Analysis
95In the final remarks extracted above from the judgment, Graham ADCJ was referring to the decision of this Court in R v Pavitt [2007] NSWCCA 88; 69 A Crim R 452 and two Canadian decisions, R v Hebert [1990] 2 SCR 151 and R v Broyles [1991] 3 SCR 595. The notion of "an agent of the state" appears to have originated in Broyles, in a case the circumstances of which were not dissimilar to the present. The notion of "eliciting behaviour" appears to have originated in Hebert, a case in which a suspect who had indicated that he did not wish to make a statement to police was placed in a prison cell with an undercover police officer to whom he made incriminating statements.
96In order to understand the significance of the manner in which Graham ADCJ's findings of fact were expressed, it is necessary to understand the origin of some of those expressions and the concepts to which they apply. I begin with the two decisions of the Supreme Court of Canada. These decisions are important, because they secured the endorsement of the High Court in Swaffield and Pavic (see below). Each concerned s 7 of the Canadian Charter of Rights and Freedoms, which is in the following terms:
"7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
97In Hebert, the accused was charged with robbery. He was arrested and advised of his right to retain and instruct counsel. While in custody he contacted, and obtained advice from, counsel. He was then cautioned [presumably as to his right to silence] and indicated that he did not wish to make a statement. He was then placed in a cell with a police officer, disguised in plain clothes, posing as a suspect under arrest. The police officer engaged the accused in conversation, during which the accused made incriminating statements, implicating himself in the robbery with which he was charged.
98The trial judge declined to admit the evidence, as a consequence of which the accused was acquitted. The Crown successfully appealed, and a new trial was ordered. The accused appealed to the Supreme Court.
99The principal question considered by the Supreme Court was whether the manner in which the evidence was obtained:
"... violated the accused's right to the principles of fundamental justice".
The particular principle of fundamental justice under consideration was the right of a detained person to silence. McLachlin J (with whose reasons six other members of the Court agreed) held that the scope of that right must be based on the fundamental right of suspects to choose whether to speak to the authorities or to remain silent. That choice had to be a "meaningful" one; rejection of such evidence was permissible where it had been obtained unfairly in circumstances that violated that right of a choice.
100In the circumstances of that case, McLachlin J held that the accused's rights had been violated and the evidence ought not to be admitted.
101It was in the course of providing the rationale for that conclusion that McLachlin J developed the concept of "eliciting behaviour". In that respect, she said:
"133 ... a distinction must be made between the use of undercover agents to observe the suspect, and the use of undercover agents to actively elicit information in violation of the suspect's choice to remain silent. When the police use subterfuge to interrogate an accused after he has advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect's constitutional right to silence: the suspect's rights are breached because he has been deprived of his choice. However, in the absence of eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police."
102A similar issue arose a year later in Broyles. The accused, a 16 year old, was charged with the murder of his grandmother. At the time of the charge the evidence against him was circumstantial. Several days prior to the accused being charged with murder, he was charged with fraud offences. He asked to call a lawyer, but appears to have been unsuccessful in making contact with one. He was then cautioned by a police officer and questioned. The evidence of the police officer was that at that time the accused was not a suspect in a homicide. Later, he was a suspect, but police had insufficient evidence to charge him.
103Police recruited a friend of the accused to visit him while in custody. The friend was fitted with a listening device. The accused did not admit to killing his grandmother, but made a damaging statement, to the effect that he had known that his grandmother was dead from a time when she was missing and before her body was found.
104The evidence was admitted in the trial and the accused was convicted. He appealed to the Supreme Court. The judgment of the Supreme Court was delivered by Iacobucci J. Iacobucci J referred to Hebert, and said:
"25 It is clear from Hebert that the right to silence is triggered when the accused is subjected to the coercive powers of the state through his or her detention. The question of what right to silence, if any, remains after a detainee is released is a question not raised by the facts of this case."
