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[2010] ACTSC 145
procedural. Application to exclude evidence dismissed; interview evidence and admissions (including partner's statements attributed to the accused under ss 87-88) are admissible at trial (paras 111, 61, 104).
Ms Bormann applied to exclude statements and documents from a Centrelink interview on the basis they were improperly obtained or were admissions made under inadmissible circumstances. Refshauge J found the Centrelink employee was a Customer Service Advisor, not an investigating official, and that the partner had permission to speak and the accused adopted or authorised some statements and signed documents. The court held ss 87-88 allowed the partner's statements to be treated as the accused's admissions. The applicant did not prove any 'impropriety' under s 138 or that s 85 applied; failures such as no caution, lack of interpreter or non-recording did not alone make the evidence inadmissible. The application to exclude was dismissed and the evidence remains admissible at trial.
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2 cited instruments linked from this judgment.
The applicant, Ms Brigitte Christine Bormann, faced prosecution arising from an alleged overpayment of social security benefits. She and her partner attended Centrelink in April 2008 to seek advice about a suspected overpayment. At a 17 April 2008 interview with a Customer Service Advisor, Ms Wendy Blatchford, statements were made concerning the commencement date of the domestic partnership (identified as 11 July 2001), the partner's employment and superannuation income, and general matters relevant to Centrelink's assessment of entitlement. Parts of forms calculating assets and income (containing the partner's financial details and a statement of the domestic relationship) were completed and signed. An overpayment was quantified and repaid.
Following that repayment, investigators contacted Ms Bormann and prosecution ensued. Before trial, Ms Bormann sought to exclude evidence of the interview and related documents under: (a) s 138 Evidence Act 1995 (Cth) (improperly obtained evidence) in conjunction with s 139(2); and (b) s 85 Evidence Act (admissions made in presence of investigating official or person capable of influencing prosecution). Refshauge J heard the application and dismissed it on 17 November 2010 (paras 1, 111).
Key factual findings used for the admissibility application were: the partner began explaining on Ms Bormann's behalf and the interviewer asked for and received permission for the partner to speak for her; some documents were completed by the partner but signed by Ms Bormann; the interview was conducted in English, Ms Bormann did not ask for an interpreter, and she participated sometimes; the Customer Service Advisor did not warn that admissions might be used in prosecution and had no authority to promise non-prosecution; after the interview repayments were made and investigator contact occurred (paras 11–41).
The legal contest concerned (1) whether statements of the partner could be admitted against Ms Bormann under ss 87–88 Evidence Act; and (2) whether any exclusionary rule applied (s 85 or s 138). Refshauge J held the partner's statements were properly treated as admissions attributable to Ms Bormann and that neither s 85 nor s 138 required exclusion (paras 51–61, 66–76, 73–104). The application was dismissed (para 111).
Three principal legal determinations explain the decision.
Attribution of partner's statements to the accused under ss 87–88 Evidence Act (paras 51–61). The judge relied on the interview evidence: the partner began to explain details on Ms Bormann's behalf; Ms Blatchford asked the accused if the partner had permission to speak and the accused said "Yes"; the accused accepted that she let her partner deal with her finances and that he often spoke because his English was better (paras 20, 19, 60). Those facts made it 'reasonably open' to infer adoption/authority and thus to treat the partner's statements and some signed documents as admissions by the accused (para 61).
Non-application of s 85 (paras 69–72). Section 85 excludes admissions made to an investigating official or in the presence of a person the accused knew or reasonably believed could influence the prosecution decision. Refshauge J concluded Ms Blatchford was a Customer Service Advisor, not an 'investigating official' within the Evidence Act (paras 28, 66–68). She had no power to arrest, no training in taking statements for prosecution, no role in investigation or in deciding prosecutions, and did not form any belief the accused had committed an offence. Hence s 85 did not apply to the interview evidence (paras 66–72).
No improper obtaining under s 138 (paras 73–104). The judge applied the two-stage approach: applicant bears the onus to prove, on the balance of probabilities, that evidence was improperly obtained; only then does the court weigh desirability against undesirability of admission (para 64). He summarised the meaning of 'impropriety' (para 87), drawing on Parker v Comptroller‑General and subsequent authorities. The applicant alleged lack of caution, absence of interpreter, inadequate record, inducement (alleged promise of no prosecution), and lack of opportunity to obtain legal advice (para 75). The court found none of those matters, singly or together, established an impropriety causative of the evidence. Critically, the alleged assurance about prosecution (if made) came after the admissions; the adviser had only said prosecution 'may' not occur (paras 25–26, 33, 36–38). There was no contravention of law; the adviser was not bound by investigative protocols applicable to police; and failure to record or caution by a non-investigating official did not render the evidence improperly obtained (paras 76–96). Because the applicant failed to establish improper obtaining, the balancing exercise under s 138 did not require exclusion (paras 79–104).
The judge also noted the public interest in giving the Commonwealth Director of Public Prosecutions due opportunity to consider personal circumstances (paras 105–111), but this did not displace legal findings on admissibility.
Before this decision, principles about admissions made by third parties, and the scope of 'investigating official' for s 85 and 'impropriety' under s 138, were established in authorities such as R v Christie, R v Alexander, Parker v Comptroller‑General, R v Cornwell, Robinson v Woolworths, and others. Those cases set out that statements by others may be adopted, that not every investigatory defect is an impropriety, and that s 138 requires causation and consideration of community standards and fairness.
R v Bormann applied and reaffirmed these principles in the social security context. It emphasised:
Practical indicators of adoption/authority (permission to speak, the accused's conduct, execution of documents) suffice to render the third-party statements admissible under ss 87–88 (paras 51–61).
The label and functions of the interviewer are central: Centrelink Customer Service Advisors are not automatically 'investigating officials', so investigatory protections tied to that status do not attach merely because a government official facilitates information gathering (paras 66–72).
The 'impropriety' test under s 138 must be applied with recognition that not every procedural lapse (lack of caution, no interpreter, non‑standard recording) by a non-investigating official is an impropriety sufficiently serious to exclude evidence; the impropriety must causally produce the evidence and be sufficiently inconsistent with community standards of law enforcement to undermine conviction fairness (paras 79–96, 87).
