one other matter that requires further comment, although ultimately it is not directly relevant to the issues that ultimately decide this matter. It is my view there are occasions where it is highly undesirable that a complainant be put in a position of confronting an accused in an orchestrated or "pretext" situation in order to lure the accused into making representations against his or her interests. Inevitably, this process will have a number of very undesirable effects and consequences. It may cause unnecessary distress to the complainant. The truthful complainant will be placed in a very difficult position. The untruthful, vexatious complainant will participate with relish. Directed, or not, it places the complainant in the role of an investigator who will always be subject to allegations of lack of dispassion, over zealous prosecution, coached or trained responses and/or alleged to be misrepresenting matters to obtain desired responses. 46This particular matter had practically all of these vices. If a police person's interrogation of a suspect had the various hallmarks of the interrogation that occurred in this matter by the complainant, it and the answers it elicited, would most probably be rejected for a whole raft of reasons. If counsel conducted such an examination it would also be subject to either objection and/or rejection for a range of reasons. These reasons might include, the questioning was too emotional, double barrelled questions were asked, the questioning was repetitious, the questions misrepresented the known facts, the witness/suspect was misled. 47If a complainant treated the same way when investigated or questioned, such conduct would be shameful. With an accused, it not only carries the risk of "unfair prejudice" as discussed in ss 135 and 137 Evidence Act , but it will generally occur in a situation where the accused's right to silence, the right not to incriminate him or herself, to obtain legal advice and other statutory protections reflected in "LEPRA" and the Criminal Procedure Act , would be not made known to him or her. Official questioning could not take place in these circumstances. Neither should questioning by an "agent" for official investigators, questioning the suspect with their approval and their direction.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 March 2012
DPP
PM
[2002] QCA 456
[2006] ACTSC 97
[2010] QCA 343
(2007) 232 CLR 67
(1998) 192 CLR 159
(2000) 49 NSWLR 653
(1948) 76 CLR 501
(1950) 82 CLR 133