105It was then that the notion of "state agent" appeared. Iacobucci J went on to say:
"27 It is clear from Hebert, supra, that the purpose of the right to silence is to prevent the use of state power to subvert the right of an accused to choose whether or not to speak to the authorities. Where the informer who allegedly acted to subvert the right to silence of the accused is not obviously a state agent, the analysis will necessarily focus not only on the relationship between the informer and the accused, but also on the relationship between the informer and the state. The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required. First, as a threshold question, was the evidence obtained by an agent of the state? Second, was the evidence elicited? Only if the answer to both questions is in the affirmative will there be a violation of the right to silence in s 7.
(a) The Threshold Question
28 In every case where the right to silence is raised, the threshold question will be: was the person who allegedly subverted the right to silence an agent of the state? In answering this question one should remember that the purpose of the right to silence is to limit the use of the coercive power of the state to force an individual to incriminate himself or herself; it is not to prevent individuals from incriminating themselves per se. Accordingly, if the person to whom the impugned remarks is made is not an agent of the state, there will be no violation of the right to silence." (italics added)
Iacobucci J went on to consider what constituted the recipient of confessional material "an agent of the state". He said:
"29 In some cases, it will be clear that the person to whom the statements were made was an agent of the state. For example, if the statements were made to a police officer or to a prison official, whether in uniform or in plainclothes, there could be no question that the statements were made to an agent of the state. In other cases, it will be less clear. Where the statements are made to an informer, as in the case at bar, it may be arguable whether or not the coercive power of the state was brought to bear on the suspect in obtaining the statement from him or her.
In determining whether or not the informer is a state agent, it is appropriate to focus on the effect of the relationship between the informer and the authorities on the particular exchange or contact with the accused. A relationship between the informer and the state is relevant for the purposes of s 7 only if it affects the circumstances surrounding the making of the impugned statement ... Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange. I would accordingly adopt the following simple test: would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?" (italics added)
106He then went on to consider the concept of "elicitation" which he found difficult precisely to define, but identified a number of factors that influence the determination. He concluded the relevant question to be:
"37 ... considering all the circumstances of the exchange between the accused and the state agent, is there a causal link between the conduct of the state agent and the making of the statement by the accused?" (italics added)
107He then isolated two groups of relevant factors. The first, he held:
"38 ... concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation." (italics added)
The second set of factors, he held:
"39 ... concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?" (italics added)
Iacobucci J also considered that evidence of the instructions given to the state agent for the conduct of the conversation may be important.
108Taking into account all of those factors, Iacobucci J concluded that the friend was acting as a state agent, and did elicit the statements from the accused such that statements made by him were made in violation of his rights under s 7 of the Charter to choose to remain silent.
109As I have noted above, the Canadian cases are important because they were both referred to, with apparent approval, by various members of the High Court in Swaffield and Pavic. I shall state the facts in each of those cases as briefly as possible. Swaffield was a case under the Queensland Criminal Code. Swaffield was suspected of various offences, of which the most serious was arson. He declined to be interviewed. He was charged, but no evidence was offered and he was discharged. He remained a suspect. An undercover operation took place during which an undercover police officer engaged him in conversation. During the course of that conversation Swaffield made admissions of his involvement in the fire which had given rise to the charge of arson.
110On his trial, the evidence was admitted, and Swaffield was convicted. The Court of Appeal (Qld) allowed the appeal and ordered an acquittal. The Crown appealed to the High Court.
111Pavic was a Victorian case. Pavic was suspected of murder. He was taken into custody for questioning but declined to answer questions. He was released.
112Police then took a statement from a close friend of Pavic, which they considered provided them with enough evidence to charge him. They suggested that the friend, on behalf of police, speak with Pavic, while carrying a recording device. The friend did so and Pavic made admissions. The evidence was admitted, it played a substantial part in the Crown case, and Pavic was convicted. The appeal to the Court of Appeal was dismissed. Pavic further appealed to the High Court.
113In a joint judgment, Toohey, Gaudron and Gummow JJ noted that, historically, the approach of Australian courts had not been, as was the case in the Canadian cases, to address the issues by reference to the informed choice of the suspected person to speak. However, their Honours added:
"91 ... it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations."