Thus the decision sits within the established trajectory rather than shifting the law. It confirms that the structural protections for admissions and for exclusion of improperly obtained evidence are context-sensitive and depend on the function and authority of the person obtaining the statement.
Para 61: "On the basis of this evidence...it is reasonably open for the statements made by Ms Bormann's partner to be found as admissions...made by her."
Plain-English: Because the partner spoke with the accused's permission and she accepted or adopted what was said (including by signing documents), a court can treat those statements and signed documents as if the accused herself had made them.
Para 72: "I am satisfied that s 85...has no relevance to the evidence of Ms Blatchford..."
Plain-English: The rule excluding admissions taken by investigators does not apply here because the Centrelink worker was not performing an investigative role.
Para 87 (i–v): The judge's multi-part test for impropriety: identify minimum investigative standards; impropriety must be clearly inconsistent with them; impropriety need not be deliberate; not every failing is impropriety; causation and community confidence are required.
Plain-English: To exclude evidence for being 'improperly obtained', the court asks whether the way the evidence was obtained breached the minimum standards expected of those who enforce the law. The breach must be serious and must have caused the evidence to be created, and it should be of a kind that would make the court's use of that evidence look unfair to the community.
Para 104: "There is no basis for exclusion..."
Plain-English: After applying these principles to the facts, the judge concluded the interview and related evidence should stay in the trial.
This judgment will be directly relevant where:
A non-police government official (for example, a benefits agency Customer Service Advisor, social worker, or other administrative official) elicits information that may later be used criminally; whether that person is an 'investigating official' and whether evidence can be excluded under ss 85 or 138.
A third party (partner, agent, nominee) speaks in an administrative interview where the accused is present and later claims those statements are inadmissible when used against her; the court will look for express permission to speak, the accused's oral or conduct-based adoption, and signed documents.
The defence argues exclusion because of procedural failings in an administrative interview: lack of caution, no interpreter, failure to record, or alleged promises of immunity. The court will test whether those failings amount to an impropriety causative of the evidence and of sufficient seriousness.
Social security prosecutions where repayments and voluntary disclosures occurred prior to prosecution; the decision underscores that voluntary attendance and repayment are relevant to the public interest but do not automatically render admissions inadmissible.
In short, the precedent is triggered when admissions originate in administrative, non-investigative environments and are later relied on criminally.
R v Bormann is an interlocutory application decision from the ACT Supreme Court that applies established authorities (Parker, Cornwell, Robinson, others). Later courts considering admissions derived from administrative interviews are likely to treat Bormann as a clear application of the established tests:
It will be cited where the question is whether an administrative official counts as an 'investigating official' for s 85 purposes. The factual focus on role, training, power of arrest, investigatory functions and whether the person could influence prosecutions is the key touchstone (paras 66–72).
It will be used to support admissibility of third-party statements where there is evidence of permission/authority and the accused's adoption of the statements (paras 51–61).
It will be cited to limit the threshold for 'impropriety' under s 138, emphasising causation and the need for serious breach of minimum investigative standards rather than mere procedural imperfections (paras 79–87).
Practitioners should expect courts to follow Bormann where facts mirror an administrative setting; conversely, where interviewing officials are agents of law enforcement or form part of an investigatory function (or where clear coercion or deception exists), Bormann's outcome will not bind contrary findings.
Borderline 'investigating official' cases: Bormann distinguishes a Customer Service Advisor from an investigating official. But where administrative staff work closely with fraud investigators, or where agencies have hybrids of service and enforcement roles, future courts must delineate more finely when an official's conduct attracts s 85/part 3C protections. The judgment cites Pavitt and related authorities but leaves practical testing at the level of functions and training (paras 66–68).
Agent-of-investigator and agency cooperation: The decision treats absence of evidence that the interviewer was an agent of investigators as dispositive. Where cooperation between agency staff and investigators is more direct, or where evidence shows deliberate coordination, courts will need more granular criteria to decide agency v agency roles.
Promise or inducement nuance: The judge accepted there was no clear promise of immunity and that, in any event, any such statement was made after admissions. But the line between an innocuous comment and an inducement that renders admissions unreliable could arise more sharply where inducements precede admissions or where the accused's comprehension is limited.
Vulnerable persons and interpreter obligations: The court discounted the absence of an interpreter in these facts, noting the accused's English competence. Where vulnerability (age, literacy, cognitive impairment, language) is more acute, courts may be required to consider whether failing to provide interpreter services or appropriate supports crosses the threshold into impropriety.
Recording and procedural safeguards: Bormann holds non-recording by a non-investigating official does not automatically taint admissibility. But there remains debate about whether critical interviews in regulatory/fraud contexts should be subject to minimum recording standards to ensure reliability; the judgment suggests this is context-dependent (paras 94–96).
These open questions show the decision is fact-sensitive. Its application requires careful examination of roles, timing of statements and the causal link between any challenged conduct and the evidence relied upon.
[2010] ACTSC 145 (17 November 2010)
ADMISSIBILITY OF EVIDENCE - admissions made by accused's partner - whether representations made by accused's partner can be considered to be the admissions of the accused.
ADMISSIBILITY OF EVIDENCE - section 138 of the Evidence Act 1995 (Cth) - application to exclude evidence improperly obtained by interviewing officer - section 85(2) of the Evidence Act 1995 (Cth) application to exclude admissions made unless the circumstances of making the admissions are such that it is unlikely that the truth is adversely affected - application dismissed.
Crimes Act 1914 (Cth) ss 23N, 23V, Pts 1C, 3C
Social Security Act 1991 (Cth), Pt 2.8A
Paragraphs 2.9 and 2.10 of the Commonwealth Director's Prosecution Policy of the Commonwealth
R v Christie [1914] ACT 545
R v Alexander [1994] VicRp 58; [1994] 2 VR 249
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [No 4] [2006] NSWSC 90
Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 83 ALJR 494
R v Coulstock (1998) 99 A Crim R 143
R v Esposito (1998) 45 NSWLR 442
R v Truong (1996) 86 A Crim R 188
R v Naa [2009] NSWSC 851; (2009) 197 A Crim R 192
Australian Securities and Investments Commission v Sigalla (No 2) [2010] NSWSC 792; (2010) 240 FLR 327
Robinson v Woolworths Ltd (T/as Woolworths Plus Petrol Werrington) [2005] NSWCCA 426; (2005) 64 NSWLR 612
R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82
Director of Public Prosecutions (NSW) v AM [2006] NSWSC 348; (2006) 161 A Crim R 219
R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169
R (Cth) v Petroulias (No 8) [2007] NSWSC 82; (2007) 175 A Crim R 417
R v PJ [2006] ACTSC 37
R v Patsalis [No 3] [1999] NSWSC 718
R (Cth) v Baladjam and Ors (No 14) [2008] NSWSC 1438
R v Frangulis [2006] NSWCCA 363
Director of Public Prosecutions (Tas) v Cook [2006] TASSC 75; (2006) 166 A Crim R 234
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
1. Ms Brigitte Christine Bormann, the applicant, has applied for certain evidence to be excluded under ss 138 in conjunction with 139(2), or, alternatively, s 85 of the Evidence Act 1995 (Cth) (Evidence Act) from the trial she is to face for certain charges.
2. The evidence before me, which, of course, may or may not be led and admissible at the trial of the charges, enables me to make the following findings for the purposes of this application only.
3. I received on the application a good deal of information about Ms Bormann's life. She clearly had a very hard life from her birth in Salzgitter, Germany, during the Second World War, through the difficult aftermath of the war and three marriages, including a marriage of convenience and a violent and loveless second marriage. While much of her history naturally evokes considerable sympathy, it is only at best tangentially relevant to the application and so I shall not rehearse it here in full.
4. She arrived in Australia in 1960 aged 20 with a husband to whom she was married in name only. She came to Canberra in about 1965. Her second and third marriages were both to gamblers who were initially very kind to her but, in one case, later became violent and in the other put her under intense financial pressure.
5. Her third husband was injured at work, leaving him in a wheelchair and she had to become his carer for nearly nine years. As a result of his receipt of a Disability Support Pension, it appears she was eligible for receipt of a Wife's Pension. She left him in about November 1998 and, although receiving some money from the end of the marriage, applied to receive benefits through Centrelink.
6. Sometime later, she met the man who later became her current partner and he invited her to share his house. She did so some time in 2001. Initially, it was simply a tenancy arrangement; there was, Ms Bormann said, no intention to have a relationship with him at that time. Later, they entered into a relationship which appears to date from about 11 July 2001.
7. Ms Bormann was paid the Wife Pension from 18 July 1991 until 15 May 1997. On, or about 20 November 1998, after she left her third husband, her then lawyer applied on her behalf for a Widow Allowance and, on 23 November 1998, she began receiving payments and continued to do so until 26 July 2002 when she transferred to an Age Pension.
8. A Widow Allowance is available under Pt 2.8A of the Social Security Act 1991 (Cth) where a woman:
(b) was a member of a couple and since turning 40, her partner has died or she has separated from her partner or divorced her husband;
(d) satisfies the residency qualification (which, in the case of Ms Bormann would have been satisfied by both her ten year residency in Australia and her 26 week continuous residence immediately before lodging the claim);
9. Her application for transfer to the Age Pension was made by a form dated 14 June 2002. A copy was in evidence before me. Issued by Centrelink, the form was entitled "Income and Assets Review Transfer to the Age Pension". Ms Bormann completed some parts of it and her partner completed some parts of it.
10. The author of some other parts which were not completed by her was not, in the evidence before me, identified. They may have been completed by her partner. She signed it on 14 June 2002. The Pension was (as noted at [7] above) subsequently paid.
11. In early April 2008, Ms Bormann and her partner appear to have heard someone talking about being in trouble if there was an overpayment; she was concerned as she thought she may be being overpaid. Ms Bormann said "I had a feeling that we'd be in trouble". As a result, on or about 14 April 2008, Ms Bormann and her partner telephoned Centrelink to make an appointment about the matter. The note made on the Centrelink computer system was:
CUS has PTR & wants to adv living together and repayment of AGE received as have not informed of partnership
This seems to suggest that Ms Bormann had, in that call, made significant admissions even before the interview began.
12. On 17 April 2008 she and her partner then met Ms Wendy Blatchford, a Customer Service Advisor, at the Belconnen Office of Centrelink. It was odd that Ms Bormann, who lives close to and had previously attended the Woden Office of Centrelink, should choose on this occasion to attend the Belconnen Office.
13. Ms Blatchford said that Ms Bormann and her partner told her that they had made an appointment at the Belconnen Officer rather than "in Southside" because "they didn't want people to see them coming in and telling Centrelink about what had happened." There was no challenge to that statement, though when put to Ms Bormann in cross-examination, she denied that this was the reason but offered no other reason.
14. The details of the interview were not entirely clear to me. Centrally, I did not have a clear articulation of the admissions which it was suggested that Ms Bormann was alleged to have made.
15. The interview was conducted in English. Ms Bormann did not ask for an interpreter to be present either when making the appointment or during the interview and Ms Blatchford did not consider that Ms Bormann required an interpreter and felt that Ms Bormann "had no problem with getting the message across or understanding what [Ms Blatchford] was saying".
16. Ms Bormann had, since arriving in Australia, worked in jobs where she was required to communicate in English. Her partner spoke no German so, I assume, they conversed between themselves in English.
17. The interview lasted about an hour. Ms Blatchford did not make contemporaneous notes of the interview. She did put a summary on the Centrelink computer system and this is what she recorded:
Customer has attended office and advised that she has been partnered since 07/01 - is aware of a debt that will be raised - partner has been employed as well as receiving superannuation payments - have spoken with people in fraud etc to allay the fears of both parties - issued mod p and investment modules etc - have suggested they acquire the assistance of an independent person eg a solicitor - explained that it may take a long time to have the situation assessed and they have done the right thing by coming in voluntarily. Customer states that she thought that as her partner was not on a centrelink payment that we were not interested in him as her partner. Doc by wendy 306147.
18. Presumably, the statement that Ms Bormann "has been partnered since 07/01" would be an admission. The statement "is aware of a debt that will be raised" may also be an admission. That "partner has been employed as well as receiving superannuation payments" could well amount to an admission.
19. Ms Bormann acknowledged that she was present at the interview at Centrelink. She said "I let [her partner] talk because, you know, his English is much better than mine". Ms Blatchford said that Ms Bormann "occasionally" spoke directly to her and responded to questions asked of her. Ms Bormann, too, said that both she and her partner responded in the interview: "she asked me questions and he said, you know, he said something and I said something."
20. In her written statement, Ms Blatchford stated that at the beginning of the interview Ms Bormann's partner began to explain their relationship and Ms Blatchford asked Ms Bormann if she gave permission for her partner to speak on her behalf and she said "Yes". There was no different evidence from Ms Bormann about this, nor was Ms Blatchford challenged on it in cross-examination.
21. There was some later evidence. Subsequently, on 13 June 2008, Ms Bormann signed a letter which authorised her partner "to represent" her. I am not aware, however, of what, if any, admissions were made after that date. Ms Bormann said this was done so that her partner could "go ahead ... whatever had to be done with Centrelink". She did say that she did not understand that this gave him authority to make admissions on her behalf in relation to criminal prosecution but it was far from clear how that limitation was communicated to her partner and, if at all, to Centrelink. It is not clear how this is relevant to the interview, though the terms of the letter are consistent with the evidence of Ms Blatchford about Ms Bormann's authority to her partner.
22. I note, too, that Mr Marshall O'Brien, a clinical psychologist, whose report was admitted and to whose evidence I refer below (at [42] to [49]), stated in evidence:
She did inform me that when her partner told her that she needed to tell Centrelink that she had a partner, her evidence to me was that she then, or through him I believe - I believe he acted as her agent, from what she said to me, he went along and told them that. I knew that, that was part of what she told me.
23. It was clear that Ms Blatchford, as she acknowledged, gave no warning to Ms Bormann that any admissions that were made might be used in any prosecution against her.
24. During the interview, Ms Blatchford made a number of calls to other officers of Centrelink about the matter. There was some dispute about whether she spoke to the section that deals with "Fraud" in that agency. She certainly said that she tried to do so. At any rate, it seems completely unlikely that such a call would have been made until, at least, the matters referred to in [18] above had been mentioned in the interview.
25. Whether it was as a result of a call to "Fraud" or "Debt Recovery", it seems that Ms Blatchford then told Ms Bormann and her partner, as had been relayed to her, that because they had voluntarily attended and been honest about the situation, they may not be prosecuted. Ms Blatchford was insistent that she used the word "may" and did not assure Ms Bormann and her partner that they would certainly not be prosecuted.
26. This is consistent, in fact, with what Ms Bormann said, for, in examination in chief, she was asked and answered:
Right, now, I want you to think carefully about this, were you ever told by anyone in Centrelink that you would not be going to court if you paid back all the money? --- I think she mentioned something like that, probably not if it's all paid and things, probably will not, yes prosecute. That's what I believed.
27. Ms Blatchford was clear that she did not say there would not be a prosecution. She noted that she did not have the authority to make such a statement.
28. Ms Blatchford's position was a Customer Service Advisor. Included in her duties, she was to:
hold interviews with [customers] as well as sort of the usual answering of phones and attending to queries made by customers, etcetera.
it's my duty on [sic] my duty of care to ensure that customers don't feel bad about things, that customers get the right information so that they can take the right path to fix that.
30. Ms Blatchford also gave evidence that, in her role as a Customer Service Advisor, she had no power to arrest people, demand information from them, no role in the investigation of potential criminal offenders or in relation to the raising of overpayments within Centrelink. She said it was not part of her job to consider whether customers had committed criminal offences. She also stated, without challenge, that she never thought about whether there was sufficient evidence to establish that Ms Bormann had committed any criminal offence and did not, during the interview, form a belief that she had committed one.
31. The accounts given of the interview by Ms Blatchford and Ms Bormann did not substantially differ. Ms Bormann agreed that she had done some talking (see [19] above). Neither suggested that Ms Blatchford gave Ms Bormann a caution of any kind. There was some interpretative differences as to the precise words used about the question of prosecution.
32. In her evidence, Ms Blatchford did make some errors. For example, she denied at one stage that she had spoken to anyone in the Fraud section of Centrelink but her written record refers to "people in fraud etc". Mr F J Purnell SC, who appeared for Ms Bormann, said to Ms Blatchford in cross-examination that he did not suggest she was being dishonest and I accept that she was honestly doing her best to recall what was said some years before when, as she admitted, she sees an average of 30 to 40 customers a day. Ms Bormann's recollection was faulty at times, also.
33. So far as this application is concerned, I do not reject Ms Blatchford's evidence, though I treat it with some caution because of the circumstances under which it is given, as she herself acknowledged, but I find that she only said that there may, not will, be no prosecution if repayment is made.
34. As a result of the interview, Ms Bormann and her partner provided information to Centrelink and an amount of the overpayment was quantified and then paid. The information provided probably contained admissions and the repayment may be said to amount to an admission.
35. Afterwards, Ms Bormann was contacted by an investigator, it appears on 4 July 2008, and invited to an interview on 15 July 2008. I do not know if such an interview was conducted. The investigator did record what appears to have been her understanding of the situation. It reads:
all conversations have been with cus ptr, he is nom so thats ok, called cus back after talking with original cso on first contact the cso advised the cus and ptr that if they came to interview they would not have to go to court,
i called them back to make it more clear of what can happen and advise them to seek legal advice, he is going to do this and get back to me, if no contact by end of week i will give them a call to see if they wish to cancell (sic) interview or attend,
It is not a record made by Ms Blatchford so it is not an inconsistent statement, though it was some basis for challenging her recollection as she must have been the source of the report as to her conversation with Ms Bormann, though whether it is an accurate report of what Ms Blatchford said or not I cannot say.
36. I note that this is, in any event, not consistent with the other evidence. There is no reference to repayment, which was the alleged condition for the immunity from prosecution. Indeed, it refers to the attendance at an interview as the condition for immunity, a matter that no-one in evidence before me suggested was part of the discussion that Ms Bormann and her partner had with Ms Blatchford.
37. It seems to me, however, that if Ms Blatchford did say (which I do not find) or Ms Bormann understood that Ms Blatchford had said, that because Ms Bormann had attended voluntarily and if she repaid the excess she would (as opposed to might) not be prosecuted, this was said after all the relevant admissions had been made. This was, in fact, the evidence. There is no suggestion that Ms Blatchford knew before they arrived what Ms Bormann and her partner wanted to discuss; indeed all the evidence pointed the other way. The comment about prosecution could logically only have been made after the admissions which founded the issue of overpayment had been made. It seems from the notes of Ms Blatchford that it was likely to have been said after she had spoken to "people in fraud etc". I cannot accept that she would have spoken to them until she had details of the matter and these would have contained the admissions.
38. I find that Ms Blatchford did not say that upon repayment of the debt, Ms Bormann would certainly or definitely not be prosecuted, though she did raise that as a possibility. I am not clear how Ms Bormann understood that and I did not have any evidence from her partner.
39. Subsequently, Ms Bormann and her partner completed forms which disclosed her partner's financial affairs. Some parts of these forms were completed by Ms Bormann and some by her partner. The forms were accompanied by taxation and superannuation details for her partner. Amongst other things, they stated that the domestic relationship between the two had commenced from 11 July 2001.
40. These forms were completed at the request of Ms Blatchford because they were required to calculate the amount of the debt that the overpayment had created and for which repayment would be sought. They could well amount to admissions relevant to the prosecution.
41. Subsequently, the debt assessed by Centrelink was repaid by or on behalf of Ms Bormann.
42. As noted above (at [22]), evidence was also given by Mr Marshall O'Brien, a clinical psychologist. He is a Registered Psychologist in the ACT and NSW and has been in private practice since 1992. He has degrees in psychology.
43. A report of Mr O'Brien was tendered. I have to say that much of it appeared to be advocacy and it was not clear that some of the statements were or could reasonably be wholly or substantially based on Mr O'Brien's training, study or experience.
44. His testing showed that Ms Bormann had a reading age of 11 years and 6 months and word recognition up to the equivalent of a Year 10 student. On the National Adult Reading Test, she "performed at a level expected of a person of average intelligence".
45. He performed further tests because of Ms Bormann's failure to follow some of the test questionnaire instructions. She responded at maximum levels for Depression, Anxiety and Stress.
Ms Bormann suffers a psychological disorder leading to anxiety and the use of avoidance symptoms. PTSD is characterised by avoidance of stressful situations. When placed in a stressful situation a sufferer will respond with anxiety and act to terminate the experience as quickly as possible. In my opinion the evidence deduced from this assessment increases the credibility of Ms Bormann's statement that she had not understood the legal requirements of Centrelink to declare the relationship with her present partner. Furthermore, it is unlikely, in my opinion, given her mental condition, that Ms Bormann could have sustained the anxiety attendant on acting in such a criminal manner, over such a long period of time.
47. Ms S Baker-Goldsmith, who appeared for the prosecution, cross-examined Mr O'Brien, challenging his opinion because, inter alia, the tests he had used had been validated on persons that did not include people with the age and reading skills of Ms Bormann.
48. Mr O'Brien responded that the tests were not used by him as the primary source of his opinion but as a validation of his clinical judgement.
49. Mr O'Brien implied in his conclusion that Ms Bormann suffered from Post Traumatic Stress Disorder but he did not say so; this is clear from the excerpt above (at [46]). More fundamental is that there was nothing in Mr O'Brien's opinion to say that Ms Bormann was unable to comprehend what Ms Blatchford asked, what she answered or what her partner said.
50. As noted above (at [14]) the precise admissions alleged to have been made were not identified. No doubt, these included the fact that Ms Bormann had been in a relationship with her partner since July 2001, that she had not notified Centrelink about the details of her and her partner's financial affairs which were given at the interview and subsequently to Centrelink. Some of these statements were, or may have been, made by Ms Bormann's partner.
51. Statements made in the presence of an accused person will not necessarily be admissions unless accepted or adopted in some way: R v Christie [1914] AC 545 (at 554). Nevertheless, in the context of a particular conversation, a failure to respond can amount to acceptance or adoption: R v Alexander [1994] VicRp 58; [1994] 2 VR 249 (at 263). It seems to me that it would be open, in the circumstances, for a court to find that Ms Bormann did accept or adopt what her partner said to Ms Blatchford in this interview especially if it is to be accepted that Ms Blatchford specifically sought agreement from Ms Bormann that her partner had her permission to speak on her behalf. She also clearly must be taken to have accepted what was in the documents which she signed unless the information was added after her signature.
52. Sections 87 and 88 of the Evidence Act are relevant to the question of whether to admit what is said, or subsequently written, by Ms Bormann's partner. It makes admissible as admissions by a party admissions made by another person in certain circumstances.
53. Once that is decided, however, the matters of challenge appears to me still to arise and I respectfully agree with McDougall J in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [No 4] [2006] NSWSC 90 (at [28]) that the section does not exclude the operation of provisions such as s 135 or, in this case, ss 85 and 138 of the Evidence Act.
54. Mr Purnell SC complained in his written submissions that it was not easy to identify the admissions because there was no proper record of the interview. That, he submitted, is enough to justify exclusion in itself. Unfortunately, I do not believe this helps him.
55. The application is that of Ms Bormann. The application is made on the basis that the evidence was improperly obtained or, in the alternative, that admissions be excluded under s 85 of the Evidence Act. Thus, it is implicit in the application itself that there are admissions in the evidence. This certainly was the way in which the application was argued. As the moving party, it is then up to Ms Bormann to identify what she says are the admissions that were made and which should be excluded.
56. She could have argued for exclusion of the interview and the other material on other grounds, such as hearsay or under s 137 of the Evidence Act. She did not do so.
57. It is fair to say that the admissibility of the evidence of the interview probably depends largely on whether admissions were made. Thus, the prosecution has some obligation to address the identification of what is said to be the admissions that make the interview admissible.
58. In the absence of help in that regard from either party, I must do the best I can. I have identified what seems to me to be the admissions above (see [18] and [34]).
59. Section 87 provides a number of circumstances where a person's statement is admissible as an admission against another. These are:
(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or
(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority; or
(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.
60. It seems to me that neither (b) nor (c) apply. That leaves only (a). The evidence included:
At the beginning of the interview, [her partner] began to explain details of their relationship on behalf of Brigitte Bormann. At this stage, I asked Brigitte Bormann, if she gave permission for [her partner] to speak on her behalf. Brigitte Bormann said "yes",
(2) that in oral evidence, Ms Blatchford said that Ms Bormann did not respond to any statement made by her partner, that Ms Bormann did answer some questions and that her English was intelligible and she appeared to understand English;
(3) that in oral evidence Ms Bormann said that she "let [her partner] talk because ... his English is much better than mine";
(4) that in the document later submitted to Centrelink, some of the writing in it was hers and some was her partner's writing signed by both and filled in, on her oral evidence, by her partner on her behalf;
(5) that in her oral evidence Ms Bormann agreed that she lets her partner look after her finances on her behalf and at her request;
(6) that in oral evidence Ms Bormann stated that she and her partner had discussed going to Centrelink as they ultimately did; and
(7) the letters, though signed later, in which she gave her partner authority as her nominee in dealings with Centrelink.
61. On the basis of this evidence, I am satisfied (under s 88 of the Evidence Act) that it is reasonably open for the statements made by Ms Bormann's partner to be found as admissions, insofar as they were admissions, made by her.
62. There were two grounds under the Evidence Act on which exclusion of the interview with Ms Blatchford and subsequent material and, therefore, any admissions, are sought:
(a) s 85(2) - namely that the admission was made in circumstances which make it likely that the truth of the admission was adversely affected;
(b) s 138 - namely that evidence improperly obtained or obtained in contravention of an Australian law or in consequence of such impropriety or contravention is inadmissible;
63. Section 138(2) provides that admissions obtained by coercion or deception are considered to have been obtained improperly. Similarly, s 139(2) provides for certain standards to be observed by "investigating officials" namely police officers or persons who are appointed by or under an Australian law whose functions include functions in respect of the prevention or investigation of offences.
64. The party seeking to exclude evidence under a provision such as s 138 of the Evidence Act bears the onus of proving on the balance of probabilities (s 142 of the Evidence Act) that the conditions for its inadmissibility are made out. Only then does the party seeking to rely on the evidence have to show that the desirability of admitting it outweighs its undesirability. See Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 83 ALJR 494 (at 500 [28]); R v Coulstock (1998) 99 A Crim R 143 (at 147).
65. It would appear that the same approach should be taken to s 85 of the Evidence Act. See R v Esposito (1998) 45 NSWLR 442 (at 459).
66. I am satisfied from the evidence of Ms Blatchford that she is not an investigating official within the meaning of the Evidence Act. She was, as she said in evidence, a Customer Service Advisor with duties to hold interviews with people who arrive at her Centrelink office and attend to their queries. She had not given evidence in relation to Centrelink prosecutions and had not had training about taking statements for a prosecution purpose.
67. There was no evidence to suggest that Ms Blatchford was appointed at law with functions in respect of the prevention or investigation of offences. Nor was there any suggestion that Ms Bormann was under arrest. It does not seem to me, either, that Ms Blatchford was an agent of an investigating official such as to bring these provisions into play: Pavitt [2007] NSWCCA 88; (2007) 169 A Crim R 452 (at 487-8 [70]).
68. I am satisfied that, despite the subsequent provision by her of a statement which was used in the prosecution, she is not an investigating official: R v Truong (1996) 86 A Crim R 188. It is also likely that the interview was not questioning within the meaning of the Evidence Act: R v Naa [2009] NSWSC 851; (2009) 197 A Crim R 192 (at 216-7 [98]-[99]).
Section 85 Exclusion
69. Section 85 of the Evidence Act was also relied on by Mr Purnell SC. That section renders evidence of admissions inadmissible unless the circumstances of its making are such that it is unlikely that its truth is adversely affected.
70. The section, however, only applies to questions by or in the presence of an investigating official or as a result of an act of a person who was (and the accused knew or reasonably believed to be) capable of influencing the decision whether a prosecution should be brought or continued.
71. I have already held (at [66]) that Ms Blatchford was not an investigating official. There was no evidence that Ms Blatchford had any capacity to influence a prosecution decision. She denied that she had any role in the investigation of potential criminal offences on this offence. Neither counsel asked her whether she could influence prosecution decisions. In addition, I took from her evidence a clear indication that she had no such influence. See also R v Truong.
72. I am satisfied that s 85 of the Evidence Act has no relevance to the evidence of Ms Blatchford or to the evidence obtained as a result of Ms Bormann's interview with her.
Section 138 Exclusion
73. Finally, s 138 of the Evidence Act, provides for the exclusion of evidence which was obtained improperly or in contravention of an Australian law. This does not necessarily rely on the matters raised in ss 85 or 139(2) of the Evidence Act. There was no contravention of Australian law suggested that was in any way relevant in this case.
74. Here, a number of matters were suggested by Mr Purnell SC that amounted to an impropriety which would exclude the evidence and any evidence obtained in consequence of any impropriety.
(1) the lack of a caution administered to Ms Bormann and her partner;
(2) the lack of a proper record of the interview (especially in the "I said/she said" form);
(3) the assertion that if the debt was repaid there would be no prosecution;
(5) that no opportunity was given for Ms Bormann and her partner to obtain legal advice;
(6) whether the words used, Ms Bormann believed as a result of the interview that there would be no prosecution and yet there was; and
(7) there was no warning of any kind about the use to which the statement made to Ms Blatchford might be put.
76. The first thing to say about these criticisms is that they seem to proceed on the basis that Ms Blatchford is in the position of an investigating official, like a police officer. As noted above (at [61] and [71]) Ms Blatchford is not in that position and so the rules applicable to such a person, such as set out in Pt 3C of the Crimes Act 1914 (Cth) (Commonwealth Crimes Act), do not apply. That approach cannot be maintained.
77. Ms Blatchford's evidence was that her duties were to "hold interviews with [customers of Centrelink] as well as sort of the usual answering of phones and attending to queries made by customers, etc". The title of her position, Customer Service Advisor, seems apt. She expressly said that she had never given evidence in Centrelink prosecutions, nor had training in preparing statements for prosecution. She denied being involved with the investigation in connection with the prosecution.
78. In my view, she was not bound to apply the usual procedures relevant to an investigator or police officer and failure to do so did not amount to an impropriety.
79. As noted above (at [64]), the applicant accused, Ms Bormann, bears the onus of establishing that there was a relevant impropriety before an onus is cast on the prosecution to persuade the court that the evidence should nevertheless be admitted.
80. The notion of impropriety has been the subject of some judicial comment. In Parker v Comptroller-General of Customs, French CJ said (at 501 [29]):
The meanings to be accorded to the terms "improperly", "impropriety" and "contravention" in s 138 were not illuminated by the Law Reform Commission report. The relevant ordinary meanings of "improper" include "not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong". "Contravention" refers to "[t]he action of contravening or going counter to; violation, infringement, transgression". (Footnotes omitted)
No other member of the Court in that case addressed the issue.
81. His Honour held that issuing invalid notices, for which there was no power to issue them, would amount to an impropriety, a position followed by White J in Australian Securities and Investments Commission v Sigalla (No 2) [2010] NSWSC 792; (2010) 240 FLR 327 (at [112]).
82. Cases which consider the meaning of "improper" frequently refer to two statements. The first is that of Basten JA (Barr J agreed) in Robinson v Woolworths Ltd (T/as Woolworths Plus Petrol Werrington) [2005] NSWCCA 426; (2005) 64 NSWLR 612 where his Honour said (at 618-9 [23]):
It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement". Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be "quite inconsistent with" or "clearly inconsistent with" those standards. Thirdly, the concepts of "harassment" and "manipulation" suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases the joint judgment in Ridgeway (at 39) referred to offences being procured or induced.
The third category does not appear relevant to this matter. His Honour went on to say (at 622-3 [36]-[37]):
In circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct will not be sufficient to demonstrate impropriety.
Before leaving these broad principles, it is necessary to note the indeterminacy of the test identified by reference to inconsistency with "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement": Ridgeway (at 36). Such a test invites assertion and counter-assertion, with no objective touchstone to assist in deciding which to accept and which to reject. It is at least doubtful whether a majority of the Australian community would have shared the High Court's view of the "entrapment" of Mr Ridgeway: see for example, the comments of McHugh J (at 85). The answer is not necessarily to eschew the task, but to establish, in advance, standards of conduct against which a claim of impropriety can be assessed. Where no relevant pre-existing standard has been breached, it should be a rare case in which impropriety would lead to exclusion. (Of course, standards may themselves require scrutiny, but no relevant standard was identified in the present case.) And the test of such a case must involve judicial appraisal of all potentially relevant public policy considerations, being the task actually undertaken in Ridgeway. Appeals to "community standards" will tend to substitute subjective reactions for careful analysis, albeit of ill-defined concepts.
83. The second is what fell from Howie J in R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82 (at 8 [20]):
I am of the view that, otherwise than when s 138(2) or s 139 apply, the court should determine whether the section is engaged having regard to the particular facts and circumstances before it, but with due regard to the seriousness of a finding that evidence was obtained improperly or as a consequence of an impropriety and the outcome of such a finding. Not every defect, inadequacy, or failing in an investigation should result in a finding that the section applies merely because it may be considered that, as a result of those defects, inadequacies or failings, the investigation was not properly conducted or that the police did not act properly in a particular respect. On the other hand, the terms of s 138(3)(e), which subsection requires the court to take into account whether the "impropriety or contravention was deliberate or reckless", make it clear that the conduct need not necessarily be wilful or committed in bad faith or as an abuse of power.
84. Hall J in Director of Public Prosecutions (NSW) v AM [2006] NSWSC 348; (2006) 161 A Crim R 219 followed the decision of Howie J in R v Cornwell, holding (at 228 [37]-[38]):
His Honour further added (at 230 [45]-[47]):
... in circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct will not be sufficient to demonstrate impropriety.
85. What is also relevant is that the impropriety must cause the obtaining of the impugned evidence and the applicant accused bears the onus of showing that: R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169 (at 186 [86]), R v Cornwell (at 89 [25]), R (Cth) v Petroulias (No 8) [2007] NSWSC 82; (2007) 175 A Crim R 417 (at 425 [25]).
86. The approach of Howie J has also been followed in this jurisdiction. See R v PJ [2006] ACTSC 37 (at [5]).
87. It appears then that the following approach should be taken:
i. Evidence will be improperly obtained if it has been obtained in a way that does not accord with the minimum standards of behaviour in the conduct of investigations that our community expects from those who are entrusted with the enforcement of the law. This requires an accurate, rule-based, regular, reasoned approach to the gathering of evidence without entrapment, unfair inducement, misstatement, harassment, manipulation and the like, but is not limited to these departures from proper investigative processes.
ii. The standards are not limited to an application of the relevant legal rules but must be consistent with the respect for fairness that the circumstances of the case requires.
iii. The impropriety need not be wilful, deliberate or reckless, an exercise in bad faith, an abuse of power or even consciously recognised as improper by the person concerned, though, these may be relevant to a consideration of whether the conduct was improper.
iv. Not every defect, inadequacy, failing or even inappropriate conduct will justify the appellation improper, especially if minor, unless it is clearly inconsistent with the minimum standards expected of a fair investigation process because the seriousness of the finding that evidence was improperly obtained must be recognised and taken into account.
v. The impropriety must have caused the impugned evidence to have been given or discovered and must be such that the community would regard the fairness of a conviction obtained using the impugned evidence to be undermined and engender a real sense of injustice in the result, leading to the community's confidence in the courts being eroded where they are seen to condone serious improprieties by law enforcement officers or their agents.
88. It seems to me that, even if Ms Blatchford knew the purpose for which Ms Bormann and her partner were coming to see her, for example by having read the computer record account of Ms Bormann's conversation of 14 April 2008 (see [11] above), and there was no evidence of this, she would not be expected to have administered a caution to her. Ms Bormann was clearly intending to explain her position and it seems that she did so, either by herself or her partner first in the telephone call and then at the beginning of the interview. It seems to me that the whole purpose of Ms Bormann's attendance was to explain the possible (and, ultimately, actual) irregularities of her position.
89. That there may have been ways in which Ms Bormann may have achieved her objective without putting herself in jeopardy of prosecution is not to the point. It also seems to me that it is expecting too high a standard to expect every Customer Service Advisor of Centrelink to be trained such that if what may turn out to be an admission of a breach of the relevant legislation is made, they should be ready to caution the maker of the admission.
90. Not every possible giving of prejudicial evidence requires the recipient, even if a police officer, to be given a caution: R v Patsalis [No 3] [1999] NSWSC 718 (at [12]-[13]).
91. It seems to me that the circumstances here have some limited similarity to the situation confronting Whealy J in R (Cth) v Baladjam and Ors (No 14) [2008] NSWSC 1438 for what Ms Blatchford was doing was providing the advice that she was asked to provide quite independently of any prosecutorial or investigative process.
92. Indeed, it is clear from R v Frangulis [2006] NSWCCA 363 that a failure to provide a caution where questioning is undertaken by an insurance investigator acting in co-operation with the police does not necessarily render the admission of the interview and any admission in it unfair.
93. In my view, the failure to give a caution in this case was not an impropriety.
94. The fact that the interview was not recorded in the way that official police questioning is recorded (for example, under s 23V of the Commonwealth Crimes Act) does not seem to me to render it inadmissible.
95. Firstly, Pt 1C of the Commonwealth Crimes Act does not apply for Ms Blatchford was not an "investigating official" within the meaning of that part. She was not a police officer and had no powers of arrest.
96. Secondly, a record of an admission in the way suggested has never been a precondition of admissibility. For recent examples, see Director of Public Prosecutions (Tas) v Cook [2006] TASSC 75; (2006) 166 A Crim R 234; Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216.
97. I have already dealt with the issue of whether there was an inducement by way of assertion by Ms Blatchford that if the debt which resulted from the overpayment caused by Ms Bormann's failure to declare her personal and financial circumstances there would be no prosecution, see [33] above.
98. Whatever Ms Bormann and her partner may have believed as a result of the interview with Ms Blatchford, there was no impropriety in what Ms Blatchford said or did.
99. I reject the submission that failure to provide an interpreter was an impropriety. I heard Ms Bormann give evidence and be cross-examined. She did not ask for an interpreter either before the interview with Ms Blatchford or before giving evidence before me. She was accompanied to the interview by her partner with whom she lived and conversed in English. I do not consider any impropriety resulted from the absence of an interpreter at the interview.
100. Section 23N of the Commonwealth Crimes Act is not engaged.
101. As to the question of legal advice, Ms Blatchford said in her statement that she had suggested to Ms Bormann and her partner that they seek legal advice. It was never suggested in cross-examination that this did not occur.
102. There was no failure to recommend that Ms Bormann seek legal advice. There was no impropriety. Even if it had not been suggested, I am far from satisfied that this would not have amount to an impropriety. There is no substance in this complaint.
103. The other complaints have really been subsumed in the matters with which I have already dealt above.
104. Accordingly, there is no basis for exclusion of the evidence of the interview between Ms Blatchford and Ms Bormann and her partner.
105. The circumstances of this case are such that attention should clearly be given to whether it is in the public interest to prosecute Ms Bormann. That decision is, of course, not one that I can - nor should - make. It reposes with the Commonwealth Director of Public Prosecutions.
106. Paragraphs 2.9 and 2.10 of the Commonwealth Director's Prosecution Policy of the Commonwealth advert to the need to consider whether it is in the public interest to prosecute offences and some of the factors that are relevant to that decision.
107. In this case, the approach of Ms Bormann in voluntarily attending on Centrelink and advising of her concerns and, without demur, paying the overpayment amount all prior to the commencement of prosecution proceedings seem to me to be highly relevant matters, together with her personal circumstances.
108. The evidence of Mr O'Brien, imperfect though it is, and Ms Bormann's sad background and limited comprehension of written English will be helpful in assessing Ms Bormann's explanation for her initial failure to inform Centrelink of the circumstances of her partner and whether her failures were intended to defraud Centrelink.
109. In addition, careful attention should be paid to the evidence given by Ms Bormann as to the application to decide whether Ms Bormann had a fraudulent intention or whether she made a genuine mistake.
110. I have no doubt that the Commonwealth Director will consider these matters carefully.
111. Nevertheless, there is no basis as argued for the evidence of admissions made by Ms Bormann directly or through her partner to be excluded from the trial and the application is dismissed.
I certify that the preceding one-hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Refshauge J.
Solicitor for the respondent: Commonwealth Director of Public Prosecutions
R
Bormann [2010] ACTSC 145
(2009) 83 ALJR 494
(1998) 45 NSWLR 442
(2010) 240 FLR 327
(2005) 64 NSWLR 612
(2003) 57 NSWLR 82
(2004) 218 CLR 216
(2000) 78 SASR 85
Application to exclude evidence dismissed; interview evidence and admissions (including partner's statements attributed to the accused under ss 87-88) are admissible at trial (paras 111, 61, 104).