DPP v Serebryanski

1. The offences are alleged to have occurred on a night between 1 June 1986 and 30 June 1988.
2. The complainant, Mr Waks, is now 49 years old and was aged between 10 and 12 years of age at the time of the alleged offending. He was a member of the Orthodox Jewish community and regularly attended the Yeshivah centre and the Russian centre.
3. Mr Waks' family came to know the accused's family from about 1985 to 1986. Both families were part of the Jewish community living in the St Kilda area and were part of an ultra-orthodox Jewish movement known as Chabad.
4. The complainant states that there was a night when he was between 10 and 12 when he attended the Yeshivah Centre for a night study session during Shavuot. Shavuot is an annual celebration of the Jewish religion and is observed over three days in late May or early June each year.
5. The complainant alleges that at approximately 1:00am that night, the accused followed him upstairs inside the Yeshivah centre and sat down beside him on a wooden bench. He alleges that the accused began caressing and rubbing the complainant's thighs until he reached the groin area. The complainant alleges that the accused undid the complainant's belt and trousers and felt around the complainant's penis and groin over the top of his underwear.
6. The accused is alleged to have then led the complainant to the women's bathroom and once inside, he is said to have removed his own underpants and trousers and those of the complainant. He is said to have placed the complainant's hand on his penis before using his own hand to touch and rub the complainant's penis.
7. The complainant alleges that the accused placed his mouth over the complainant's penis and began to suck it.
8. The offending I have just described forms the basis of the charged acts in this trial.

1. On 16 June 2025, I was provided a Notice of Additional Evidence which contained a further statement by the informant. In his statement, the informant identifies a 57-minute Youtube video titled 'Breaking the Silence - Sexual Abuse in the Jewish Community Goes to Court (documentary). The Accused referred me to an extract from approximately 41:00 minutes to 47:30 minutes which depicts the complainant attending outside the accused's home in New York in 2015 ('2015 attempt').
2. The complainant attempts, unsuccessfully, to contact the accused. He knocks on the accused's door and at one point, enters a gated area to peer into the accused's front window. He appears to have caught a glimpse of the accused and asks him to come outside and talk. The clip ends with the complainant leaving a note under the accused's front door.
3. At the end of the thwarted confrontation, the complainant observes:

I have no doubt when he heard my voice today that it was his nightmare and he's gonna have nightmares for a while. That was not my intention. If he does have some nightmares, you know what? Many of us have had triggers and flashbacks to what he did.

4. I was also provided with an extract from the complainant's book titled 'Who gave you permission?', in which he describes the 2015 episode as follows:

[T]he attempt to confront him failed to flush him out in person. As soon as he realised I was outside his door, he bolted to the back of the apartment. I caught a slight glimpse of him. ... I decided to leave a note, asking him to get in touch with me while I was in New York. ... Of course, I never heard from him. After it became clear we weren't going to meet, I thought that if I could also talk to his neighbours and alert them to his background, I might be doing them a service. When I did so, I felt fully vindicated.[1]

5. On the preceding page, the complainant wrote that he knew he might come across as 'some sort of vigilante, a guy who takes the law into [his] own hands, who oversteps the mark in the name of revenge or grandstanding'.[2]

1. On 4 January 2017, Mr Waks sent Mr Serebryanski an email titled 'Your abuse' which read:

Velvel, > > It's been a few years... > > I wanted to enquire if you'd consider acknowledging that you sexually abused me, and apologising for it. I would also want to know how you can assure me (and the community) that you are not currently a danger to children. > > Looking forward to your response. > > Manny (Menachem) Waks > > PS If you're wondering what prompted this email, please see https://www.facebook.com/manny.waks/posts/1279370812105917?pnref=story. > > ‐‐ > > (Mr) Manny Waks > > Website: www.mannywaks.com > > Facebook: https://www.facebook.com/MannyWaksPublic > > Twitter: https://twitter.com/mannywaks > > LinkedIn: au.linkedin.com/in/mannywaks > > My book Who gave you permission? is now available.

2. The link provided by Mr Waks in his email was intended to direct Mr Serebryanski to a post he made on Facebook on 4 January 2017 which reads:

My parents are still in the process of unpacking in their new home here in Israel. In the past few days, they've been unpacking books. I just arrived at their home to be given a book of mine that they found. It has the inscription 'from Velvel [Serebryanski] to Menachem Waks for Bar-Mitzvah'. It's sickening to think that one of the people who sexually abused me as a child (around the ages 11-12yo), including inside a synagogue, was present at my Bar-Mitzvah so soon after he had abused me several times. Not quite sure what to do with the book, his gift to me, but it's certainly an unpleasant sight. And another trigger of the abuse, something so many others with similar experiences often endure.

3. The Facebook post attached two images, one depicting the inscription referred to in Mr Waks' post and the second depicting the title of the book gifted by Mr Serebryanski to Mr Waks, 'Abraham, Son of Abraham' by Louis Ojeda.

1. On 3 February 2017, the complainant attended outside the accused's home in Brooklyn, New York, with an associate, Mr Agassi. Mr Agassi is an Israeli reporter. The interaction between the complainant and the accused was covertly filmed by Mr Agassi. The Accused had asked that the camera be turned off and Mr Agassi feigned compliance, but the camera continued to record the interaction. The accused made several admissions in the conversation which are excerpted in the Prosecution Opening.[3]

(a) Mr Waks said, '...for me it would be meaningful if you acknowledge what you did to me ... I want you to voice it now if you remember what happened', to which Mr Serebryanski replied, '... a lot went on but ... I want to tell you one thing ... One that ...I've been wanting to tell you for a long time ... I, at no point, did I ever want to harm you in any way ... I - I loved you.' He continued, 'I only wanted to do ... what I thought you wanted'.

(b) When Mr Waks pointed out that Mr Serebryanski was in his early twenties at the time, Mr Serebryanski said, 'at that point you were actually more advanced - more mature than I was'. Mr Waks replied that he was 'an 11 year old boy, a 12 year old boy'. Mr Serebryanski told Mr Waks, 'you don't know ... what I was like ... I was less experienced than you ... and certainly less mature in that way than you'.

(c) Mr Serebryanski said to Mr Waks, 'It seems to me that you - I was taking the lead from you.... I was seeing what you wanted and trying to follow along'.

(d) Mr Serebryanski said, 'I tried to do what I thought you wanted and ... if - as it seems now that it had caused you pain, I am extremely sorry for that. I never wanted that. If ... I had known that ... anything I did would cause you pain that was the last thing I wanted'.

(e) Mr Waks then compared Mr Serebryanski to another man who had committed sexual offences against Mr Waks at a later time in his life. Mr Waks told Mr Serebryanski, 'I never regarded you as a bad person ... I did understand the fact that you had that level of immaturity.' Mr Waks said the other man was, in his view, a 'genuine paedophile' and that what he did, and what Mr Serebryanski did, were 'two very different situations'. Mr Serebryanski accepted what Mr Waks was saying was genuine.

(f) Mr Waks said to Mr Serebryanski, 'My point for you isn't to go put you in gaol, that's not my point. For me this is more about trying to understand what actually happened because in my mind it's still that 11, 12-year old kid.' Mr Serebryanski replied, '...as I perceived it at the time, I was completely infatuated with you and I wanted to do what you wanted and wanted to make you happy. And obviously that wasn't the right thing ...obviously that wasn't how to make you happy ... if it's resulted in all this clearly it wasn't the right thing'.

(g) Mr Waks asked Mr Serebryanski about how he perceived what had happened between them. Mr Serebryanski replied: 'The perception of what happened, simply I tried to make you happy. I tried to do what I thought you wanted.' Mr Waks then said, '... you're not denying the fact that ... we had', Mr Serebryanski interrupted, 'Well, I'm not gunna ... go into specifics ... Details... But ... for a long time I wanted to make you happy.' Mr Waks replied, 'I know that and I remember you staring at me all the time in shul and I was so uncomfortable all the time. And I know that you were coming to it from a nice place. That you were just infatuated with me, as you said, but that's how I felt.' Mr Serebryanski said, 'Yep'.

(h) Mr Serebryanski told Mr Waks, '...if I had known that it could possibly cause you any pain, ... I wouldn't have'.

(i) Towards the end of their conversation, Mr Serebryanski told Mr Waks, 'I'm very sorry for any pain that I have caused you'.

1. At one stage Mr Wak's asked the accused whether he was sexually active, asked him about his sexuality and asked for an assurance that the accused no longer posed a risk to children. Dr Harkess conceded that these are not relied upon by the prosecution and would be edited from the video played to the jury. Similarly, Dr Harkess conceded that the second sentence of the 4 January 2017 email regarding the danger the accused posed to the community would be edited from the exhibit provided to the jury.

Section 84 of the Evidence Act

1. Mr Hill KC with Ms Thies submitted that the accused's admissions were influenced by oppressive conduct. He submitted that the prosecution was incapable of demonstrating on the balance of probabilities that the admissions made by the accused in February 2017 were not so influenced. He characterised the oppressive conduct as encompassing the 2015 attempted encounter, the January 2017 email and the filmed confrontation in February 2017. He pointed to the following constellation of features from the 2017 encounter:

(a) Mr Serebryanski is a timid man who was startled by the sudden appearance of two men on his doorstep at dusk, noting that both men are larger than Mr Serebryanski and that Mr Waks was dressed in a heavy black jacket with a scarf partially covering his face;

(b) Mr Waks positioned himself between Mr Serebryanski and the gate to his home so that he was unable to retreat inside;

(c) Mr Agassi describes the encounter as an ambush. It occurred at dusk when Mr Serebryanski was on his way to Friday evening Shabbat prayers. The accused would have been anxious to end the conversation and continue to the Synagogue for prayers before sunset. The complainant would have been aware of the religious significance of the prayers to the accused; and

(d) The complainant's behaviour was bullying in nature. The complainant asked the accused whether he was comfortable and continued to question him after the accused responded that he was 'not really' comfortable.

(e) The complainant's demeanour in the video is at least passive aggressive, if not menacing.

1. As to the 2015 attempt and the January 2017 email, Mr Hill submitted that the following inferences are open and should be drawn:

(a) Mr Serebryanski would have been aware in February 2017 of the complainant's attempts to contact him and aware that these attempts were being recorded;

(b) Mr Serebryanski would have been aware that the complainant had contacted his neighbours;

(c) Mr Serebryanski would have inferred from the email sent on 4 January 2017 that the complainant had a large public profile and the wherewithal to publish material in the media. That carried the implicit threat that if Mr Serebryanski did not engage with him, the complainant would publish damaging material;

(d) The second sentence of Mr Waks' email conveyed to Mr Serebryanski that the complainant was purporting to represent the community, applying greater mental and psychological pressure on the accused; and

(e) Mr Serebryanski did not wish to engage with the complainant as evidenced by his refusal to open his door in 2015 and his non-response to the 4 January 2017 email.

1. Mr Hill argued that Mr Waks had essentially engaged in stalking by:

(a) Locating Mr Serebryanski's address in New York;

(b) attempting to contact Mr Serebryanski personally on several occasions in person and via email;

(c) publishing material on the internet about Mr Serebryanski, including allegations of sexual abuse published on Facebook;

(d) publishing a book, in which he identified Mr Serebryanski as someone who had abused him as a child;

(e) loitering outside Mr Serebryanski's address on two occasions; and

(f) on one of those occasions, entering Mr Serebryanski's property through a gate.

1. Dr Harkess submitted that the admissions made by the accused were not made as a result of oppressive conduct. He relied on the following factors:

(a) The complainant had no official authority or power over the accused, unlike police officers interrogating subjects;

(b) The complainant himself was vulnerable, in a foreign country, acting without state assistance, and unsure how the accused would respond; and

(c) The accused could have withdrawn from the conversation at any time.

1. He argued that the footage demonstrates that the interactions between the complainant and the accused had a polite, if awkward, tenor. Dr Harkess argued that:

(a) The video does not demonstrate that the complainant made it impossible for the accused to return to his home, merely more difficult;

(b) The conversation took place in public, on a sidewalk with pedestrians passing by and the accused could have ended the conversation by walking away;

(c) The complainant's tone was polite and inquisitive throughout his interaction with the accused;

(d) The complainant behaved consistently with someone who believed they had been sexually abused; and

(e) There was no power imbalance between the accused and the complainant. Their interactions demonstrate that the pair interacted as equals.

1. Dr Harkess argued that the complainant conducted himself appropriately as an autonomous individual. He described the encounter as analogous to a pre-text call and referred me to the case of WK v R where the Court of Appeal held in relation to a 'pre-text' telephone conversation that:

What occurred was an unremarkable exercise by [the complainant] of [his] right as an autonomous individual to make a recording of a...conversation to which [he] was a party, without informing the other party to the conversation that was being recorded.[4]

2. Mr Hill argued that the physical nature of the confrontation, with a second person present, made it more difficult for the accused to withdraw and that dynamic distinguishes it from a pre-text call which can be terminated with the press of a button.
3. Dr Harkess invited the court to reject the Accused's characterisation of the complainant's conduct as vigilantism or a form of stalking, arguing that the evidence is insufficient to draw those conclusions. He argued that the complainant did not subject the accused to persistent harassing communications. Two years elapsed between the 2015 attempt and the 2017 interaction. The complainant had sent the accused one email in that time. The complainant was entitled to behave as an autonomous individual who believed he had been sexually abused.
4. Dr Harkess argued that Mr Waks did nothing wrong by entering Mr Serebryanski's property in 2015, knocking on his door, persisting and leaving when he realised the accused was unwilling to engage with him. At the end of the recording, Mr Waks observes that his actions were likely to cause the accused nightmares. Dr Harkess submitted that the complainant's comments about the likely effect of his actions on the accused is irrelevant to my assessment of whether in 2017 the admissions made by the accused were influenced by oppressive conduct.

1. The primary basis for exclusion is s 84 of the Evidence Act. The Accused relies also on ss 137 and 90 of the Evidence Act.
2. In keeping with Em v The Queen, it is appropriate to consider the application of ss 84 and 137 before considering s 90. As the High Court observed, s 90 is a 'safety net' provision which:

... is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act ...[5]

3. Pursuant to s 84 of the Evidence Act, 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 violent, oppressive, inhuman or degrading conduct, or a threat of conduct of that kind.
4. The following principles emerge from a review of the authorities:

(a) The onus is on the party seeking to adduce the evidence to establish on the balance of probabilities,[6] that the admission and its making were "not influenced by" proscribed conduct.[7]

(b) Oppressive is defined as 'burdensome, unjustly harsh...causing discomfort because uncomfortably great, intense', and oppression as 'the exercise of authority or power in a burdensome, cruel or unjust manner'.[8]

(c) The accused is not required to demonstrate that violent, oppressive, inhuman or degrading conduct did, in fact, influence the admission.[9]

(d) There is no requirement that the conduct be classified as unlawful or even improper.[10]

(e) Oppressive conduct need not be limited to physical conduct and can encompass mental and psychological pressure.[11]

(f) No intention to adduce an admission need be demonstrated.[12]

(g) Whilst the precise boundaries of the term "oppressive conduct" are uncertain, the relevant test is not whether the accused's will has been overborne.[13]

(h) The concept of oppressive conduct is not to be equated with "oppression" under the common law rules relating to voluntariness.[14]

(i) There must be, however, some evidence that indicates through legitimate reasoning that there is a reasonable possibility an admission or its making were influenced by proscribed conduct.[15]

(j) The party against whom evidence of the admission is sought to be admitted need not adduce evidence positively establishing a causal nexus between the proscribed conduct and the alleged admission.[16]

(k) The test for "influence" is not a stringent test,[17] nor does it require that the proscribed conduct be the sole or dominant factor influencing the admission.[18]

(l) The wide scope of the section in its application to both civil and criminal proceedings is a reason for not giving an expansive meaning to "oppression" in s 84.[19]

(m) Questions of probative value of the evidence and importance of the evidence in the proceeding do not arise under s 84.[20]

(n) A distinction may be drawn between admissions made as the consequence of perceived psychological pressure which is a response to an individual's predicament and those which are the product of oppressive conduct.[21]

(o) It is not necessary that the relevant impropriety be found in the conduct of the person to whom the statement was made.[22]

(p) It may be relevant to have regard to the character and content of the scenario, the context in which the admissions were made, and the applicant's personal characteristics and position in the matter.[23]

1. The accused asserts that the admissions against interest he made in 2017 were influenced by oppressive conduct on the part of the complainant and Mr Agassi. That oppressive conduct is said to be a concerted campaign that amounts to stalking as defined by s 21A of the Crimes Act 1958 (Vic).
2. The accused asserts that the complainant attended outside his home in Brooklyn in 2015 intending to confront him. He was accompanied by a camera operator and the episode was filmed. The accused avoided the confrontation by drawing his blinds and retreating into the building. The complainant trespassed by opening the gate to the accused's front window, yelling to the accused to come out and talk. Thwarted, the complainant left a note for the accused and warned his neighbours of the risk he posed to children.
3. The next overture was the email sent by the complainant on 4 January 2017 which drew no response. The accused asserts that implicit in that email was the threat that if the accused failed to account to the complainant for his alleged predations the complainant would generate adverse publicity. That threat is said to be implied by the Facebook link in the email and the reference to the complainant's book, "Who Gave You Permission?"[24]
4. The third episode in this course of conduct is the impugned confrontation on 17 February 2017. The accused argues that the complainant targeted him on a Friday afternoon at dusk, surmising that the accused would leave his Brooklyn house to attend synagogue, leaving him vulnerable to an ambush on the street. The complainant was in company with another man whom the accused invites me to accept was also younger than the accused and larger physically. The accused argues that part of the complainant's face is hidden and he is darkly clothed. That amplifies the intimidatory menace.
5. The accused asserts that the complainant positioned himself between the accused and the gate to his house, barring his retreat. It is not contended that the accused was prevented from turning his back on the complainant and walking away, but given the history of thwarted confrontations, the accused would have felt constrained to engage with the complainant, to mollify him in the hope that he would then be left in peace.

1. The critical passage in determining whether the admissions made by the accused were influenced by oppression, occurs early on in his encounter with the complainant. Having assured the accused that what he sought from him was an acknowledgment of what had allegedly been done to him, the complainant refers to Shavuot. The Accused replies that "nothing happened" at Shavout_._ He then tells the complainant,

Look I, there were, a lot went on but I want, I want to tell you one thing ... one that I've - I've been wanting to tell you for a long time ... I, at no point, did I ever want to harm you in any way ... I - I loved you ... and I - I only wanted to do ... what I thought you wanted ... I really - at point - at that point you were actually more advanced - more mature than I was ...

2. The accused in making those admissions prefaced them by telling the complainant that he had wanted to make those admissions for a long time and had wanted to make them to the complainant. It is therefore not possible to conclude that these declarations were relevantly influenced by oppressive conduct on the part of the complainant or Mr Agassi.
3. The admissions made by the accused would not have been made but for the presence of the complainant outside the accused's Brooklyn home, but the factors identified by the accused in combination do not amount to oppressive conduct. Even if the impugned declarations were influenced by psychological pressure engendered by the accused's predicament in having been confronted suddenly by the complainant, I do not accept that such pressure, alone or in combination with the other factors forming the course of conduct relied upon by the Accused, qualifies as oppressive conduct.
4. If I am wrong about that and the combination of the 2015 thwarted confrontation, the email and the "ambush" outside the accused's home in February 2017 qualify as oppressive conduct, I am nonetheless persuaded on the balance of probabilities that the admissions excerpted in paragraph 50 were not relevantly influenced by this conduct given that they were volunteered very early in the conversation, they were an attempt by the accused to explain himself and they were tellingly prefaced by his declaration that he had wanted to tell the complainant these things "for a long time." I do not believe therefore, that there is a reasonable possibility that the admissions made by the accused at that point in the conversation were influenced by oppressive conduct.
5. Accordingly, I decline to exclude the admissions identified in paragraph 50 pursuant to s 84 of the Evidence Act.

Section 137 of the Evidence Act

1. Pursuant to s 137 of the Evidence Act, I must refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused.
2. The Prosecution seek to rely on the statements made by Mr Serebryanski on 3 February 2017 in three ways as identified in the Prosecution Opening:

(a) Implied admissions to having had a sexual interest in the complainant when the complainant was between 10 and 12 years of age;

(b) Implied admissions to having acted on that sexual interest by engaging in sexual acts with the complainant of a kind, and at a time, consistent with those sexual acts that are alleged to have occurred in this case; and/or

(c) Implied admissions to having committed the acts the subject of charges 1 to 4.

1. A Notice of Intention to Adduce Evidence of Incriminating Conduct dated 5 February 2025 has been filed in relation to (c) above. The accused contests the Incriminating Conduct Notice and argument is yet to be heard. The accused asserts that the specific allegations underpinning charges 1-4 were not put to the accused in the 2017 encounter.
2. In assessing the probative value of the evidence, I do not intend to consider its value as incriminating conduct.

1. Dr Harkess submitted that even if sub-paragraph (c) were excluded, the probative value of the admissions is still very high. The evidence is capable of demonstrating that the accused had a sexual interest in the complainant when the complainant was a child of 10-12 years of age and a preparedness to act on that interest. At its highest, it supports the complainant's allegations by demonstrating a tendency on the part of the accused to have a sexual interest in pre-pubescent males and a willingness to act on that interest.

1. Mr Hill argued if the video of the 2017 encounter is admitted into evidence, the jury will have a distorted picture of the exchange where the bulk of the conversation is edited. The parts that are likely to be excluded include questioning by the complaint about the accused's sexual orientation, whether he remains attracted to children and how he satisfies himself sexually. The Accused cannot introduce this material to flesh out the context in which the earlier admissions are made without doing irreparable harm to the Accused's case. Additionally, it is argued that the probative value is modest given that the specific allegations were not put to the accused in the 2017 conversation and it cannot be demonstrated that his admissions relate to the charged acts.

1. I do not accept that vital context will be lost if irrelevant parts of the conversation are excised. As noted earlier, the admissions made by the accused are largely made very early in the conversation. The context for making them is not illuminated by the passages that are flagged for editing. The probative value of the admissions is high. The admissions demonstrate an aberrant sexual interest in children and a willingness to act on it. The path is still open to the accused to cross-examine the complainant or Mr Agassi about other aspects of his 2017 conversation with the complainant, although some rehearsal of the evidence in the absence of the jury may be required.
2. The probative value of the evidence is not outweighed by the danger of unfair prejudice and I therefore refuse to exclude it pursuant to s 137 of the Evidence Act.

Section 90 of the Evidence Act

1. Pursuant to s 90 of the Evidence Act, I have the power to exclude evidence of an admission if the evidence is adduced by the prosecution and, having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.

1. Mr Hill KC with Ms Thies submitted that I should consider the submissions made in relation to ss 84 and 137 in exercising my discretion to exclude the evidence under s 90 of the Evidence Act.

1. Dr Harkess submitted that if the 2017 confrontation was uninfluenced by oppression and if the probative value of the evidence is high, s 90 'has no work to do'. He submitted that there is no unfairness to the accused in adducing the 2017 conversation given he was aware of the recording device but had assumed that it had been switched off.
2. Although not expressly relied upon by the Accused, there are features of the complainant's conduct distinct from those relied upon as oppressive that arguably engage s 90. They include the surreptitious recording and the assurances made to the accused that the filming had been stopped at his request, that the complainant's intention in speaking to him was unrelated to pursuing legal redress and that its purpose was to facilitate closure for the complainant merely.
3. In determining whether these assurances encouraged the making of the impugned admissions, I note that the complainant commenced by telling the accused,

I'm not doing anything, I just want to talk to you...I just want to have a talk to you, I'm not here to do any harm, not to do anything. I just want to talk to you..I actually don't hate you. I just want you to know that ... I just feel a bit sorry for you. But for me it would be meaningful if you acknowledge what you did to me ... On Shavuot night, remember what happened at schul?

4. In response, the accused corrects the complainant, saying,

Wasn't the ... Shavuot, Shavuot, nothing happened. Ah, look I, there were, a lot went on, but I want, I want to tell you one thing ... one that I've - I've been wanting to tell you for a long time.

5. Thereafter, the impugned admissions were made including a declaration that the accused loved the complainant, that the complainant was more mature at ages 10-12 than the accused who was then in his early 20's, the accused "[took] the lead" from the complainant, the accused was seeing what the complainant wanted and was trying to follow along, the accused had tried to do what he thought the complainant had wanted.
6. Up to this point, the complainant had not materially misled the accused or induced him to participate in the conversation by assuring him, for instance, that a confession will provide closure and forestall criminal proceedings.
7. After these admissions, the conversation continued and the complainant tells the accused,

My point for you isn't to go put you in gaol, that's not my point. For me this is more about trying to understand what actually happened because in my mind it's still that 11, 12 year old kid. Okay?

8. That was arguably deceptive given that the complainant had been to the police and had made a number of statements alleging that the accused had offended against him. He also supplied the recording to police which undermines his professed intention for engaging in the conversation. No argument was advanced asserting that these representations were deceptive or that they induced the accused to make admissions against interest.
9. The accused responded by observing that the complainant had his point of view, the accused had his and then there was the truth. He then volunteered,

But what - as I perceived it at the time, I was completely infatuated with you and I wanted to do what I thought you wanted and wanted to make you happy ... obviously that wasn't how to make you happy is - as you - if it's resulted in all this clearly it wasn't the right thing.

10. In determining whether this portion of the conversation should be excluded, I note, as Gummow and Hayne J observed in Em v The Queen,

...the central issue is whether the evidence of admissions should not have been admitted because, having regard to the circumstances in which they were made, it would be unfair to the defendant to use the evidence. That question requires consideration of whether there was identified some aspect of the circumstances in which the admissions were made that revealed why the use of the evidence, at the trial of the person who made the admissions, "would be unfair". That is, the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as "fair" or "unfair".[25]

11. However, the central admissions made by the accused, as adverted to elsewhere, were prefaced by his declaration that he had wanted to make those admissions to the complainant for a long time. Those admissions are similar in nature to those excerpted at paragraphs 75 and 77 above. The earlier admissions were not made in response to inducements or misrepresentations by the complainant.
12. In applying s 90, I have reminded myself of the following legal principles that can be gleaned from the authorities:

(a) Unfairness is a highly fact-specific concept.[26]

(b) The onus rests with the Accused.[27]

(c) The focus of s 90 is on the circumstances in which the impugned admission is made.[28]

(d) Relevant considerations include whether the admission was voluntary, the means used to obtain the admission; whether there has been illegal or improper conduct on the part of an investigating official; the defendant's mental or emotional state, or state of sobriety; and whether the defendant has been effectively robbed of his right to silence. The reliability of evidence can be a factor affecting the fairness of its use.[29]

(e) Probative value has little or no bearing on the exercise of the discretion under s 90.[30]

(f) It is important to consider whether the accused's freedom of choice, specifically in relation to speaking with the person who received the admission, was impinged upon.[31] While this is particularly relevant in cases involving admissions made to police, it is not so confined.

1. Had the admissions in paragraph 77 above been the first to have been made by the accused during the February 2017 conversation, I may have excluded them pursuant to s 90 because they were immediately preceded by the complainant's assurances that his purpose in raising the topic of his alleged abuses by the accused was unrelated to the pursuit of criminal proceedings. I am not satisfied however that the accused's response excerpted at paragraph 79 was influenced by the representation excerpted at paragraph 77. In the absence of such a representation, the accused had earlier in the conversation made admissions similar in character and had done so because he had wanted to "for a long time."
2. I accept that there was a degree of importuning in 2015, but I do not accept that the accused's admissions in 2017 were influenced by those activities in such a way as to render the admission of the 2017 conversation unfair to the accused. I do not accept that the 2015 encounter qualifies as a circumstance in which the 2017 admissions were made. If I am wrong about that, I do not accept that it would be unfair to the accused to admit the 2017 admissions either because of the 2015 importuning or the confronting way the 2017 conversation was initiated, or a combination of both. In saying that, I accept that Mr Waks and Mr Aggasi planned to engage the accused when he left his house for Friday prayers. I also accept that the encounter would have uncomfortable for the accused. I also accept that the accused was deceived into believing that the recording had been suspended. That does not affect the dynamic in which the central admissions were made and the fact that they were prefaced by the accused's declaration that he had wanted to say these things to the complainant for a long time.
3. Having regard to the circumstances in which the accused's admissions were made, it would not be unfair to use the evidence for the purposes identified by the prosecutor and I therefore decline to exclude the evidence pursuant to s 90 of the Evidence Act.

[1] Manny Waks, Who gave you permission? The memoir of a child sexual-abuse survivor who fought back, (Scribe Publications, 3 October 2016), 366.

[3] Prosecution Opening dated 5 February 2025 at [45].

[4] WK v R [2011] VSCA 345, at [38].

[5] Em v The Queen [2007] HCA 46, [109].

[6] Evidence Act 2008 (Vic), s 142.

[7] Deacon (n 13) at [30] citing Habib (n 6) at [273].

[8] Habib v Nationwide News Pty Ltd [2010] NSWCA 34 at [245], ('Habib').

[9] R v Zhang [2000] NSWSC 1099, at [44].

[10] Douglass v R [2020] NSWCCA 284 at [138], ('Douglass').

[11] Higgins v R [2007] NSWCCA 56, at [26].

[13] Habib (n 6); R v Ul-Haque [2007] NSWSC 1251, at [120].

[14] Deacon v The Queen [2019] NTCCA 21; (2019) 282 A Crim R 303 at [34].

[17] Ibid at [280]; Zhang (n 8) at [44].

[18] Zhang (n 8) at [44]; R v Sumpton [2014] NSWSC 1432, at [138].

[20] R v Lynn (Rulings 1 - 4) [2024] VSCA 373, [218].

[21] Deacon (n 13) at [32] citing R v Tang [2010] VSC 578 at [25].

[26] DPP v Myles (2021) 293 A Crim R 166, at [27] citing Em (n 5) at [56].

[28] Headland v R [2023] VSCA 174, at [41].

[30] R v Em [2003] NSWCCA 374, at [110].

[31] Pavitt v The Queen [2007] NSWCCA 88, [70].