They then said:
"97 What if a test is applied by reference to Swaffield's right to choose whether or not to speak to the police? The application of such a test turns, at least so far as the Canadian authorities are concerned, on the extent to which any admission was elicited. It is clear from Hebert that the Canadian Supreme Court regards the use of a subterfuge to obtain a statement as likely to be in violation of the choice whether or not to speak but even then would treat a quite unelicited admission as not calling for the exercise of the discretion to exclude."
114Their Honours held, as did Brennan CJ in a separate judgment, that Swaffield's admissions were elicited by the undercover police officer in clear breach of his right to choose whether or not to speak. They accordingly dismissed the Crown's appeal.
115Although the principles in relation to Pavic were not different, the result was - the evidence against Pavic was held to be admissible, and his appeal was dismissed.
116Kirby J, who dissented in the result with respect to Pavic, also adopted the approach taken by the Canadian Supreme Court (para [155]). He said:
"155 The test propounded is consistent with the general approach which our law has taken towards deception by law enforcement officials. Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest ... There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority ... The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent. Or it will be crossed where police have exploited any special characteristics of the relationship between the suspect and their agent so as to extract a statement which would not otherwise have been made." (italics added)
117Pavitt was another case in which allegations of sexual offences were made, and in which, at the instigation of police, the complainant telephoned the offender for the specific purpose of engaging him in conversation in which it was hoped that he would make admissions. The conversation was, as in the present case, recorded pursuant to a warrant issued under the Surveillance Devices Act. McColl JA and Latham J, in a joint judgment, examined and analysed in detail the relevant authorities.
118Their Honours, after extensive consideration, reduced the relevant propositions to nine, which they set out as follows:
"70 ...
(a) The underlying consideration in the admissibility of covertly recorded conversations is to look at the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned ...
(b) If that freedom is impugned, the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted ...
(c) Even if there is no unfairness the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards ...
(d) The question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and/or improper include whether the accused had previously indicated that he/she refused to speak to the police;
(e) The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required:
(i) as a threshold question, was the evidence obtained by an agent of the state?
(ii) was the evidence elicited?
(f) A person is a state agent if the exchange between the accused and the informer would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents ...
(g) Absent eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police ...
(h) Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the state agent for the conduct of the conversation may also be important ...
(i) The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful." (internal citations omitted)
These were the propositions to which Graham ADCJ referred in the closing paragraph of the extract from his judgment above. McColl JA and Latham J went on to say:
"71 We would add that views may differ about whether a complainant is a state agent, even if the conversation is recorded in circumstances facilitated by the police ... For our part we would not readily apply the label of state agent to a complainant speaking to a suspect who had not been charged, nor refused to speak to police. Rather we would look at the whole relationship as revealed by the participants' past history and what is revealed by the actual conversation. It may be relevant to consider whether the police scripted the conversation." (internal citation omitted)
119At [72] their Honours considered that conversations in such circumstances were more likely to be reliable as the suspect would have no occasion to boast or to "big note him or herself", and would be more likely to reject any false proposition put.
120While recognising that the conversation would "most probably" not have been recorded without the intervention of police, their Honours rejected the proposition that the complainant in that case was an agent of the State and went on to hold that, even if he were, he did not exploit any special characteristics of his relationship with the appellant. They did not consider that the conversation would, absent the intervention of police, have been materially different, noting that the appellant exhibited no unease in participating in the conversation and was relaxed throughout and was in a position to terminate the conversation at any time. There was no inequality in the conversation. They noted that, if anything, it was the complainant who appeared vulnerable, being in an increasingly emotional state during the conversation.
121They further rejected the notion that the conversation was "the functional equivalent of an interrogation", saying that the complainant had clearly formulated ideas of what he wanted to say to the appellant, and that the evidence did not support the proposition that police had scripted the complainant's part in the conversation.
122They concluded that the appellant had made the admissions voluntarily in circumstances which did not cast doubt upon their reliability. They concluded that the circumstances in which the conversation took place were not such as to lead to the conclusion that its admission into evidence, or a conviction obtained in reliance upon it, was bought at a price that was unacceptable having regard to contemporary community standards.
