R v Beretov

The pretext call

1. The evidence at trial will come from primarily the complainant, as the only witness to the alleged assaults, and from others to whom she complained. No other particularly probative evidence is available to the prosecution, other than what are said to be admissions implicit from the pretext call.
2. The pre-text call was recorded on 5 February 2018. A transcript is part of Voir Dire exhibit A and a disc is Voir Dire exhibit B. I was asked to listen to the disc in chambers. The disc contains both the pretext call and an earlier conversation between the complainant and the accused's wife. In the earlier call to the Beretov home it was agreed that the complainant would call again later that day when Mr Beretov returned from shopping. My listening to the actual recording was said to be important because the manner in which Mr Beretov responds to the accusation and the length of any pause could also be taken into account as a relevant representation by him. I could draw nothing adverse to the accused from listening to the recording, although I realise and accept that a jury, as the ultimate tribunal of fact, might do otherwise.
3. The pertinent part of the pretext call is: Complainant: "I wanna know why you sexually assaulted me, when I was like eleven years old and I was young and vulnerable… and I just wanted to let... wanted to let you know, you robbed me of my childhood and innocence. You also affected my life badly in so many ways. I'm learning to speak up for myself and starting to live again. By the way I told my whole family what you did to me and…" Accused: "… Mmmm." Complainant: "… and they are just so disgusted with you and can't stand you, and I so hate what you did to me, and I will never ever forgive you for what you did. I just wanted to let you know. That..." Accused: " Yeah..." The following exchange then takes place: Complainant: "That's it?" The accused: "That's it." The complainant: "That's it ... Yes". The accused: "Yeah". The complainant: "Is there anything you have to say?" The accused: "No. Nothing at all."

Submissions

1. This pretext call involves the complainant confronting the accused for the first time about an allegation more than 30 years after the alleged abuse. The prosecution submit that as a consequence the accused's response to the accusatory statements meets the test for relevance evidence, s 55 Evidence Act, and that it should not be excluded by operation of either sections 90, 135 or 137 Evidence Act.
2. Comprehensive written submissions were provided. Reliance was placed on R v Rose [2002] NSWCCA 455, at [260]: "Silence in the face of an allegation can amount to a representation that the allegation is true where in the circumstances it is reasonable to expect that the allegation would be answered by an explanation or denial…There is no reason why the word "representation" as used in the Evidence Act. should not encompass a communication made by silence or a failure to respond." And at [261] "… there are instances in the law where silence gives rise to an implied representation of fact. Christie itself is one." The reference to Christie is R v Christie [1914] AC 545, at 554.
3. Madam Crown also made reference to R v Ryan [2013] NSWCCA 316 and Christian v R [2012] NSWCCA 34. In Christian, some portions of pretext calls were relied on to indicate "silence indicating acquiescence or acceptance of propositions put by the complainant." That decision also reinforced the need for clear judicial directions to a jury if such evidence is to be admitted.
4. Madam Crown submitted that in all the circumstances, and in the context of the conversation, the accused's silence and failure to deny or assert his innocence is capable of amounting to an implied representation. She says it is reasonable to expect that the accused would have answered with some form of explanation or denial. And, if accepted as admissions, this silence and failure to respond, as could be expected of an innocent man, contradicts the accused's denials of any impropriety toward the complainant made in a police interview that will be before the jury.
5. It is submitted that if the jury accepts the inference contended for by the prosecution the probative value of the evidence must be considered high and accordingly this conversation is powerful evidence in its case. Further, it is said a proper direction can cure any potential prejudice arising from representations that might appear equivocal or ambiguous.
6. It is submitted that while the allegation to a sexual assault at 11 is not about a specific count this does not detract from the probative value of the failure to give the response expected of an innocent man. Reliance was placed on R v Freeman, unrep, 18/12/86, NSWCCA, at 4-5: " Where failure to deny is relied on, it is necessary to ensure that, before any such evidence is admitted, the circumstances are such as to leave it fairly open to conclude that silence is such as to convey a tacit admission of the truth of what is being asserted. This will, of course require consideration of whether the circumstances were such that some denial or explanation might reasonably be expected:
7. In response, Mr Boland, counsel for the accused, submitted that when considered in context the accused silence was not an admission and even if it was it was not capable of being related to any act founding a count in the Indictment. He noted that while there had been an expectation the complainant would call, as she had earlier arranged this with the accused's wife, there could have been no expectation by the accused that he would be hit with a "stunning proposition," while his wife was there in the room. Mr Boland said the circumstance made the silence and the response "nothing at all" was of no relevance; and if relevant at all, it would have little probative value. Its admission into evidence, he said, would prejudice the accused by encouraging the jury to engage in speculative reasoning.