123The conclusions of their Honours are, of course, specific to the facts of the case that was before them. It is for this Court to apply the principles set out in paragraph 70 to the facts of the present case. However, the facts in Pavitt bore a close resemblance to the present case with the exception that in Pavitt the telephone conversation was very lengthy and contained more damaging admissions than the conversation in the present case. The decision in Pavitt is a useful guide in the application of the principles stated.
124Like McColl JA and Latham J in Pavitt, I am satisfied that, in the present case, the complainant was not "an agent of the State", and it was erroneous so to categorise her. The evidence of Detective Egan-Hurst was that he believed that there would, in any event, have been contact between the complainant and the respondent and that a conversation concerning the events of 18 May would have taken place. Given their personal and professional relationship, this was a correct assessment. It was inevitable that the respondent would reply to the complainant as he did in the telephone call. He had already communicated with her, by text message, to similar effect.
125The exchange was therefore not materially different from what it would have been had there been no intervention by police (see Broyles, para 30). The intervention of the police did not bring about the respondent's admissions: their intervention was limited to the timing of the conversation, and the fact that it was recorded, so that it could be used for evidentiary purposes.
126Applying the test stated in the last sentence of paragraph 30 of Broyles (would the exchange have taken place in the form and manner it did, but for the intervention of the state or its agent?), the complainant was not an agent of the state.
127Nor could it be said that the admission was "elicited". Again, applying the tests proposed in Broyles (paragraphs 37-40) the apology initially made by the respondent in the telephone conversation was made in response to the complainant's inquiry about why he had been attempting to contact her. At that stage, it could not be said that the complainant "actively [sought] out information such that the exchange could be characterised as an interrogation". Even the second apology in the conversation was made in response to the complainant pressing the respondent to explain why he had done what she asserts that he did. What that assertion was, was never spelled out. In no way could that be called "the functional equivalent of an interrogation".
128I am satisfied that the circumstances of the conversation did not amount to an unfair derogation of the respondent's right to exercise a free choice to speak or to be silent, and the finding that it was was erroneous. The respondent was able to terminate the conversation at any time. The complainant did not, prior to the respondent's first apology, make any direct or indirect accusations. She opened the conversation by asking the respondent why it was that he had been attempting to contact her. It was the respondent who introduced the subject of the events of the early morning of 18 May and apologised for them. It is also relevant to note that the apology he made in the conversation echoed the apology he had, in a completely unsolicited fashion, earlier made by text message.
129It was also erroneous to hold that the police were exploiting some special characteristic of the relationship between the respondent and the complainant. There was no relationship of trust (in the sense that that expression was used in paragraph 39 of Broyles) between the complainant and the respondent. The respondent was not obligated or vulnerable to the complainant; and the complainant did not manipulate the respondent to bring about a mental state in which he was more likely to talk.
130It was incorrect also to say that, while the conversation was not "scripted", the "key question" was conveyed to the complainant so that she was, in effect, asking what the police themselves would have wished to ask. All that Detective Egan-Hurst did was to suggest to the complainant a possible opening gambit, or introduction. That did not touch on the alleged offence at all - it was to ask why the respondent had been attempting to contact her.
131The evidence of Detective Egan-Hurst and the complainant shows that they had different understandings about the purpose of the call. Detective Egan-Hurst understood clearly that its purpose was to "capture" evidence in a permanent and objective form. The complainant understood that the purpose of the call was for her to obtain an explanation for the respondent's conduct.
132If the respondent's responses to the complainant are construed as admissions (as they are capable of being construed), they were not, within the meaning of s 90 of the Evidence Act, made in circumstances that rendered it unfair to use them in evidence. I am satisfied that the evidence ought not to have been excluded under s 90 of the Evidence Act.
Section 137
133Section 137 of the Evidence Act is in the following terms:
"137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
134The section requires two separate assessments and a judgment: first, an assessment of the probative value of the evidence sought to be adduced by the Crown, second, an assessment of the danger of unfair prejudice to the defendant (that might be caused by its admission), and, finally, a judgment as to whether any such danger outweighs the probative value of the evidence. If the result of the assessment process is that the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant, the court is obliged to exclude the evidence. There is a danger of unfair prejudice if there is a real risk that the jury will make improper use of the evidence: R v BD (1997) 94 A Crim R 131.
135The probative value that the Crown sought to assign to the evidence of the telephone conversation is to be found in the two distinct passages in which the respondent apologised to the complainant. The first of these was made in response to the complainant's query about why the respondent had been attempting to contact her by text messages, and was otherwise unprompted by anything she said. It amounted to a clear apology, a suggestion of misunderstanding on his part, and a wish to put the episode in the past. The second followed her asking what "compelled you to do something like that", accusing him of breaking her trust, denying that she had given "signals", reminding him of her prior rejection of his advances, and, finally, saying "... I don't know what part of no you don't get". It again amounted to a clear apology; even more importantly, it contained heavy overtones of admissions of sexual contact ("Your leg, my arm, your leg against my arm"); most importantly, it contained an acknowledgment that the complainant had been asleep at the time.
136In the District Court, the Crown's position was that these were unequivocal acknowledgments of criminal wrongdoing. If that were accepted, then it can hardly be gainsaid that the probative value of the evidence is high.
137However, the position adopted on behalf of the respondent was that his answers to the complainant were not so clear cut, and were capable of a different interpretation, or, as it was put, "competing inferences", and that this diminished the probative value of the evidence (counsel did not specify what the "competing inferences" were).
138In considering the probative value of the evidence, the judge said:
"However, there is a real possibility that there is an alternative explanation, inconsistent with the guilt of the [respondent], which, in my view, significantly affects the probative value of the material. That is, of course, even assuming that what was said does amount to an admission. I am prepared to accept, for the purpose of this ruling, that there is sufficient material to give rise to an available inference of the type I have outlined but, if that is the case, then there is, in my view, a real possibility of an alternative explanation ... that is, an alternative inference inconsistent with the prosecution case and objectively plausible ...
In considering the alternative explanation which may be available here, it is not, of course, the task of this court to determine which is the more probable or correct inference to be drawn, that contended for by the Crown or the alternative inference available in the context of this case. What is relevant is the availability or presence of an inference which is a competing inference ...
The alternative explanation is that what was said by the [respondent] is equally consistent with, or is at least plausibly consistent with, the [respondent] expressing a sense of guilt at having become involved in a consensual encounter in the aftermath of an evening of drinking and socialising, despite the relationship with the complainant previously having been one in which the complainant had drawn a line between their professional and social relationship, on the one hand, and any intimate relationship on the other. That possibility is enhanced (a) by the context of the conversations which had been had in the past between the complainant and the [respondent], referred to in her statement, (b) by the terms of the text message which had been sent on 30 May and, indeed, (c) what was said by the complainant at the bottom of page 2 of the transcript when, inter alia, she said 'I warned you before you know you were one of my closest friends'. That is an assertion which is consistent with the complainant's own statement that she had rejected any sexual advances on the part of the [respondent] and had insisted that they remain on friendly terms rather than on more intimate terms. If he had been 'warned' before, then that is an obvious explanation of the content of the warning.
The competing inferences, in other words, relate, on the one hand, to the possibility that the conduct of the [respondent] was criminal in the sense (in this instance) that there was a lack of consent or a knowledge of lack of consent, on the one hand, or of an acknowledgement of social or moral guilt, on the other. As adults, the conduct which is the subject of the charge here was not of itself illegal but obviously would be if the requirements of the criminal the law were met. However, even if not illegal, the conduct may have been regarded by one or both of the parties as unwise or as a source of subsequent regret on one or both sides. After all, there had been an apparently good working relationship and the conversation is at least plausibly consistent with disappointment that there had been some sexual encounter, which may have been perhaps a reluctant one but not necessarily one to which the complainant was not consenting or was one in which the [respondent] believed that she was consenting or had some grounds for believing that the encounter was consensual. After all, this was an event which occurred after a long night of celebration and where the parties had been socialising and drinking so that an apology, and even the accusation which was levelled about the breach of trust, would be consistent also with a consensual, but unwise and subsequently regretted, encounter between the [respondent] and the complainant.