Relevant principles

1. For the purpose of the exercise required by sections 56, 56 Evidence Act a judge must assess the capacity the proposed evidence has to bear upon the proof of the facts in issue. Subject to specific exceptions, evidence is admissible in a criminal trial if it is relevant. Relevant evidence is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue
2. For the purpose of the exercise required by sections 90, 135 and 137, a judge must also consider the probative value of the evidence at its highest, from the prosecution perspective. It is for the jury, as the triers of fact, to determine weight to be given to admissible evidence. Those considerations do not absolve a judge of their responsibility to ensure a fair trial to both parties - determining admissibility issues requires judicial judgment.
3. The "probative value" of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue: Dictionary to the Evidence Act 1995. An assessment of probative value should take place without regard to the availability of any competing inferences, or alternative interpretations, of the proposed prosecution evidence: R v Burton [2013] NSWCCA 335, at [196] - [198].
4. What interpretation will actually be put on the evidence if it is admitted is a matter for the jury. As High Court said in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 16, at [160]: "Where an item of evidence is capable of different interpretations, or is susceptible of "competing inferences", its actual probative value will depend upon what interpretation is placed on it, or what inferences are actually drawn from it. It is no part of the judge's function to make that assessment. The function of the judge is to assess the extent to which the evidence has the capacity to bear upon the proof of the fact or facts in issue. Once it is understood that an assumption as to the jury's acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness giving it, can arise."
5. The High Court in IMM was clear; in carrying out this evaluative exercise, a judge must not make findings as to the weight of the evidence or its likely acceptance or rejection by the jury - questions of credibility, reliability and weight should be disregarded.
6. What was said in IMM was reinforced in Bauer v The Queen [2018] HCA 14, at [69]. The High Court there noted: "Reference to competing inferences is unhelpful, and likely to lead to error. Relevantly, the only sense in which competing inferences are of significance in the assessment of the probative value of evidence is in the determination of whether the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."
7. The prosecution submissions relating to probative value carried with them an implicit assumption as to what an innocent person would do if confronted with an accusation of child sexual assault. If that relevant consideration is available that there may be alternative inferences available does not preclude admissibility. If the implied representation in the pretext call is capable of establishing what the prosecution asserts it does, it is an admission by conduct.
8. In this trial it is expected that issues of the credibility and reliability of this complainant will be of significance. If an admission was made by the accused it would be of considerable importance to the prosecution case. "Admission" is defined widely in the Dictionary to the Evidence Act 1995 as "a previous representation that is: 1. made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and 2. adverse to the person's interest in the outcome of the proceeding."
9. Turning to section 90: I must determine, by having regard to the circumstances in which the alleged admission was made, whether it would be unfair to the defendant for the prosecution to use this evidence.
10. As to section 135: here relevantly, a judge may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be misleading or unfairly prejudicial to a party. Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. Prejudice is unfair if there is a real risk that the evidence will be misused by the jury in some unfair way: see Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37, at [91], and the cases cited therein.
11. Section 137 mandates rejection of evidence with probative value if that probative value is outweighed by the danger of unfair prejudice. One danger of unfair prejudice is the risk the jury will "use the evidence or be affected by it in a way that the law does not permit": Pfennig v the Queen (1995) 182 CLR 461; [1995] HCA 7 at 528, per McHugh J.
12. The law does not permit reasoning based on prejudice or unsound premises. Unfair prejudice may be occasioned because evidence has some quality which is thought to give it more weight in the jury's assessment than it warrants or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence: Festa v The Queen (2001) 208 CLR 593 at 602-603 [22] per Gleeson CJ; The Queen v Dickman [2017] HCA 24; (2017) 261 HCA 601 at [48]. That is, they might reason in a way logically unconnected with or extraneous to the issues in the case or which might provoke an irrational emotional and therefore prejudicial response against the accused.
13. When considering the risk of unfair prejudice a judge must consider if prejudice can be ameliorated by proper directions. When considering silence in the face of an accusation specific guidance is provided about the terms of directions in the Criminal Trials Bench Book under [2- 010] 'Accusatory statements in the presence of the accused.' The Bench book direction includes the following passage: "The evidence is only relevant if you find that the accused's lack of response when confronted with the allegation amounted to an admission that it was true. That is, "A silent acceptance of the truth of what was said because the [accused] had nothing to say in defence to the allegation made to him, … It is really a matter for you to apply your common sense and your experience of life and what you might expect a person in the position of the accused to do or say when faced with such an allegation, although you should also consider that people do not always act predictably in certain situations. Here you are considering the conduct of the accused, and not the conduct of some hypothetical person in [his/her] position. You must also consider whether there is an alternative explanation for the accused's lack of response [or response], other than that [he/she] accepted the truth of what [name of witness] said. In this case it has been put that [refer to defence response]." (My emphasis added).
14. The Court of Criminal Appeal in Ryan set out a sample direction that could be adopted in the event the evidence is deemed admissible. At [76] and [77]: " ... the jury ... should only use this evidence as an admission if they were satisfied that: (a) in respect of any particular allegation made in the pretext conversation, the [respondent] had by his speech, silence or conduct admitted the truth of the allegation; (b) to the extent that the Crown was relying on the [respondent's] silence or failure to deny an allegation, the circumstances were such that the [respondent] should have been expected to make a denial so that his reaction in failing to deny the allegation involved an admission of the truth of the allegation; (c) the [respondent's] response in respect of any particular allegation was not explicable by such possible explanations as a desire to placate the complainant, or frustration, etc; and that it would not be open to the jury to use the evidence as an admission of guilt in relation to any particular count on the indictment."

Consideration

1. Here, the complainant asked a question that carried, as its premise, an allegation, "I wanna know why you sexually assaulted me, when I was like eleven years old and I was young and vulnerable…" While the prosecution submits the response of the accused amounts to an admission that he did sexually assault the complainant when she was "like 11 years old," it is conceded that it does not amount to an admission to a specific count on the indictment. The inference sought to be relied on is that the silence and subsequent response is an admission to the nature of the relationship between the accused and the complainant. A jury can be directed that this is not an admission to a specific count and that they still need to be satisfied of each count beyond reasonable doubt.
2. There are in court, and other aspects of life, events or circumstances were silence speaks louder than words. After escape gates are closed off by a careful, cross-examination, police interrogation or journalist's interview, a subject can be left with no other option than to make an admission or be damned by their silence. Skilful cross-examination can lead to a situation where any answer other than silence would be a lie. This is not that case.
3. In Burton, two competing inferences were identified; one an admission of guilt of criminal conduct, the other acceptance of some kind of moral wrongdoing falling short of criminality; one was benign, the one inculpatory. Simpson J, at [160], saw a "difficulty with the logic of the proposition that the existence of an alternative interpretation robs the evidence of the respondent's words of probative value, or diminishes its probative value. The probative value of evidence depends upon what the tribunal of fact draws from the evidence. If the jury accept the Crown interpretation, the probative value of the evidence will (as a matter of fact and reality) be high."
4. The prosecution here submit that the jury should be able to draw a "common sense" conclusion from the context call. And I note that term is used in the Trial Bench book at [2- 010].
5. I have a preference not to resort to a direction that asks a jury for the application of 'common-sense,' as that term is inherently vague and incapable of measure. Subsequent reviews of decisions said to be based on a 'common sense' evaluation often show a subjective value judgment was made. The invocation of common sense principles by a judge to a jury often provides little assistance, as the judge has no idea what the individual juror's assessment of common sense might be. Further, a suggestion by a judge or prosecutor that a certain form of behaviour is the common sense response carries with an implicit direction that it would not be sensible to take a contrary view.
6. While juries are sometimes exhorted by counsel and judges to use their common sense, I prefer to direct them that any decision they make must be a rational one formed after evaluation of all the known facts and the drawing of inferences available from those known or proved facts.
7. Professor Haydon, as he then was, in his seminal article, Silence as Evidence 1 Monash U. L. Rev. 53 (1974), suggested there were three 'common sense' inferences that could be reasoned from silence in the face of an accusatory statement; 1. Consent as an implied admission - where a denial would be expected if the statement was false. 2. As a sign that the party is conscious of guilt or liability - in the same sense as a lie or other implied admission. 3. To make any defence later advanced difficult to believe.
8. He then makes three equally important points: 1. Sometimes the three inferences may all be drawn from a given set of circumstances, sometimes none can. (At p 54.) 2. The problem is that it is often dangerous to draw these common-sense inferences. A person may be silent in the face of an accusation for many reasons other than guilt. He then lists some; including, that the circumstances may make it inappropriate to contradict the accuser or "silence may be due to contempt rather than consent. 3. "Further, human reactions vary so much; the guilty may deny guilt strongly while the innocent stay silent." (At p55).
9. Over the years many judicial directions said to have been founded on common sense have been the subject of legislative correction: see for example ss 294 and 294A Criminal Procedure Act 1988. Expert opinion and a greater understanding of the human condition has taught us that such assumptions are often based on stereo typical preconceptions, often those whose model is an older, male, Anglo-Celt and middle class, judge.
10. No expert evidence will be called in this trial to say what the response expected of an innocent man would in fact be. It is however pertinent to note that expert evidence is intended to be called by the prosecution to assist the jury understand why, despite a common presumption victims of sexual assaults make immediate complaint, there can be considerable delay in making doing so: s 79 & 108C Evidence Act 1900. And, that as required by s 294 Criminal Procedure Act 1988, I will give the jury a direction that delay in complaint of 30 years about the alleged conduct of the accused "does not necessarily indicate that the allegation that the offence was committed is false. There may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about such an assault."
11. The relevant "fact in issue" in this trial is the existence of the sexual relationship implied in the complainant's first assertion. The assertion is based on one meaning suggested as being capable of being given to the absence of response by the accused. The assertion is not directly attributable to any act the subject of a count in the indictment or otherwise specifically identified. The accused's silence in the face of the accusation is said to be suggestive of an acknowledgement that he had had sexually assaulted the complainant when she was 11. Only if that inference is available and accepted it could it rationally affect the probability of the existence of that/those facts in issue.
12. If the inferences were not available, the complainant's evidence at trial could not be strengthened by evidence that the accused failed to respond to her accusation in the pretext call.

Determination

1. The evidence was not relevant and the call must be excluded on that that basis: s56(2) Evidence Act. The accused did not by his demeanour or conduct acknowledge the truth of the assertion made by the complainant. The accused did not by his demeanour or conduct acknowledge anything about the assertion made by the complainant.
2. It is not fairly open to conclude that the accused's silence could be a tacit admission of the truth of what is being asserted by the complainant. Nothing in the accused's silence is an implied representation of agreement with the facts asserted by the complainant. It was not an admission. And even if taken at its highest from the prosecution perspective, it could be so regarded as the circumstances of the conversation itself do not involve questions and answers but statements of presumed facts and demands.
3. Further, the pretext call conversation is so replete with ambiguity as to render that conclusion an unfair one to draw. The presence of the accused's wife and the earlier call leading to an expectation the call would be a polite catch up are another circumstance placing the accused at a disadvantage. Nothing could have prepared him for the initial accusation. The way in which the accusations were made meant any attempt to derive meaning from a response other than an unambiguous acceptance of responsibility would be unreliable.
4. No question of competing inferences arise here, as, in the circumstances, no inferences could be drawn that were not purely speculative. Here a jury would not, should the pretext call be admitted, be asked to consider two or three competing inferences. Rather, every possible alternative inference that might be drawn by the application of common, or uncommon, sense is available. One inference will be suggested by the prosecution, but that suggestion could carry no more weight than any other and is made only because it is implicit in their prosecution of the case against the accused.
5. The implicit assertion in the prosecution submissions is that no innocent man would respond as the accused did in the pretext call. The foundation for that assertion has not been established, either in the call itself or the circumstances leading up to it. The only implicit presumption that might make the call relevant is one that presumes the guilt of the accused.
6. The relevance of the pretext call does not involve a choice between competing inferences. Rather, a submission based on a presumption the accusation is true will be made. A submission in those circumstances has no probative value.
7. If some potential relevance is given to the evidence, s 90 directs attention to the circumstances in which the admission was made. Section 90 is a statutory formulation of a long standing common law discretion to exclude, in a criminal trial, evidence that has been obtained in circumstances that would render its admission unfair: see Burton at [88] and the cases there cited. Section 90; unlike s 137, does not call for any assessment of the probative value of the evidence: Burton at [89].
8. The pretext call was made after 30 years, in circumstance where the accused was with his wife and could not have expected what was about to be said. Those circumstances create a fundamental unfairness. It was not a situation where the comment was preceded by remarks that drew attention to the time and place or the prior history of the relationship. It was not a case where he was freely talking about an event and did not expect to be recorded, such as in EM v The Queen (2007) 233 CLR 67. It was not a case where a crime had just been committed in the presence of the accused, as in the example given in the Trial Bench Book or in Christie. But I note, as Lord Reading observed in Christie, even then there is a danger of prejudice if the accused did not by his demeanour or conduct acknowledge the truth of the assertion: At 565.
9. Turning to section 137: This case does not involve evidence giving rise to a question of which competing inference is to be preferred but rather a choice between a myriad of possible suggestions. As a consequence the pretext call it is irrelevant and even if relevant could led to unfair prejudice or as Lord Atkinson said in Christie, "grave injustice," as the jury having heard the call could not and would not rid their mind of it. Although of little value its admission could lead to unfair prejudice incapable of correction by direction.
10. For similar reasons the admission into evidence of the pretext call would both be unfair and be apt to mislead the jury: s 135.

Order

1. The pretext call cannot be admitted in evidence in the trial

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