In those circumstances, assuming that the material is otherwise admissible, for example assuming that what was said could amount to an admission of the type outlined by the Crown, the material is, in my view, almost intractably incapable of being dissected to determine whether the admissions could be reliably acted upon as admissions of criminality or aspects of criminality, on the one hand, or simply as admissions of moral or social impropriety, which could not be relevant to proof of the charge here. If the latter is an available inference, as I consider it is, then, while not falling into the same category as the situation of a person whose alternative explanation might involve admissions as a predilection for sexual encounters with high school teenagers, nonetheless there is a significant prejudicial effect where the alternative explanation itself reveals that there has been what could properly be regarded by the jury as, perhaps, the [respondent] taking advantage of a person with whom he was in a friendly and working relationship, to persuade that person to have a sexual encounter with him. That, in itself, would be prejudice of an unfair type. In other words, the application of s 137 of the Evidence Act would lead to a conclusion that the probative value of the alleged admissions here is weak, principally by reason of the existence of a plausible alternative explanation, whereas there is a significant danger of unfair prejudice to the [respondent]. While it is true that aspects of that explanation can be left to the jury with directions seeking to dispel any risk of that prejudice affecting the jury's deliberations, in my view there would be no direction which would be sufficient to dispel the risk that the jury might conflate the two types of guilt - criminal and moral guilt - and attribute to that conversation more weight than it would properly carry where the inferences are relatively finally balanced, the competing inference being a strong available and plausible alternative explanation for what was said in the course of the conversation." (italics added)
139What his Honour found, in that passage, reduced to its basics, was:
- the words spoken by the respondent in the conversation were capable of being construed as admissions or acknowledgments that he had sexual intercourse with the complainant without her consent (that is, of criminal misconduct);
- the words spoken by the respondent in the conversation were also capable of being construed as admissions or acknowledgments of some lesser form of sexual or moral impropriety, not amounting to criminal misconduct, but nevertheless blameworthy;
- the availability of competing inferences to be drawn from the words spoken by the respondent significantly diminished the probative value of the evidence;
- the fact that the alternative explanation of "moral or social impropriety" created a significant risk of unfair prejudice, in that the jury would be likely to "conflate" criminal and moral guilt, and attribute to the conversation more weight than it could properly carry;
- since the probative value of the evidence was weak (by reason of the availability of the competing inferences) it was outweighed by the danger of unfair prejudice.
140During the course of the passage extracted above, Graham ADCJ referred to, and purported to apply, the reasoning in R v XY [2013] NSWCCA 121 (with particular reference to the judgments of Hoeben CJ at CL and Blanch J), and DSJ v Director of Public Prosecutions (Cth); NS v Director of Public Prosecutions (Cth) [2012] NSWCCA 9; 215 A Crim R 349. It will be necessary to return to consider the principles for which these cases (and others) stand.
141From the extract above from the judgment, it can be seen that the essential reason for the rejection of the evidence was that his Honour perceived some significant ambiguity in what the respondent was recorded as saying. The ambiguity he perceived lay in the respondent's responses to the complainant - were they to be construed as admissions of guilt of criminal conduct, or could they properly be construed as acceptance of some kind of moral wrongdoing falling short of criminality? (This, no doubt, was the "competing inference" to which counsel somewhat obliquely referred.) The Crown contended for the former construction. His Honour considered that the possibility of an alternative explanation, that the respondent's apologies were prompted by a sense of non-criminal wrongdoing, was "enhanced" by (i) the evidence of the complainant's previous rejection of the respondent's advances; (ii) the terms of the respondent's text message (another apology) of 30 May; and (iii) that part of the conversation in which the complainant told the respondent that she had warned him before, and that he had been one of her closest friends.
142This, in his Honour's view, affected the probative value of the evidence, rendering it "weak". He perceived the potential prejudice to the respondent as lying in the competing explanation itself - in that, even though the competing explanation was not of criminal conduct, it was, nevertheless, of conduct that the jury might see as discreditable. He considered that, of itself, to be prejudice of an unfair type.
The competing positions of the parties on appeal
143I will encapsulate the positions of the parties briefly. On behalf of the Crown it was argued that: