R v DJL

R v DJL - [2024] NSWDC 165 - NSWDC 2024 case summary — Zoe

[4]

Nature of the alleged offences

Count 1 was the primary count of maintaining an unlawful sexual relationship with the complainant. The unlawful acts that the Crown relies upon to sustain the charges include (but are not limited to) the accused: * masturbating his penis in the complainant's presence; * directing the complainant to masturbate or touch his penis; * touching the complainant's vagina and breasts; * digitally penetrating the complainant's vagina; and * engaging in penile-vaginal intercourse with the complainant
Counts 2-4 (incl) were expressed to be alternatives to count 1. In relation to count 2, when the complainant was 9 or 10 years of age, the Crown case is that the accused, who had then conducted a massage business, gave the complainant a back massage and in the course of this, he used his fingers to touch and eventually penetrate her vagina. For this charge, the Crown expects the complainant to say that she pretended to be asleep. For this count, the Crown contends that there were other massages in which he digitally penetrated the complainant's vagina. In relation to count 3, when the complainant was 10 years of age, the Crown case is that in the complainant's presence, the accused masturbated until ejaculating into a cup; before pouring his ejaculate on to a glass slide and putting it under a microscope and making the complainant observe its movement.
Count 4 was another alleged instance of digital penetration during the administration of a massage.
Count 5 was an alleged incident of penile-vaginal intercourse. The Crown case is that this occurred after a time when the accused separated from the complainant's mother and occurred in a granny flat.
Counts 6-8 (incl) were said to relate to a single episode, at a time when, on the Crown case, the accused had entered into a separate relationship. The charges embracing different alleged sexual acts (digital penetration, cunnilingus and use of a vibrator in the complainant's vagina).
On 17 February 2024, on arraignment, the Accused pleaded not guilty to each count. The trial has recently been re-scheduled to commence in April 2025. I was informed by the parties that the trial will be by jury.
On 25 and 26 May 2020, the complainant had a number of telephone recorded conversations with the Accused. Those sound-recorded conversations were authorised by a surveillance device warrant issued by Cavanagh J of the Supreme Court. The validity of the warrant is not contested.
The Accused applies [1] for a pre-trial ruling that the recordings of those telephone conversations be excluded as inadmissible at the trial. He specifically relies upon ss 84, 90, 137 and 138 of the Evidence Act 1995 (NSW) (the 'Evidence Act').
Separately, and distinctly, the Crown seeks a pre-trial ruling which concerns the admissibility of sexual reputation evidence.

[10]

The briefing documents

There was evidence that before each of the sound recorded conversations between the complainant and the accused, Officer Whiteley had read out to and had the complainant sign, what was referred to as 'briefing documents'. These were in template form (they appear in VD Exhibit 2, Tab 10). It is pertinent to record some of the questions on that document; which were read out to and acknowledged (by a "Yes" answer immediately following each question and a signature at the rear of the document) by the complainant. Relevant questions (for the purposes of this application) were: "Q2: I need to inform you that as a result of the complaint, policed have obtained a Surveillance Device Warrant pursuant to the Surveillance Devices Act 2007 (NSW). This warrant authorises police to record any private conversation that you may have with [the accused's name being inserted here] (alleged suspect). …. Q7: I want you to clearly understand that anything you say to [Accused's name inserted] (alleged suspect) must not be influenced by any other person. Do you understand that? Q8: I want you to clearly understand that it is improper for any police officer to advise you what matters to discuss, or the content or nature of any conversation that you may have with [Accused's name inserted] (alleged suspect). Do you understand that? Q9: I want you to clearly understand that you may discuss any subject matter with Accused's name inserted] (alleged suspect) including the allegations which you have outlined in your statement. Do you understand that? Q10: I want you to clearly understand that any conversation that you may have with [Accused's name inserted] (alleged suspect) is not on behalf of any police officer. Do you understand that? Q11: I want you to clearly understand that [the Accused's name inserted] (alleged suspect) may choose not to engage in any conversation with you. Do you understand that?
I note, in relation to Q13, a diagonal line was crossed through the question and answer in each case. The question was in the following terms: "Although a recording will be made of any conversation that you may have with Accused's name inserted] (alleged suspect), no police officer will be present in the room during any such conversation (telephone interface operation only). Do you understand that?"

[13]

26 May 2020 (4:03 - 4:14pm)

This conversation was recorded with the complainant at Mount Druitt Police Station. It began with the accused explaining why he could not talk to the complainant the day before (he reiterated that he had a client with him in his car).
After that preliminary, there were no further pleasantries. The complainant got down to business; almost immediately asking the accused "why you did what you did to me?". This took the accused by surprise: he asked what she was talking about. Soon thereafter the complainant answered "Everything you did. Coming in my showers, making you touch, me touch you or you touching me. You having sex with me, you making me drink alcohol, you making look at your Penthouse magazine behind the bar. All of it." (T 6).
At that point, all that the accused would recall was that "we went to Louee". The complainant then asserted that she "was nine" (T 6).
Not long after, the complainant said she was "not coping" and needed to "know why you did it". The accused said he "didn't do anything". The complainant contradicted him: she asserted that he had "walked in on me .. a couple of times when I was in the shower". The accused denied this. The complainant continued to assert that he got "in my shower all the time" and the accused said that he did not remember; indeed "definitely" (did not remember) (T 8). The complainant was incredulous with this response and told the accused that he was "full of shit".
Shortly after the complainant stated that she was "not coping" at a time when it is clear that the accused was denying having done anything to her (T 8-9). The complainant was indicating that she had not been coping for nearly 20 years. This was why, he said, she needed to "know why". Again, the accused said he "didn't do anything" to her. He was about to say that "something happened" between himself and the complainant when she was 15 years of age (although he said that he had not instigated this). The connotation of this appears to be sexual. But the complainant interrupted him by saying that he was "a liar" and (again) "full of shit". She asserted that he had "used to do things all the time" when she was eight or nine years of age. The accused denied this and added that "as far as I'm concerned, nothing ever happened"; although shortly qualified that by saying that "something happened" when she was 15 years of age (T 9). It appeared that in the accused's mind this thing that happened was at Louee, at a time when the complainant got drunk: (T 10-11).
The complainant insinuated that things that happened when she was only nine years of age. She asserted that "all the time, used to show me the Penthouse Magazines behind the bar. He used to make me drink the Baileys shots." (T 10).
The complainant continued to press the accused because of her "need to know why", but at this point of their conversation, the accused said "I'm really sorry [then stating the complainant's first name], you feel this way about me. I know you don't like me". When the complainant asked him why he thought she did not like him, the accused's response was "I just thought it was because of things that happened between me and your mother… I thought you felt that I'd let you guys down.. by walking out on you." (T 11-12)
The complainant declared that the accused had "ruined (her) whole childhood". She offered the accused the opportunity to reflect and to resume their conversation tomorrow, to "see if you can remember then" (T 12). But the accused declared that he had "never done anything.. towards" the complainant (T 12). However, the accused brought up the topic of massages; seeming to imply that he had massaged the complainant; although he denied the complainant's assertion that he had put his fingers inside (by implication, her vagina) when administering a massage (T 12).
The complainant compared (adversely to the accused) her ability to remember against the accused's protestation of a lack of memory. She then challenged him about the time when he had a magnifying glass, had called her upstairs and made himself ejaculate, and made her look at it. It was apparent from the accused's answer that he did not recall this. But the complainant did not accept that response. That prompted the accused to say that he was "dumbfounded" whilst continuing to assert that he "didn't do anything " (T 13).
After some further argument, the complainant again offered the accused the opportunity for him to "think about and then try and remember it" (T 14). She emphasised the importance of this to her: she needed "closure" and to move on with her life. The accused then said "But if I.. Did do something like this, like fuck, I seriously can't remember. I must've been fuckin' off my head or something", which the accused appeared to quantify as "nearly a few times a week for … 5 or 6 years" (T 15).
The complainant challenged the accused's recollection ("Surely you can remember having sex with a child"), but the accused emphatically denied this (T 15). The complainant then argued with the accused and asserted that he had laid over the top of her on her mother's bed, "used to pull yourself off until you ejaculated on my stomach even". The accused denied that accusation (T 15).
The complainant then continued to press the accused for more disclosures. At this point, the accused slightly changed tack. He questioned the complainant as to why she needed "to know"? The complainant's response was effectively to assist her with her mental health and indicated that she had questioned her self-worth. That was why she demanded that he tell her "why (he) did it". But the accused's response was to deny that he done anything and to repeat that he felt dumbfounded (T 16).
The conversation then terminated with the complainant foreshadowing that she was going to call the accused back after giving him time "to think about" (T 16).

[14]

26 May 2020 (4:28 - 4:38pm)

The complainant remained at Mount Druitt police station when she had this conversation with the accused, only about 15 minutes after the termination of the previous conversation.
She commenced by her demand that the accused "just talk to me and tell me why". This time, it struck me, the accused was prepared, in the sense of expecting (and waiting for) the complainant to make further demands of him. He deflected the complainant's opening gambit, by saying "so I will ask you something … What is it you're wanting from me … What are you trying to do, are you setting me up somewhere so like, eh, eh, somebody on the other end of that line is gunna go, okay mate, we've got you, you go to gaol now?" To these questions, the complainant answered "No".
The accused was now thinking about the consequences to him of his answering her questions. He rhetorically asked her ".. does that help my family … Does that help my kids?".
Those questions prompted the complainant say to him "I've said nothing to nobody". The accused then asked her whether she was by herself or whether she was with somebody. The complainant answered that she was "by myself".
The accused apparently accepted these assurances, even though they were untrue; and even though the complainant knew that they were untrue. This is apparent from the circumstance that from now on until the rest of the conversation, he was more forthcoming, or at least responsive, to the complainant's questions. It is also apparent that since the termination of previous conversation (15 minutes before), the accused had been reflecting on what occurred. He said "I've got no idea. Like there was things that I can't even explain to this day.. And like it makes me feel sick and I know what, what you go, what you're going through. I can't imagine it. And I'm really, really, really sorry. Like I.. Don't know. I love you kids, like, and I think, ah, maybe I just took y e, your affection a bit too far. Like I'm, I'm devastated. I am sorry, trust me.." (T 19-20).
When the complainant interrupted him to say that the accused had "ruined my whole childhood", the accused said "I understand that, darling. I am, I really apologise.. I never ever wanted to hurt you ever. I loved you." The complainant then said that the accused "did hurt me" and the accused's response was "Yeah, I know" (T 20).
Shortly thereafter, the complainant indicated that the accused's lack of recollection was "hurting me even more". This prompted the accused to say that there were "some things that happened, yeah. I remember yes. Some things .." (T 20). The complainant asked him what those things were. The accused's response was: ".. I remember like when you said the things with the shower, yeah, I did come into the shower with you a couple of times. And I should never have done that." (T 20-21). The complainant then pressed for more, telling the accused to "be a man". The accused said "Yeah. I'd play with myself", a matter which he said "was wrong". He said that he "would touch myself a lot. And I should never have done that" (T 21).
The complainant then asked the accused "what about touching me, do you remember that?". The accused's answer was "Yeah, I did, I think" (T 21).
Later, the accused stated, more than once, that he had "never meant to hurt you" and that he had not "got words to even say how sorry I am" (T 22).
The accused began to feel sorry for himself. He said that "I feel like my life … is worthless now. Like I don't deserve to live.." The complainant pressed the accused for more information, but the accused said "I can't remember a lot of stuff" (T 23). The complainant set about trying to trigger that memory. She asked whether he remembered touching her vagina or was it just himself. The accused said he touched himself but appeared to hesitate that he agreed that he had touched her. The complainant reminded him that he had earlier said that he had, but the accused's response was "No, I can't remember". (T 23).
The complainant pressured the accused to "be a man and admit it". She compares herself to the accused: she has to live with (the memories) for the past 20 years and had said nothing to nobody (this last part being untrue). The accused then enquired of her how she was going to "get closure" from what he informed her and what was she wanting him to do (T 23-24). The complainant answered that she wanted him to admit what he had done. Again she compared herself favourably: she had not told anyone; not her friends nor her mother; but had kept what had happened to herself but could no longer do that (T 24).
The complainant pressed the accused further about what he remembered. But the accused again hesitated. He was now worrying about his family (a reference to the apparent consequences of disclosures of his memory) and he indicated his preference for the complainant just to "get on with your life" (T 25). To this, the complainant made the point that his disclosures would enable her to get on with her life in the sense that she would not have to "keep thinking about it anymore" (T 25-26). In response to that, the accused said "yeah, I, and I did touch you, yeah. Then we, I should never have done that when we had the massages. I should never have done that" (T 26).
The complainant then sought admissions about specific incidents: did the accused insert his fingers when he massaged her? Did he have sex with her on her mother's bed. But the accused said he did not remember these incidents (T 26). The complainant shortly thereafter asked him about the "slide thing". That is her allegation that he had "ejaculated into a cup and then imported onto the glass slide and said, look at this. And you made me look through the magnifying glass, like a telescope thing, into it. And then there was a light shining from the bottom of it because it was plugged into a wall and, eh, you said Quick, 'cause they won't, they won't stay alive for long. You made me look at your sperm swimming around on a glass slide". The accused's response was "Oh really? I'm sorry, Miss, um, [inserting the complainant's name], I don't remember that. I'm really sorry" and he said that he felt so bad (T 26).
The complainant then asked him whether he remembered how old she was. The accused indicated that he could not remember; that he did not really know (T 26-27). After he was further challenged by the complainant (about his memory of her age at the time of the events), he referred back to the complainant's earlier assertion that she was nine years of age. But the conversation tailed off, on the topic of her age. (T 27).
Instead, the complainant referred to her having pretended that she was asleep when, she asserted, he had done what he was doing as she was too scared to wake up; even though she was awake the whole time. She asserted that she was too scared to be awake. The accused apologised again (T 27).
The topic of her age at the time of events resurfaced. The accused said he did not know, but the complainant demanded that "he say it". The accused then said "nine or ten". (T 27-28). The accused agreed with the complainant that "it is disgusting" (T 28). The complainant challenged the sufficiency of the accused's apology. The accused then said that he was "not the same person anymore. I'm a different person. I feel disgusted in myself" (T 28).
The conversation terminated when the complainant indicated that she needed to go; and the accused apologised again (T 29).

[18]

DSC Hallcroft

DSC Hallcroft has been a police officer for 19 years. At material times, she assisted DSC Whiteley, who was the Officer in Charge (OIC). After a period of some leave, she returned to the investigation in February this year. Officer Hallcroft indicated that her dealings with the complainant occurred throughout 2020 and 2021. She first dealt with the complainant and Officer Whiteley in connection with the contentious pre-text calls.
In relation to the complainant's conversation with the accused on 20 May 2020 (VD Exhibit 9), Officer Hallcroft recalled one instance when she was present with Officer Whiteley and the complainant before the call was made. She recalled Officer Whiteley reading out a briefing document (VD Exhibit 2, Tab 10).
Officer Hallcroft said that on 20 May 2020, she did not discuss with the complainant what she should say during the recording. She recalled that the complainant conducted the conversation with the accused in the interviewing room in Mount Druitt police station.
Officer Hallcroft recognised her voice on the three sound recordings on 20 May 2020.
In relation to the sound recording on 25 May 2020 (VD Exhibit 10), Officer Hallcroft thought this occurred in the complainant's bedroom. The officer again recognised her voice. She recalled that the recording was taken on her personal mobile phone. When the complainant was not talking to the accused, the officer did not recall anything that Officer Whiteley said. The officer recalled that the complainant was sobbing and shaking. Officer Hallcroft did not recall what if anything occurred after this call on 25 May.
In relation to the complainant's calls on 26 May 2020, Officer Hallcroft recalled that there were three of these. These occurred in the interviewing room in Mount Druitt police station. The first (at about 4:00pm) was unsuccessful in the sense of achieving contact with the accused. As to the second (4:03 - 4:14pm), the officer recognised her voice and the complainant's voice. Officer Hallcroft believed she was there for the whole call. She heard herself asking the complainant "… the only thing really". Asked to describe the complainant's demeanour, Officer Hallcroft recalled that the complainant was crying. As to the third call (4:28pm), she did not recognise her voice in this call and indeed, had no recollection of it. She believed that she and Officer Whiteley were present in the interviewing room in the police station when the call occurred (this being a different room to where ERISP interviews occurred). More specifically, she believed she was in the corner whilst the complainant was sitting opposite Officer Whiteley (the latter being near a computer). Officer Hallcroft said that she did not see or her Officer Whiteley saying anything to the complainant about directions or instructions. The officer described the complainant's demeanour as such that she was "shaking" the whole time.
Officer Hallcroft said she did not recall any video recording of the complainant's phone conversations with the accused on any of 20 May, 25 May or 26 May. She further indicated that she had inquired into the existence of such recordings.
Officer Hallcroft said she could not recall subsequent attempts by the complainant to contact the accused. She did, however, recall attending the complainant's home on 16 June and could even identify herself on the video recording walking across the complainant's bedroom and into another part of the complainant's house. The officer had little recollection of what occurred on 22 and 23 June 2020
Features of this officer's cross-examination were the officer's: 1. acceptance that she took no notes or other record of what the complainant had said to her or Whiteley (or vice versa) (although she did indicate her belief that Whiteley had made some COPS entries of communications); 2. experience in 'pretext' investigative techniques; 3. indication that the briefing documents in evidence were a basic template; although officers had a degree of discretion in their use of them; 4. lack of recollection whether two devices (a listening device and video-recorded device) had been utilised on 25 and 26 May 2020; 5. agreement that she had a concern that the complainant might be using intemperate or emotionally charged evidence when speaking to the accused although she was not otherwise concerned that the complainant may have been influencing the accused's responses, was not allowing the accused to respond or interrogating the accused. In re-examination, she explained that she was unconcerned about the complainant using intemperate language with the accused because she (and inferentially Officer Whiteley) were not 'controlling the situation'; 6. denial about discussing, with Officer Whiteley, moderating the complainant's language with the accused; 7. did not recall discussions with the complainant about the objective of the conversations although she indicated that she would ordinarily tell complainants, in this context, that the purpose was to obtain admissions; 8. inability to recall anything that was said in the period between the two phone calls on 26 May 2020 (in which there had been dialogue between complainant and accused). In this period, she recalled that the complainant was very upset. She did not agree that it was inappropriate for the listening devices to be turned off in this period. In re-examination, she indicated that the focus was on the content of conversation between the complainant and the accused; lest there was a need to record everything said between police and a complainant. She denied having conversations along the lines that was appropriate to try to push the accused harder or that, through the use of emotionally charged language, accused might be about to crack; 9. said that the complainant had indicated that she knew what she wanted to say to the accused; that she herself did not ask what this was and did not suggest any 'dry run' with the complainant before she spoke to the accused; 10. absence of any de-briefing session, with Officer Whiteley and the complainant, after the complainant's conversation with the accused on 25 May. Officer Hallcroft was shown some documents (produced on subpoena) written by Officer Whiteley in which reference was made to a 'debriefing'. Officer Hallcroft said she thought that that could mean anything and whilst she accepted the possibility that a debriefing might have occurred with Officer Whiteley, she could not have imagined that this would have involved the complainant as there was nothing (at that point) to debrief; 11. disclaimer of any responsibility for the extent of production (3 documents) in answer to the subpoena; 12. inability to explain why, with respect to the three pages of notes that were produced (VD Exhibit 16), Officer Whiteley had referred to recorded conversations on 17 June (and not 16 June) and on 22 and 24 June; and why there were no video recordings of the complainant's conversations with the accused on 20, 25 or 26 May; 13. recollection that she did speak with Officer Whiteley about the 'sufficiency' of admissions made by the accused on 26 May; although Officer Hallcroft took no notes of the conversation (and could not say whether Officer Whiteley took notes). She did not recall speaking to a prosecutor on the subject of obtaining further admissions; 14. inability to explain why further calls were to occur on 16 June. Specifically, she did not recall any concerns about the circumstance that the earlier conversations between complainant and accused had only been sound recorded; 15. denial that either she or Officer Whitehall had been the object of disciplinary proceedings arising from the form (sound) of the earlier recordings. At this point, I asked Officer Hallcroft if there was any protocol of which she was aware that required conversations of this kind to be video recorded. Her response was that this would only represent 'best practice' and she indicated that such protocol as there was would usually be in the template form of the briefing documents; 16. response to the (implied) comparison between the nature and quality of the conversation that the complainant had with the accused and the type of interview that police would conduct with an accused. She accepted that in the latter, (interviewing) police would not engage in heckling or use intemperate language; that they would give the interviewee the opportunity to explain themselves before cutting off answers and would not lie to the person.

[19]

Evidence in witness statements

The Crown relied upon parts of two of the four witness statements that the complainant gave to police: her statements of 12 September 2022 (paragraphs 16-17 only) and 16 November 2023, both of which appear in VD Exhibit 2.
In the statement of 12 September 2022, the complainant indicated that whilst she really wanted to make the calls, it was a hard process and she felt really upset and emotional. She indicated that Officers Whiteley and Hallcroft were sometimes present when making the calls and other times they were not. Sometimes, she recalled, they had stayed with her to provide emotional support.
She stated that although the process was explained to her, she was not provided with any instructions or directions about the conversation(s) she was to have with the accused. She stated that she thought this was difficult because she would 'map out' the conversation she thought she needed to have with the accused in her head, but on some occasions he did not answer.
In this affidavit she responded to three points made by the accused in one of the 26 May 2022 phone calls, which are not necessary now to recite.
In the statement of 16 November 2023, the complainant went into greater detail as to what occurred on 20, 25 and 26 May 2020 with the pretext calls.
Amongst other things, the complainant: 1. recalled that before the 20 May 2020 call (which she stated was made from her home) she had asked DSC Whiteley whether there was anything specific that she needed to ask the accused and what she should do if he did not answer. She recalled that DSC Whiteley told her to 'just make the call and talk about how you're feeling'. She stated that neither DSC Whiteley or DSC Hallcroft gave her written or verbal instructions on what to say; although she did recall the former reading out the questions on the briefing document which she replied to and later signed the form. Further, she recalled that both officers left her bedroom after activating the recording; 2. recalled that before the 25 May 2020 call (which she stated also was made from her home), DSC Whiteley again read out questions from a briefing document, which she again signed. Again, she stated that neither DSC Whiteley nor DSC Hallcroft gave her instructions on what to ask the accused. Again, she recalled that both officers left her bedroom after activating the recording; 3. stated that she made her calls to the accused on 26 May 2020 from Mount Druitt Police Station. She made the calls on an office phone. Again, DSC Whiteley asked her the same questions from the briefing document which she responded to; and then signed the form. On this occasion, after setting up the calls, she asked the same two police officers to stay in the stay in the same room as her when she had the conversation. Specifically, she recalled them standing in the back corner and did not make any eye contact with her, nor any hand gestures and did not pass on any notes. She stated that neither DSC Whiteley nor DSC Hallcroft gave her instructions on what to say to the accused. She recalled that after the first of the phone calls, she was crying and angry. She further recalled that both officers tried to comfort her and said she 'did good' and 'was doing well'; 4. On the same day, DSC Whiteley suggested that they wait a few minutes before calling back again. In the 15 minute period of waiting, she was upset and crying and, she stated that in that time, neither officer provided her with any questions to ask. When she commenced her second call to the accused that day, they remained in the back corner of the room. As with the earlier call, neither of them whispered to her, passed any notes or made any hand gestures;

[20]

Evidence at the hearing

In her evidence in chief on the voir dire, the complainant confirmed that prior to each call Officer Whiteley had read the briefing documents. She said she did not recall receiving any instructions as to what she could or couldn't say to the accused. She recalled Officer Whiteley referring to the warrant as being 'part of the process' and explained that the point of warrant was to obtain admissions from the accused when she conveyed her concerns to Officer Whiteley (such as what she might say the accused did not answer), she recalled Officer Whiteley telling her to "say how you're feeling." She did not have a prepared script of what to ask him.
The complainant was taken through each of the sound recordings. She said that she believed that the first of the calls on 20 May 2020 were at home with both Officers Whiteley and Hallcroft present. She recalled that equipment had been installed in her bedroom and that the conversation she was about to have with the accused was taken on an iPhone. She was taken through each of the specific attempts to call the accused on 20 May, recognised the voices of herself and the two police officers and denied receiving any instruction from either officer as to what she should say to the accused. She further denied receiving any instruction or guidance as to what she should say in the period of time between each of the recordings. She recalled that prior to the calls, both officers stepped outside the room.
The complainant was then taken through on 25 May. She recalled that she was in her bedroom. She denied having received any instructions to what she should or should not say to the accused prior to the calls. Again, she recalled that the two officers stepped outside the room.
The complainant was then taken through attempted calls on 26 May 2020. She recalled Officer Whiteley reading her briefing document at Mount Druitt police station in the afternoon. This was in an interview room. She denied receiving any instructions as to what she should say or not say. She did not recall having any notes that she had prepared for the contact with the accused. She did not have any plan in mind as to what she would say although she indicated that she had a sleepless night the previous evening going through "100 different scenarios" as to how the call might turn out. She said that she tried her best to obtain recorded admissions; that is to get the accused to say all the things that he had done to her and her intention was to "roll with it" or "wing it" in terms of her reactions.
She said that for the call that took place between 4:28 and 4:38 PM, Officers Whiteley and Hallcroft remained in the room with her. She explained that this was at her request - she did not want to be by herself. But, she said, she received no instructions as to what she should say. She recalled Officer Whiteley had read the questions in the briefing document and said that she understood. She acknowledged that she was in emotional state during this call. She explained that this was the first time she had felt that she was in a 'safe space' to confront the accused and to 'make him own up to disgusting things' he had done. She said she had no plan although she understood she had a job to get admissions and needed him to say certain things. She was not going to let the accused say that he 'did not remember'.
The complainant was also referred to the video recorded attempts to call the accused on 16 June 2020; all of which were unsuccessful in establishing contact. She was aware that on this particular occasion there was a video recording. This is different to the early occasions on 20, 25 and 26 May 2020.
She was also referred to the attempted contact on 22 and 23 June 2020. She thought the former had occurred at her house although, having listened to the recording recognised that it was likely that it had occurred at Mount Druitt police station. The latter occurred at her house.
Generally, she was asked about when police had first suggested that she speak to the accused in this way. She thought that it was "not long before" the first attempt on 20 May. She confirmed that she had indicated her willingness to participate in the procedure; this was after Officer Whiteley had explained the procedure and purpose. She confirmed that it was only Officer Whiteley who she had spoken to about the process. She generally indicated that she communicated with Officer Whiteley by telephone; although there were occasions when there were email communications. She did not recall receiving any instruction by the officer as to what she should say to the accused in any email.
Features of the complainant's cross-examination were the complainant's: 1. acceptance that although she thought a conversation with the accused on 20 May occurred at her home, it was more likely that occurred at Mount Druitt police station. She also indicated that she was fairly certain that on the occasion of 20 May, a video camera had been used; 2. reiteration of her evidence that it was not long before the first attempted call on 20 May that Officer Whiteley explained the procedure and purpose of it. However she was referred to an email on 19 September 2019 (VD Exhibit 13) which indicated that Officer Whiteley had been made aware of the procedure several months before the first attempted contact was made. It was apparent from her re-examination that Officer Whiteley had told her about the warrant being obtained on 3 May 2020 (VD Exhibit 14). 3. indication that she took no note of the calls with Officer Whiteley nor noticed the officer taking notes. 4. indication that she did not need to be told what sort of admissions were desirable: she wanted admissions from the accused as to all the things he had done to her; 5. recollection that, other than one of the officers suggesting that she should try again, she could recall no further substantive content of any discussion with Officer Whiteley about the nature, quality or usefulness of the evidence that had been obtained in the period for between 26 May and 16 June 2020. Specifically, she denied Officer Whiteley had suggested that the admissions that she had procured to that point were 'not good enough'. She was however referred to an email (VD Exhibit 12) in which Officer Whiteley appeared to suggest that a prosecutor's advice be sought if the investigators had had "enough" admissions and, if not, how much more 'direct' they should be. The complainant did not recall having a conversation with Officer Whiteley about this; 6. response to whether she personally thought that the information she had obtained was sufficient, which was that she said (in retrospect) that it was a big relief to her to have the opportunity to confront the accused from a 'safe space' even if, at the time, it was a 'job' to attempt to obtain admissions from the accused; 7. acceptance that she felt infuriated with the content of the first of the conversations with the accused on 26 May. This was because of the accused's statements of non-recollection. She said she was 'on a mission'. By the end of the second call on that day, she believed that she had obtained sufficient admissions; 8. acceptance that she told certain untruths to the accused during the calls. The complainant appeared to justify doing so as this was a 'one-time opportunity' to obtain admissions. She disagreed with the proposition that she was not also motivated to try to obtain 'closure', as if this was contradictory to, or incompatible with the motive of obtaining admissions. She agreed however that she had indicated that she would keep trying to elicit admissions from the accused; although appeared to baulk at the idea that by doing so, she had 'threatened' the accused. Her intention was to pursue the accused if he persisted in claiming that he did not remember certain things. She later agreed that she was content to pursue conversations with the accused until he admitted certain things; even if he said no. She also effectively agreed that she wanted to control the agenda; by stopping the accused from saying what he might have wanted to say; 9. acknowledgement that she wanted more than the accused's admission that he had 'played with himself' in the shower: she wanted him to admit to everything she said he had done to her; 10. agreement that she was aware that (on 26 May) the accused was in an emotional state; even crying. In response to the suggestion, in effect, that she was exploiting that state, the complainant said she could not have cared less; 11. evidence that she had no specific plan or questions she wanted to ask of the accused. She was, however, referred to part of her witness statement (12 September 2022) and her own expression 'mapping out'. She explained that this was playing out, in her mind, scenarios as to how the conversation might evolve; 12. inability to recall anything substantive in terms of what was said in the period of about 15 minutes between the two conversations on 26 May. The gist of what she recalled Officer Whitely or Hallcroft saying was that she was 'doing well' and being thanked for her participation; 13. absence of recollection as to her interactions with Officer Whiteley in the period from 26 May to 16 June. Specifically, she could not recall being told to be more 'direct' in her questioning of the accused (for any further conversations); and did not recall any conversations with the police officers manifesting a concern that the admissions procured to 26 May were not 'enough'. The complainant said she recalled being asked whether she was willing to do any more calls; 14. response to the proposition that she made calls 'on behalf of' police, in circumstances put to her, was that she appreciated the opportunity or benefit of questioning the accused from a 'safe space'; 15. indicated that neither Officer Whiteley or Hallcraft had advised her to: moderate her language when speaking to the accused; suggest that she given him (full) opportunity to answer her questions; suggest that the nature of the conversations be more free-flowing (as opposed to being directed by her) or suggest that she be (fully) truthful in all that she said to him.

[24]

General Submissions

Before I address each of the suggested bases for exclusion, certain general points should be noted.
First, the accused did not cavil with the legality of the warrant or with its execution. Subject to his argument about impropriety, for s 138, for example, his Counsel accepted that what evidence emerged from the use of the listening device was 'lawfully' obtained in the sense of there being no contravention of an Australian law. With reference to the content of the warrant issued by the Supreme Court, his Counsel further accepted that the complainant was entitled to take steps to 'conceal' the fact that a device was being used.
Secondly, Counsel for the accused ultimately accepted that the proper sequence for consideration of those provisions was: s 84, s 138, s 137 and finally (as a "final or safety net provision" [3] ) s 90.
Thirdly, I have considered the parties' extensive written submissions (MFI 1 and 2) even if in my summary of the submissions below, I omit reference to any part of those documents.
Fourthly, both Counsel cited and quoted extensively from many authorities. In particular, Counsel for the accused cited (indeed, place heavy reliance upon) a decision of R v CS [2019] NSWDC 875 and, in return, Ms Crown cited other decisions of Judges of this Court, being R v Hajjar (Unreported, 21 May 2021) and R v Edwards (Unreported, 14 November 2022). The Crown's principal position, however, was that to the extent that I might look for guidance from the authorities, I should focus on decisions of intermediate appellate courts and the High Court. I agree. To be fair, both Counsel acknowledged that single instance decisions of my fellow judges are not binding and they acknowledged the fact-intensive nature of (in some cases) the discretionary inquiries I am now embarking on. These acknowledgements were well made. But in addition to those limits, and with unfeigned respect to my fellow judges who decided those cases, all of whom have extensive experience in the criminal law as practitioners and as judges, I remind myself that I am not dealing with the common law, but rather am applying statutory provisions. The authorities are, with respect, more material to me when decided by intermediate appellate courts and when they concern points of interpretation or principle.

[25]

The admissions the Crown relied upon

Although the Crown had identified no less than 28 admissions in Ms Crown's written submissions (MFI 1, par 23) in the course of the hearing the Crown pared back this list.
Eventually, the Crown settled (in MFI 3) upon the following 'admissions' that it relied upon as the basis for the analysis that the Court needed to engage in when considering the exclusionary provisions in contest. These fell mainly into the category of admissions by representations; and the Crown further divided these up according to the different conversations. But the Crown also relied upon the category of admissions by conduct.
This exercise by the Crown in paring back the admissions it relied upon occurred after Counsel for the accused had effectively finished his closing oral submissions (in chief) and I gave the accused's counsel the opportunity to consider submissions he had made and any further submissions he might wish to make in the light of that exercise.
The accused's Counsel took advantage of that opportunity. He did not dispute that anything contained in MFI 3 could be regarded as 'admissions' for the purposes of engaging the exclusionary provisions; although Counsel had, in written submissions prepared before MFI 3, described them of being of a generalised kind.
It is convenient now to reproduce the Crown's list in MFI 3 and I reproduce the material part in its entirety (what is put in parentheses represents the Crown's characterisation of each admission). Dealing first with the main category (admissions by representations), as to the first sub-group of admissions, these were as follows: Phone Call at 4.03pm on 26 May 2020 a. The complainant said "…I need to know why you did what you did to me …Everything you did. Coming in my showers, making you touch, me touch you or you touching me. You have sex with me, you making me drink alcohol, you making look at your Penthouse magazine behind the bar. All of it", which the accused denied "No, no, no, I" but he admitted "I remember, right… We went to Louee, right? (p.6, also pp.7-12) b. The accused admitted "I, something happened with--- between you and me when you were 15. And it was not instigated from myself. … I'm telling you… something that happened when you were 15. And even talking about it makes me feel sick" (p.9; also see pp.10, 11, 13)) [General admission of sexual conduct with complainant when 15 years of age] c. The complainant said "I remember everything [accused's name] … I remember everything. What about when we had the magnifying glass thing. And you called me upstairs and then you made yourself ejaculate onto the glass slide and then you made me look at it. … All of it, I remember everything … you weren't expecting me to ring you because I've been quiet for nearly 20 years. Why did you do it to me? Why? Tell me" (p.13) - the accused made denials (pp.13-14) and then the accused's comment, "But if I, if I (sniffling) did do something like this, like fuck, I seriously can't remember. I must have been fuckin' off my head or something…" (p.15) [Implied admission - Count 1 / Particular 1 (Masturbate his penis in the presence of [complainant's name]); and Alternative Count 3 (Microscope slide incident)] d. The complainant said "Stop going around in circles and just tell me why you did it" and the accused replied "No. I, I'm just, I'm dumbfounded at the moment. I'm really (gasping) just dumbfounded. (Sighing) I have never, ever meant to hurt anybody, especially you" (p.16) [Implied general admission of sexual conduct with complainant]
I do not consider that what appears in (a) above meets the definition of 'admission' as defined in the Dictionary in the Evidence Act. The accused is not making any representation, even impliedly. He is responding to an assortment of assertions by the complainant, but all he refers to is a time at Louee in circumstances where in one of her statements, the complainant said that no incident of a sexual nature occurred at Louee. Nor do I consider that what appears in (d) to constitute an admission. The accusation is vague on its face and even in its context. The substance of the accused's response is one of non-recollection (in a state of apparent disorientation) and the negative assertion (what he did not intend to do - that is hurt the complainant) is thoroughly ambiguous.
The next sub-group of admissions by representations occurred in the second conversation of 26 May 2020. The Crown identified them as follows: e. The accused asked the complainant "Yeah, but what do you want from this?" (p. 16) and "So I want to ask you something … What is it you're wanting from me? … Yeah. But what are you trying to do, are you setting me up somewhere, so like, eh, eh, somebody is on the other end of that line is gunna go okay mate, we've got you, you're going to gaol now? … 'Cause does that help my family? … Does that help my kids?" (p. 19) [General admission of sexual conduct with complainant] f. The accused asked the complainant, "Ok. Can I just say something to you. Are you by yourself or are you with somebody? … Ok. Look, look, I, I, I don't know why, [complainant's name]. I don't know why. … I, no, I've got no idea. Like there was things that happened that I can't even explain to this day. And like it makes me feel sick and I know what, what you go, what you're going through. I can't imagine it. And I'm really, really, really sorry. Like I (sighing) I don't know. I love you kids, like, ah, maybe I just took ye, your affection a bit too far. Like I'm (sighing) I'm, I'm devastated. I am sorry, trust me, I ---" (pp.19-20) [General admission of sexual conduct with complainant] g. The complainant said "You've ruined my whole childhood" (p. 20) and the accused replied "I understand that, darling. I'm, I really apologise. (Sighing) I never, ever wanted to hurt you ever. I loved you" (p. 20) [General admission of sexual conduct with complainant] h. The complainant said "But you did, you did hurt me" (p. 20) and the accused responded "Yeah, I know" (p. 20) i. The complainant said "You did horrible things to me. Even now…hurting me even more, saying you don't remember) (p. 20) and the accused replied "I, I just --- There was some things that happened, yeah. I remember, yes. Some things --- And I, like I said, I, I'm gutted. Like I---" (p. 20) [General admission of sexual conduct with complainant] j. The complainant said "…What do you remember?" (p.21) and the accused responded "I did, just re, I remember like when you said the things in the shower, yeah, I did come into the shower with you a couple of times. And I should never have done that. …Yeah, I'd play with myself. … It was wrong. … Just the stupid things that I did. I, like I would touch myself a lot. And I should never have done that" (p.21) [Admission - Count 1 / Particular 1 (Masturbate his penis in the presence of [complainant's name])] k. The complainant asked "What about touching me, do you remember that?" (p. 21) and the accused replied "Yeah, I did, I think" (p.21) [General admission of sexual conduct with complainant] l. The accused's comments "I never --- meant to hurt you" (p.22) m. The complainant said "20 years, [accused's name]" (p.22) and the accused replied "Mmm, I know. … But I never--- meant to hurt you. I never, ever meant to hurt you. And I, I, I, (sighing) I haven't got words to even say how sorry I am" (p.22) [General admission of sexual conduct with complainant] n. The complainant said "I don't want an apology" (p.22) and the accused responded "I know. I don't, I know and I can't --- apologise, I can't, I can't --- give you back that time. … I can't give you back that time. (Sighing) I feel like my life (sniffling) is worthless now. Like I don't deserve to live, it just ---" (pp.22-23) [General admission of sexual conduct with complainant] o. The complainant said "What do you remember, tell me" (p.23) and the accused replied "I can't remember a lot of stuff… Myself, I do. … I can't remember [touching complainant's vagina] … No, I can't remember" (p. 23) p. The accused asked the complainant "But how are you gunna get closure from this? (sniffling) That's all I want to know, like how are you gunna get closure from this, like what are you wanting me to do? … But I told you, I - I did it" (p.24) [General admission of sexual conduct with complainant] q. The complainant said "…I've never gone to [related persons] or [related persons] and [related persons] or Mum or, nothing. I've kept it to myself this whole time and I can't---do it anymore" (p. 24) and the accused replied "I know. I'm sorry, I'm sorry" (p.24) r. The complainant said "I need, no, all I ---want for my closure --- admit it" (p.24) and the accused replied "I just have. I just admitted it---that I did things. … Because you know why, I'm --- I worry about my family now" (p.25) [General admission of sexual conduct with complainant] s. The complainant said "No, you're, my problem is you and what you did to me. And that is what I am trying to get through so I can go on with the rest of my life not worried about --- this anymore" (p. 25) and the accused responded "I just want you --- to get on with the rest of your life. That's all I want you to do. Just get on with your life" (p. 25) t. The complainant said "Well, that's what I want you to just do this for me so I can and I don't have to keep thinking about it anymore" (p.26) and the accused responded "Yeah, I, and I, did touch you, yeah. Then we, I should never have done that when we had the massages. I should never have --- done that" (p.26) [General admission of sexual conduct with complainant] u. The complainant said "Yeah. And what did you do with the massages, do you remember pushing your fingers in? Do you remember, mm having sex with me on Mum's bed?" (p. 26) and the accused replied "I don't remember that" (p. 26) v. The complainant said "Do you remember the slide thing ? [ details…]" (p.26) and the accused replied "Oh, really? I'm sorry, Miss, um, [complainant's name], I don't remember that. I'm really (sniffing) sorry … I feel so bad" (p. 26) [Implied admission - Count 1 / Particular 1 (Masturbate his penis in the presence of [complainant's name]); and Alternative Count 3 (Microscope slide incident)] w. The complainant said "Do you remember ---how old I was?" (p. 26) and the accused responded "I, I, I can't remember. Probably, I don't know, I don't know, I really don't know … Well, you said before you were nine, but I never remember that" (p. 27) x. The complainant said "What do you remember then?" (p.27) and the accused responded "I remember, like I told you, like --- the massaging thing" (p.27) y. The complainant said "No, how old do you, no, how old do you think I was? If you don't think I was nine, how old do you think I was? … I remember ‑‑‑ all of it. Everything. I used to pretend I was asleep when you did what you were doing 'cause I was too scared to wake up. I remember all of it. I was awake the whole time" (p. 27) and the accused replied "I'm so---I just told you, I'm so sorry" (p. 27) TO BE READ TOGETHER WITH z. z. The complainant said "How old was I, tell me?" (p.27) and the accused replied "I don't know --- nine or 10. … Nine or ten." The complainant said "Yep. Disgusting. …" and the accused replied "It is. … It is disgusting" (pp. 27-28) [General admission of sexual conduct with complainant] aa. The complainant said "What did you do?" (p. 28) and the accused responded "Fuckin' hell. I'm so sorry. … I am sorry, though, that's the thing. I'm not the same person anymore. I'm a different person. I feel disgusted in myself. … I know it is, totally. I shouldn't, oh, I should never have just put this behind me and forgotten about it --- 'cause it's hurt you" (p.28) [General admission of sexual conduct with complainant] bb. The complainant said "Why … me?" (p.29) and the accused replied "I don't know. I don't know. (Sighing) I don't know. I seriously don't know. … I'm sorry, darling" (p. 29) [General admission of sexual conduct with complainant]
Even with a broad conception of 'admission', considering the statement on its face and in context, I do not consider that what appears in (u) above fulfills the two requirements in the definition of the term. It is not adverse to the accused in response to a specific assertion by the complainant.
Finally, as foreshadowed, the Crown submits that the accused's emotional state (exemplified, for example, by his crying) in the second conversation manifested an admission by conduct.

[27]

The Accused's submissions

The accused submitted that when considering the conduct and circumstances overall, the Crown did not discharge its onus of establishing (on the probabilities) that the admissions were not influenced by 'oppressive' conduct by the complainant. (Counsel verbally acknowledged that 'oppression' was the only species of conduct under s 84(1) that the accused relied upon).
The accused identified multiple circumstances which, cumulatively, constituted oppressive conduct which had influenced the admissions (and the making of them). These were identified in the accused's written submissions (MFI 2, par 21) as follows: 1. putting a demand in the form of a compound question to the accused which contained six separate allegations (some being specific and some being general); 2. putting to the accused that he was accusing her of being crazy by virtue of his denials; 3. declaring that the accused's repeated denials of wrongdoing were lies, that he himself was a liar and "full of shit" for making them; 4. demanding that the accused admitted that he is paedophile and that he had abused children other than herself; 5. putting uncharged acts to the accused, such as providing her with "Ecstasy" when she was a child; 6. asking the accused whether he had also abused her sisters; 7. repeatedly demanding that the accused admit to the conduct, that she had put to him, so as to enable her to have "closure" and to "move on with her life"; thereby implying that she would continue to suffer from the symptoms she had described to him unless he acknowledged his guilt in his prior conversation with her; 8. threatening to call the accused again if he did not make the admissions which the complainant had sought from him; 9. calling the accused again (on 26 May) 14 minutes after he had chosen to terminate the call; 10. lying to the accused when he asked her whether she was alone; 11. repeatedly telling the accused to "be a man" and confessed to the allegations as she had put to him.
The accused suggested that there were two implied 'threats' to the accused which influenced the making of the admissions. The first was an implied threat that the complainant would keep on asking the accused questions until she received the answers she desired. The second was unless the accused gave her the answers that she desired, she would talk to other people.
The accused accepted that a relevant consideration when assessing oppression was the nature of the relationship between the accused and complainant. In this regard, although there was a significant age disparity between the two, that had little weight in the circumstance that she was 27 years of age (and the accused was 49) at the time the admissions were procured. Further, although the accused had been her step-father, that was no longer so. Their relationship had effectively broken, with the complainant seeking no contact with the accused for a period (until May 2020). The accused's counsel argued that it was not too much to say that the complainant had exploited his client's emotional vulnerability and familial connection. Counsel (in verbal submissions in reply) argued that there did not need to be any objective aspect to 'vulnerability' in this context (such as a diagnosed mental disorder). It was enough that there was situational vulnerability. In this case, Counsel contrasted the accused, manifesting a sense of paternal affection for the complainant as against the complainant, who had a predetermined agenda to interrogate the accused and with disregard for his feelings performing the functional equivalent of an interrogation.
When I raised with the accused's Counsel that by the time of the second conversation on 26 May, the accused had appeared to be more 'on guard' than when he was when he first spoke with the complainant that afternoon, his Counsel said that that should not be overestimated. There was only a gap of about 15 minutes between termination of the first of the calls that afternoon and the beginning of the next one.
Viewing her conduct as a whole, which in summary, featured lies, her free rein to say what she liked to the accused and her haranguing of the accused, her oppressive conduct influenced the decision to make and the content of the admissions.
Counsel for the accused also emphasised, with reference to all bases of exclusion, that the circumstance that in the lead up to the hearing, the Crown had indicated its intention not to rely upon certain parts of the recorded conversations did not have the effect of eradicating oppression, or unfairness or improprieties that had hitherto arisen by reason of the complainant's conduct or that of the police officers. The tribunal of fact needed to have an unvarnished understanding of the full circumstances, and this included the entirety of the sound recordings of the conversations. The content of what was said in those recordings bore especially upon ss 84 and 90. The circumstance that the Crown now sought to 'sanitise' what would go before the tribunal of fact presented the circumstances in an unrealistic light. That tribunal of fact might not, for example, know whether what the Crown now sought to sever influenced the making of the submissions. It would be wrong for a sanitised version of conversations, denuded of its worst features, to be put before the jury, since the Court cannot now determine, and the jury could not tell, the extent to which those worst features, contributed to the making of the admission(s) or its content.

[28]

The Crown's submissions

The Crown submitted that although the word 'oppression', as it appeared in s 84(1), was not defined, it took its colour from the provision read, as a whole, which featured other analogous qualities such as 'violent', 'inhuman' or 'degrading' conduct [4] . Whatever else might be said about the complainant's conduct, it did not obviously fall within the genus of conduct reflected in s 84(1).
The Crown accepted that the concept of oppression could encompass "mental and psychological pressure" and sought to distinguish cases that the accused had relied upon to ground this exclusion. The Crown contended that there were no 'methods' used by the complainant. As a 27-year-old woman she was speaking to a person who was her stepfather when she was child and putting allegations to him for the first time. The conversations were unscripted. In substance, she was telling the accused what she remembered that he had done to her and asked him why he had done it. She questioned his denials, asked him what he remembered and challenged his suggested lack of recollection. That the tone of the conversation was somewhat emotionally charged was unsurprising and to be expected.
The Crown took issue with each and every particular cited by the accused as making out oppression: 1. the complaint about compound questions was not warranted: there was nothing to suggest that the accused did not understand was being alleged and in any event, he denied them at the time; 2. The Crown had indicated its intention to redact some parts of what the complainant said; 3. the complainant's references to her need for 'closure' and to get on with her life, did not amount to oppression (or unfairness). The accused was neither obligated in some way to, nor vulnerable to the complainant; 4. the complainant did not 'threaten' to keep on calling the accused or demanding satisfactory responses. It was more accurate to say that she was giving him the opportunity to think about what had occurred. In particular it was hardly oppressive to ring him back 14 minutes after the termination of the first call; 5. that the complainant told certain lies not evidence oppression. Nor was her statements to him to "be a man"; 6. unlike some other decisions that had looked at the concept of oppression, the complainant exerted no authority or control over the accused; 7. A clear indicia of the absence of vulnerability was the accused's continued willingness to participate and not terminate calls at his choosing.
That the complainant was 'somewhat emotional' was unsurprising given that this was the first time that she had been speaking, as an adult, to the accused about alleged historical incidents 20 years previously when she was a child. There was no oppression (or unfairness). Nor was there any basis to content that the admissions were otherwise voluntary. There was no evidence that his will was overborne in any way.
That the accused appeared emotional (especially in the second of the material conversations on 26 May) was, as indicated, itself an 'admission' (by conduct). It was capable of being viewed otherwise than the result of the exercise of any 'ascendancy' that the complainant had over him.
On the aspect of the accused's criticism of the Crown's proposed redaction of content of conversations, the Crown submitted that it was a common place for redactions of transcripts to take place, for multiple purposes, before a jury. Ms Crown disputed that it was necessary for any of the proposed redacted parts of the conversations to be before the jury for it to understand the context for the admissions. But even if that was wrong, Ms Crown submitted that, if appropriate, a warning might be given to the jury about circumstances affecting the reliability of admissions including, without limitation, the difficulty a jury might have in assessing admissions (made out of court) with a necessarily limited appreciation of the full context in which they are made.

[29]

Consideration

In terms of the onus of proof, in Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299, the Court of Appeal observed (at [273]) that: "s 84(1) placed the relevant onus squarely upon the respondent [the party seeking admission of the evidence] once the primary judge concluded, as in our view he did, that there was s 84(1) conduct in relation to the appellant's situation".
This observation has been criticised for misstating the onus. It has been argued that once a party seeking exclusion points to a reasonable possibility of an admission (or its making) being influenced by the prescribed conduct, the onus falls on the party seeking inclusion to prove that the prescribed conduct did not occur, or if it did, it did not influence the admission (or its making). There is no obligation on the party seeking to exclude the evidence to prove that there was no 's 84 (ie proscribed) conduct' [5] . Whether or not that criticism is well founded, I am bound to apply the Court of Appeal's statement.
In Deacon v The Queen (2019) 282 A Crim R 303 ("Deacon"), the Northern Territory Court of Criminal Appeal observed the following about oppression under s 84(1) (at [33], in terms which that Court substantially applied at [49]): "The contention is that the conduct was "oppressive". Neither that term nor any of the other species of conduct referred to in s 84(1) are defined in the (Evidence Act). The New South Wales Court of Appeal considered the scope of that term in Habib v Nationwide News Pty Ltd. The Court observed that the dictionary definition of "oppressive" included "burdensome, unjustly harsh ... causing discomfort because uncomfortably great, intense"; and that the term "oppression" was defined as "the exercise of authority or power in a burdensome, cruel or unjust manner". The concept of "authority" in this context necessarily extends to the exercise of de facto authority, control and power in an oppressive manner even where it emanates from a non-official source. Oppressive conduct is not limited to physical conduct, and extends to encompass mental and psychological pressure. The assumption of unlawful powers of direction, control and detention may also amount to oppression in the relevant sense. In making that assessment, however, it is necessary to bear in mind that the term "oppressive" is to be read eujsdem generis [6] with the other terms in s 84(1)(a), and is not to be given an overly expansive interpretation"
Whilst in the absence of statutory definition of the concept, there may not be any exhaustive definition of the concept, I respectfully adopt that description of the ambit of this particular proscription in s 84(1) as sufficient for present purposes.
As to the causal connection in s 84, in R v Ye Zhang [2000] NSWSC 1099 ('Ye Zhang') Simpson J (at [44]) observed: "... s 84 does not require the isolation of a single reason, or a single event or incident or instance of conduct provoking the confession; there may be a number of factors working together that, combined, cause the admission to be made. If oppressive conduct on the part of police is one of those factors (or, more accurately, if the Crown has failed to negative such conduct as one of those factors) then the evidence is inadmissible".
The Northern Territory Court of Criminal Appeal in Deacon also distinguished between: " …. admissions made as a consequence of perceived psychological pressure which is a response to an individual's predicament, and those which are the product of oppressive conduct."
I regard the complainant's conduct as falling well short of amounting to an exercise of authority or power in a burdensome, cruel or unjust manner. Nor did she exert any real mental and psychological pressure. The accused's submissions to the contrary are vastly overstated if not overblown.
The reality was that the complainant exercised no authority, power or control of any kind over the accused in the conversations; let alone cruelly exerted it. Of course, she was not a police officer, but she did not appear to him as holding any right or power to extract information from him. She was physically remote from him. He was free to terminate the calls at any time. The conversations were relatively brief in time. Although there was repetition in some of the complainant's questions, it was minor and done with the purpose of challenging statements of non-recollection and perhaps denial: repetition did not occur to perpetuate discussion for its own sake. At the commencement of the second call, it was the accused who took hold of the agenda by making inquiry of the complainant, and her purposes in speaking to him. This was incompatible with the notion of any 'inequality' between the two of them. The facts are far removed from the type of situation observed in R v Paris (1993) 97 CR App 99, a decision the accused relied upon.
This is also not a case of exerting emotional leverage or her exploiting the accused's 'vulnerability'. They were both adults - although the accused was significantly older than her and at an earlier point of the relationship was step-father (factors which, by itself indicates the counter-intuitive nature of the submission). Usually, in human relationships, a person's ascendancy over another is built up over time. It is unusual that it can suddenly and spontaneously arise in a singular conversation. Given the absence of any contact between the complainant and accused over a significant period of time, up to the time of calls, the complainant had not built any ascendancy over the accused which might just spill over into phone calls.
This, I think, forensically forced the accused's Counsel to fall back on the suggestion that the accused's vulnerability to the complainant was 'situational' ie. in the circumstances only occurring at or about or during the conversations themselves. The circumstance that, particularly in relation to the first of the calls, she had an agenda and was preparing to try to exact admissions did not give rise to real 'situational' vulnerability. At most, the accused may be taken to have been caught off guard, but as was plain at the commencement of the second all on 26 May, he had gathered his composure (if he had in fact lost his composure during the first call, which is very doubtful) well enough to 'interrogate' the complainant about her motives and purposes. Moreover, as the Crown emphasised, he had indicated his continuing capacity to reason and deploy his free-will when he articulated his apprehension about the consequences of his providing information to the complainant in terms of his position as a father of a family. On the latter score, the circumstances that he was married and had a family, along with his age at the time of the calls, can probably be viewed as an indicator of a baseline level of maturity, resilience, intellectual and cognitive functioning and a general resistance to being dominated by a woman twenty years his junior.
It was suggested on the accused's behalf that he was vulnerable because of his sympathies to the complainant and that the complainant exploited this. That might be one inference that could be drawn (even if it appeared contrary to the absence of contact over a long period of time), but it is a matter for the jury to determine whether or not to accept that explanation. The obvious contrary inference is that such sympathies as were manifested by the accused were directed to himself and in particular, the consequences that might befall him (including forced separation from his family upon any successful prosecution against him) if he was held to account in the event (unknown to him at the time) that the complainant did lodge an official complaint against him.
I accept, having heard the sound recordings, that the complainant was emotional, that she was pushy, rudely interrupted what he was saying and at certain points, even verbally abused the accused. But that was not unexpected between persons who plainly were not strangers and had had a familial connection and were, self-evidently, both in an emotional state (for most of the calls). The circumstances were not such that the accused was deprived of the opportunity to terminate the calls. That he did not and rather, effectively submitted to continuing to be questioned by her might arguably, as the Crown suggests, be a factor in support of its argument about his conduct constituting an implied admission of sexual abuse. It was not a pointer to any lack of capacity in him to terminate the calls.
Further, she told certain falsehoods, such as her being alone; and not telling anyone. In my view, the salience of lies arises in relation to other bases for exclusions (especially s 138). I struggle to see however, that any lie or deception perpetrated by this complainant against this accused amounted to the former's exertion of power, control or authority of one person over another. I think the contrary is true: the lie is intended to lull the recipient into a false sense of security.
I am not persuaded that incidents that were not featured in earlier witness statements but were put by the complainant to the accused in the telephone conversations. This particular point was not explored or canvassed by the accused's counsel in the hearing of this application after the Crown had responded to the point in its written submissions. At any rate, in certain respects, there was a degree of correspondence between certain incidents identified in the complainant's statements and what she put to the accused in the calls, such as the references to misconduct during massages, sexual intercourse in her mother's bed and the coerced observation of her inspecting the accused's ejaculate. If it be the case that additional sexual acts were raised with the accused that went beyond what was contained in the complainant's witness statements that did not necessarily indicate inconsistency; as distinct from revival of a recollection of another episode. Still less would it betoken deliberate inconsistency in the context of a free-wheeling conversation. At any rate If there were material inconsistencies between what she said in her police statements and what she put to the accused, doubtless that might be a matter for exploration by the accused's trial counsel. It is not a factor pointing to exclusion.
I reject the submission that there were implied threats of the kind asserted. The complainant did not have the capacity to (metaphorically) coerce answers no matter how desperate she may have been to receive them. The accused did not lose the capacity to decline to answer even if the complainant did repeat allegations which he was uncomfortable in answering. I agree with the Crown that she was giving the accused the opportunity to rethink his position. This was manifestly apparent towards the end of the first call. What she objected to was what, in her mind, was the blithe statement of an absence of recollection and denials. Having listened to the calls, she challenged them because she felt that the accused was deliberately not forthcoming or because she believed he was not trying hard enough to exhaust his recollections. Although she expressed herself more forcefully, say, than an investigative officer in an interview, when testing the adequacy of a suspect's answers, it did not reach the level of oppression
There is even less scope to draw an implication that the complainant would threaten to tell others about his conduct as a means of inducement. If she was so inclined, the most obvious threat she would make would be an express one; conceivably including a threat of disclosure to the accused's wife, to her own mother or to police. She was not shy or subtle. In my view, when the complainant spoke of persons, she claimed she had not spoken to, she was doing so to emphasise the burden that she (believed she) had carried. This circumstance may well be viewed as an inducement to more information, but it constituted no threat that unless he made admissions she sought from him, she would make disclosure to a range of potential persons. Further, as was also observed in Gahani v The Queen (2022) 370 FLR 485 at [105], any implied threat by a complainant about going to police would be more likely to elicit denial than an admission or partial admission.
On the issue of threats, I would respectively adopt the observation of Beech-Jones J in R v Tarantino (No.6) [2019] NSWSC 1174 at [186] that for the purpose of 84(1), threats must be 'actual' and not only the product of a person's mental processes. I reiterate that the Court did not even have before it evidence of this accused's mental processes. At any rate, there were no 'actual' threats.
I noted earlier that the accused did not give evidence on the application. I note specifically, with reference to s 189(3), that there was nothing to stop the accused from giving evidence on the voir dire (relating to the circumstances in which the admissions were made and whether they made it unlikely that the truth was adversely affected) from giving an account of what, if any, threats he (subjectively) perceived from what the complainant said. In that vacuum there is no objective foundation for the notion of implied threats. More generally, there was no evidence about the accused's personal characteristics that rendered him susceptible to oppression to any material degree.
It is also an overstatement that she deployed 'methods' or 'devices'. It is patently clear that aside from her opening gambit in the first of the two main calls on 26 May, in which, virtually breathlessly, she got off her chest as much of the allegations she wanted to raise with the accused in a single hit (or 'compound question') - which the accused easily rebuffed - that the content of the conversations was anything but methodical or structured. Although she said in one of her police statements that she had 'mapped' out what she might say, that is hardly surprising - she was alerted to the possibility of pretext calls at least many months before May 2020. Having regard to the allegations she now makes, it would have been unnatural for her not to have thought about what she might say to the accused if given the opportunity (from a 'safe space'). But such preparation, much like when battle is joined against an adversary in wartime, could only carry her so far. My hearing of the recordings supported the complainant's later description that she was forced to 'wing it'. To do otherwise, to stick to any preconceived script irrespective of the accused's responses, would conceivably have aroused the accused's suspicion and jeopardised the efficacy of the investigative technique. Further, I do not find persuasive the notion which perhaps may have been insinuated, that the complainant was laying on emotion like the proverbial trowel. She said in her statements she found the process hard, she was heard to be sniffling and her emotionalism was vouched for by Officer Hallcroft. It was not put to her that she was insincere in her expression of her emotional state or that she was 'faking' it merely to play upon the accused. That being so, it strikes me as being incompatible with a person in that emotional state to coolly (even ruthlessly) have been in any state, in a naturally spontaneous exchange with the accused, to have any 'methods' or 'devices'. Further, as some of the authorities, such as Em and R v DRF (2015) 263 A Crim R 573 ('DRF') indicate, the nature of the exercise is such that a level of trickery may be expected for this technique.
The accused's point about the redacted version of the admissions is, in my view, more relevant to the grounds for exclusion under ss 138, 137 and 90.
Since it is unnecessary to make out under s 84 oppressive conduct by investigative officials and it suffices to establish that the complainant engaged in oppressive conduct in an individual capacity, I propose to defer consideration of the point that the complainant was an 'agent of the state' until considering the next basis of exclusion (s 138) and other bases, where in my view, the concept has greater work to perform. I note in this regard that in the accused's Counsel's written submissions, his treatment of the 'agent of the state' point was not referred to in connection with s 84.
The above findings indicate that I am not satisfied that the proscribed ground of oppression in s 84(1) arose.
If, I am wrong, I (contingently) propose to briefly consider the causal connection between the oppressive conduct and its influence on the making of the admission and the circumstances in which it was made. This is a matter for which the Crown carries the onus.
As the passage from Ye Zhang, which I referred to earlier suggests, it is unnecessary that the proscribed (oppressive) conduct is the only factor which causes the admission to be made. Where there are multiple factors at play which influence the admission, the task for the Crown effectively requires the Crown to disentangle them; ie to disprove that the proscribed (oppressive) conduct was one of multiple factors influencing the admission and the circumstances in which it was made.
It has been found that where there is delay between the oppressive conduct and the making of an admission, this can establish a finding that the conduct did not influence the admission or its making [7] . Moreover, if substantially the same admission was made on other occasions where the proscribed conduct had not influence, again, a causal connection may be negatived [8] .
As to the admissions made in the first of the two main phone calls on 26 May in which contract was established, they were few in number.
In my view, pressure exerted by the complainant in the first of the two 26 May 2020 calls (in which contact was established) did not influence admissions made by the accused in the second of the calls. This was because there was a delay between the termination of the first call and the commencement of the second call. It is true that the period was not that long (14 minutes), but it was evident from the early part of the second call that any conduct by the complainant in the first of the calls had not substantially impaired the accused's mental freedom at the time when the second call commenced. To repeat, I find that at the commencement of the second call (in which contact was made) on 26 May, the accused was fully in command of his faculties, so much so that he interrogated the complainant in light of his suspicion that he might be being set up by the complainant. To illustrate the point, when the complainant started off by stating that "You need to just talk to me and tell me why", the accused ignored her statement and, instead, commenced to raise questions of the complainant. He knew that he was not obliged to speak to her and took care to only speak to her once he had received assurances from her. That those assurances were lies is a particularly relevant matter when considering s 138 but by themselves do not strike me as constituting 'oppressive' conduct.
Subject to some qualification, the matters referred to in sub-paragraphs 21(a)-(h) of the accused's written submissions all occurred in the earlier of the (material) calls on 26 May. The first qualification concerned the complainant asking whether the accused whether he had abused her sisters. The second qualification concerning the complainant stating that she needed to move on with her life. This question and statement (respectively) was raised in both phone calls. As to the former, no admission was in fact made about the accused's dealings with the complainant's sisters. I do not ascribe that anything else he said could be influenced by complainant's query about abuse of her sisters. As to the latter, in the latter of the calls, the complainant referred to her need to move on was a spontaneous response to the accused speaking of his problems to the complainant. Viewed in that context, to raise as her motive her need to move as a means of inducement on was not oppressive.
I consider that the Crown has negatived the connection between the (assumed premise) of oppressive conduct manifested by those incidents and the content of and making of the admissions he made in the call that commenced at 4:28pm on 26 May.
I disagree with the accused's contention that it was an incident of oppression that the complainant should even ring back the accused at all at 4:28pm. The preceding call had terminated in circumstances where the accused expressed that he was 'dumbfounded' by allegations raised (a matter which a jury might find exculpatory). In response the complainant said she would call him back. As I have indicated, this was not a threat. It was, rather, notice given to the accused that she would call back. This had both the design and the effect that the accused have the opportunity to compose himself, and to reflect. As the complainant said to him "I'll give you time to think about it and that's it."
The accused plainly had the opportunity to consider whether he should participate in any further dialogue, having regard to what had occurred in the recently terminated call. When the conversation resumed in the second call, he was acutely conscious of the potential consequences for him and his family if he made admissions. That was made apparent early in the call.
The last two incidents of oppression were identified in the accused's written submissions (sub-paragraphs 21(j) and (k)).
The first of these was that the complainant lied when asked whether she was alone. However, even though it is unnecessary for s 84 to be enlivened that the person seeking to elicit an admission acted improperly or unlawfully [9] , as I previously have said earlier in these reasons, this circumstance of deception could not itself be oppressive.
The second of these was the complainant's goading of the accused, to "be a man". But at the instances where this occurred, the complainant was responding to what appeared (to her) to be deliberately incomplete admissions by the accused (the first being that he had gone into the shower with her and the second being him only 'touching' himself). In substance she was challenging the adequacy of the complainant's statements of his recollection. When the transcript of the conversation is analysed, the goading was ineffective in the sense of influencing the disclosure of any more specific recollections of abuse than what had earlier been admitted.
In my opinion, this is an instance where, to adopt what was said in Deacon, such admissions as he made were the consequence of the accused's perception of psychological pressure which was a response to his predicament; not the product of the complainant's conduct. On the assumed premise for this part of my reasons, the Crown did negative (on the probabilities) a causal connection with her conduct.

[30]

Section 138

Section 138 of the Evidence Act provides: "(1) Evidence that was obtained-- (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning-- (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account-- (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."

[31]

The Accused's submissions

The accused's case on this provision was partly that 'improprieties' committed by both the complainant and the police officers Whiteley and Hallcroft. That engaged s 138(1) of the Evidence Act. An 'impropriety' in this sense was to be broadly construed, consistently with a dictionary definition, in the sense of 'not in accordance with truth, fact, reason or rule; abnormal; irregular, inaccurate, erroneous, wrong" [10] .
But alternatively, the accused relied upon s 138(2) as well. He argued that particular alternative was engaged even if the complainant was not engaged in official questioning [11] . Particular reference was made to s 138(2)(a). The accused's submission dovetailed with the submission advanced under s 84, namely that the complainant conducted herself knowing (actually or constructively) that the content and manner of her questioning was likely to substantially impair the accused's ability to rationally respond.
As to the complainant, she (improperly) used lies and put propositions to the accused which were (in an unspecified way) inconsistent with the version of events she had given to the police prior to May 2020.
As to the police officers, before giving the complainant the opportunity to speak to the accused, it was submitted that they should have, but apparently did not, warned or directed the complainant about certain things she should not do: she should not 'intimidate' the accused by stating falsehoods, ought not falsely represent her memory or create false impressions of events and ought not to cross-examine the accused beyond clarification of information given voluntarily. Counsel also argued, in effect, that if police was going to adopt a laissez-faire approach to superintending a complainant it had engaged, it should not benefit from any impropriety committed by the complainant.
The accused submitted that the complainant should be regarded as an 'agent of the state'. The litmus test (my expression) was whether the complainant would have had the conversation with the accused in other circumstances. According to her evidence, the complainant would not have done so. It did not matter whether she may have derived some incidental benefit to speaking with the accused: at least her primary purpose was to do a job for the police; to elicit admissions.
I asked Counsel for the accused whether (for the sake of assessing the asserted improprieties) the officers were required, in effect, to train the complainant up so that she might conduct herself as if she was an investigative official conducting an interview with the accused and queried whether there was some tension with between this suggested level of direction and his suggestion that she could be taken to have acted as an 'agent of the state'. Further, in response to the emphasis that the Accused's Counsel had placed upon the complainant's lies, I also raised with Counsel whether the warrant expressly authorised steps by the complainant (and police) to "conceal" the fact of the use of the device to record the conversations.
Counsel's response was to disclaim the suggestion that the complainant's conduct was to be assimilated with that of an investigative official. He further accepted the legitimacy of the investigative technique and acknowledged that some lies were acceptable from a person in the complainant's position. But, he submitted, this complainant had overstepped or crossed a line after which her conduct became 'improper'. He reiterated a point raised earlier in connection with s 84, that she had exploited the accused's emotional vulnerability knowing, or even being reckless as to the possibility that her conduct was likely to cause the accused to make the admissions. On the significance of the condition in the warrant, Counsel argued that her lies could only properly be tied to do what was necessary to conceal the fact of her use of a device. But the complainant had gone much further than this in her attempts to obtain admissions.
I also asked Counsel whether impropriety in the conduct of the complainant, or that of the officers was or could be measured against some breach of an internal police guideline. Counsel did not submit that any internal police guideline or protocol for pretext evidence had been breached. (DI Tickner had been asked about his awareness of such a protocol, but the effect of his evidence was that his personal experience of this technique had last occurred 15 years before).
Counsel for the accused had, in his written submissions, purported to reserve the opportunity to submit to the Court about the factors affecting the balancing exercise under s 138(3). In the event, Counsel did make oral submissions (in chief) on s 138(3) and especially the matters in (a)-(c), the accused submitted that exclusion of the evidence would not nullify the Crown's case.
As to 138(3)(d), the improprieties were grave. The police had given the complainant free rein to do what she wanted to do to procure admissions and had condoned her conduct. Admissions were sought at all costs and the Court should not lend its imprimatur to the police's approach that could be described as the ends justifying the means.
In relation to s 138(3)(h), there would have been difficulties obtaining the admissions without the improprieties, by which the pressure was bought to bear upon the accused. That weighed against inclusion.
As to s 138(3)(g), there was no disciplinary proceeding against the two police officers involved (and could be no proceeding - of any kind - taken against the complainant). That also weighed against inclusion. In all of the circumstances, it was submitted that overall the balancing exercise did not support inclusion.

[32]

The Crown's submissions

As a preliminary point, Ms Crown indicated that it was unnecessary for me to conduct a separate balancing exercise under s 138 (assuming s 138(1) was engaged) in respect to each individual admission. It was sufficient to consider the engagement of this exclusion with reference to the admissions in the aggregate.
The Crown submitted that the onus of establishing (on the probabilities) that evidence from the pretext calls was improperly obtained fell on the accused.
The Crown disputed all of the matters that the accused relied upon to sustain the asserted improprieties. Included in this was the submission (raised in the accused's written submissions but not in his Counsel's closing argument) that the complainant had asserted matters to the accused which were 'inconsistent' with what had been asserted in prior written statements.
The Crown contended that the complainant was not an "agent of the state". The Crown drew the Court's attention to what was said by Leeming JA and Simpson J in DRF. The police officers did not use the complainant to elicit admissions from a suspect who had previously refused to answer police questions. A warrant had been granted by Cavanagh J. The pre-Evidence Act decision of Swaffield v R; Pavic v R (1998) 192 CLR 159 was distinguishable at least because the recording occurred at the investigation stage, so that the accused had not been arrested nor charged and nor had he refused to be interviewed (and thus exercised his right to silence). The Crown acknowledged that for the calls on 26 May, Officers Whiteley and Hallcroft were present, that was only for the purpose of providing emotional support to the complainant and the form and content of the conversations occurred without their input. They did not 'script' questions. The telephone conversations might easily had occurred without police intervention to recorded but if that was not so, the actual content of the conversations would not likely have been materially different if the police had not arranged them.
In response to specific points raised by the accused (paragraphs 39-49 of the accused's submissions) about on the question whether the complainant was an 'agent of the state', the Crown submitted: 1. whether or not the complainant's initial gambit in the first conversation on 25 May amounted to a compound question, the accused denied it stopped, later the complainant either repeated or expanded upon some the allegations contained within that question and the accused's admissions or denials answered them; 2. the circumstance that complainant had not had, and did not wish to have, direct contact with the accused over many years did not indicate that she was an agent of the state; 3. her approach to the conversations on 26 May not be described as strategic and the circumstance that the conversations were lawfully recorded did not make her an agent of the state; 4. the conversation was not the functional equivalent of interrogation. The same type of conversation could have occurred in the absence of lawful sanction given the history of the relationship. The recorded conversations progressed in an organic manner; 5. that the complainant and (later) the accused were each emotional pointed against the comparison with the formal interrogation (and was an indicator that the admissions were voluntary and reliable); 6. the accused's 'right to silence' was not abrogated. He had not previously spoken to police and as a result of the issue of the SD warrant, he had no right not to be recorded (Em at [78]). Further he could have terminated the calls at any time.
Other aspects pointing away from a conclusion that she was an 'agent of the state' were her effective disclaimer that she was not an agent (contained in the briefing documents). The officers did not provide her with a script: the content of the conversations was haphazard. The Crown did not accept that the causal connection referred to by the accused - whether the conversations would have occurred but for the involvement of police - was not conclusive or decisive. The statement of principles in Pavitt v The Queen (2007) 169 A Crim R 452 ('Pavitt') and later authorities did not indicate that this was so.
Ms Crown disputed that any criticism could be made of the officers for failing to counsel or instruct the complainant (short of scripting what she would actually say to the accused). It would likely impede, perhaps by distraction, the complainant in her quest for admissions; raising a level of self-consciousness and risking her apparent authenticity which was necessary for the effectiveness of this sanctioned mode of evidence-gathering.
Ms Crown submitted that there were no improprieties (by the complainant or the officers) and, alternatively, no improper questioning. She reiterated that the complainant should not be regarded as an agent of the state. In written submissions the Crown distinguished the complainant's function or role from an 'informer', which had been the subject of consideration in R v Broyles [1991] 3 SCR 595.
The Crown referred me to passages from Em, DRF and Pavitt in submitting that the nature of this investigative technique inevitably entailed deception, and to use the words of Gleeson CJ and Heydon J in Em, "secret recordings often could not be made without some kind of trickery".
On the counterfactual (premised upon the Court finding that there were improprieties or was improper questioning), the Crown addressed some of the matters in s 138(3).
As to s 138(3)(a), the probative value of the evidence was high. In this regard, in the two conversations on 26 May, separated only by 14 minutes, the accused had essentially changed his position from one of non-recollection of assertions put to him, to a position where he accepted that he had acted inappropriately (even disgustingly) and had engaged in some specific incidents as had been alleged in the counts on the indictment and was apologetic for it. About the last point, regarding the apologies, this was not a situation where the accused had raised, on the voir dire, any alternative explanations for his apologies (such as his only feeling sorry for the complainant's feelings; and not the accuracy of her assertions about what he did).
As to s 138(3)(b), the evidence was very important to the Crown case. In the absence of complaint evidence (and tendency evidence), the jury would inevitably be directed that it would have to accept the complainant's evidence beyond reasonable doubt. The jury's assessment of her credibility and reliability would likely determine the case. The complainant's evidence in the Brief of Evidence, as I have observed, had been the subject of no less than four witness statements by the complainant as at the time of the hearing of this application (before me). Conceivably, a submission might be raised for the accused that the volume of witness statements betokened a weakness in or general lack of reliability in her recollection. Evidence of admissions would significantly enhance the Crown case and reduce, to a degree, its entire dependence on how the complainant might be viewed by the jury as a witness. This submission struck me as effectively echoing observations made by Simpson JA in DRF at [90]-[91].
As to s 138(3)(c), the nature of the proceeding (criminal) concerns serious child sexual offences. The accused's s 143 Defence Notice of Response indicated his position that he took issue with the factual basis of allegations of each count. The calls were probative of the principal issue on each count: whether the accused engaged in the acts sustaining each offence.
As to s 138(3)(d), the Crown reiterated its position that there were no improprieties but on the counterfactual, Ms Crown rhetorically asked how any improprieties could be measured. About the complainant, she was a civilian and fairly young one. There was no evidence to indicate what the police did amounted to a non-compliance with any internal procedure or regulatory requirement.
As to s 138(3)(e), the Crown submitted that if there be any improprieties or improper questioning, this or these things were committed in the course of a legally sanctioned investigative technique involving civilians. In relation to the complainant's conduct, the accused's Counsel had elided a distinction between improper conduct and deliberately improper conduct: the latter required knowledge of what it was that made the conduct 'improper'. As to the conduct of the officers in allowing the complainant free rein, it was not right to assimilate the officers' passivity by the standard of what they should have done if, for example, they had seen conduct by the complainant engaged in by investigating officials during official questioning, but rather by reference to what they should have done when observing the conduct of a layperson engaged in a lawful investigative technique. If (contrary to its primary position) the officers behaved improperly in the face of the complainant's questioning, it could not be said that this was in defiance of any proven internal procedure or guideline. That suggested that there was no deliberate impropriety; in the sense of knowing that what they were doing (or not doing) was wrong. (I interpolate to say that it was not put to Officer Hallcroft that she knew that her passivity in the face of the complainant's questioning was wrong). There was, also, little to indicate any recklessness in any impropriety by the officers.
As to s 138(3)(f), there was nothing in the ICCPR concerning the right to silence at the investigative stage. Even in a trial, the statement in Art 14 par 3(g) about a person not being compelled to testify against himself or confess guilt has nothing to do with a right to silence before trial.
As to s 138(3)(g), it was unanswerable that there was no disciplinary proceeding against the officers (which the Crown contended was a circumstance not supporting the accused's argument of impropriety). However, if, on the counterfactual, the Court found that there was impropriety. As to the position of the complainant, no proceeding, of any kind, could be brought against her. To the extent that the Court was focussed only upon her impropriety (in her own right), this statutory factor would be neutral.
As to s 138(3)(h), the Crown acknowledged that without the use of the surveillance device, it would have been difficult to procure admissions. The Crown did not seriously contend that if improprieties were established, then this factor would not also weigh against inclusion.
If the balancing exercise was to be engaged in, viewing the admissions as a whole, the desirability of admitting them outweighed the undesirability of admitting improperly obtained evidence.

[33]

Was the complainant an 'agent of the state'?

Before turning to analyse s 138, I will initially address the accused's contention that the complainant was an 'agent of the state'. This anterior question bore on the bases of exclusion under each of ss 138 and 90.
This expression (derived from Canadian law) was canvassed by the Court of Criminal Appeal in Pavitt where the majority (McColl JA and Latham J) said (at [70(f)]-[73]): "(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 …; ….. 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. 72 Further, while Iacobucci J did not see it as necessary to recognise a special test for cases involving a victim speaking to the accused, in our opinion, with respect, it might be thought that conversations in such circumstances were more likely to be reliable as the suspect would have no occasion to boast, seek to big note him or herself and, to the extent the victim put allegations that the suspect had committed a criminal act vis-à-vis him or her, the suspect would more readily reject the proposition if it was false. 73 Police could not anticipate that a suspect would readily make admissions to a person asserting he had committed a criminal act against him. As Giles JA said in Em v Regina (at [68]), "[o]rdinarily persons do not make admissions against interest unless they are true."
On the facts in Pavitt, the majority found that the complainant was not an agent of the state. At paragraphs 80-82, the Court said: "…we find it difficult to conclude that the complainant was an agent of the police. Superficially, looking merely at the relationship between the complainant and the police, he was their agent, because the conversation would not have taken place as it did, that is it would most probably not have been recorded if the police had not obtained a warrant and arranged for the complainant to participate in it. However even if the complainant was a state agent, in our view he did not exploit any special characteristics of his relationship with the appellant. 81 Looking at the relationship between the complainant and the appellant, we cannot say that the conversation would have been materially different if, as a matter of form, the police had not arranged it. The men had a relationship going back to their childhood. The appellant exhibited no unease in participating in the conversation. He was relaxed throughout. He could have terminated the conversation at any time. We cannot discern any inequality in the conversation. If anything, it is the complainant who appears vulnerable, being in an increasingly emotional state. 82 Nor would we conclude any parts of the conversation were the functional equivalent of an interrogation. The complainant had clearly formulated ideas of what he wanted to say to the appellant during the conversation. The evidence did not support the proposition that the police scripted this long conversation. To the extent exhibits 4 and 5 correspond with exhibit F, we cannot conclude that critical parts of the conversation were scripted by Detective Woodbridge, rather than being notes recorded by her of critical parts of the exchange. Further there are other parts of exhibit F the responses to which arguably constitute admissions which do not appear in exhibit 4 or 5. We cannot accept Mr Stratton's submission that the complainant was a "puppet" participant in the conversation."
In R v Burton [2013] NSWCCA 335 Simpson J (with whom RA Hulme J and Barr AJ agreed) reviewed Pavitt and applied it. At [124]-[126], her Honour determined that on the facts in the case before her Honour: "… 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. 125 The 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. 126 Applying 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.
In DRF, the Court of Criminal Appeal was effectively hamstrung by a concession made by the Crown at first instance (which it did not seek to resile from on appeal) that a complainant was an 'agent of the state', but Simpson JA (and Leeming JA separately) clearly expressed doubts about the correctness of that concession on the facts.
Further, in Lyon (a Pseudonym) v The Queen [2019] VSCA 251, the Victorian Court of Appeal determined that the complainant in that case could not be regarded as an agent of the state in circumstances (at [29]-[30]) where the only police 'input' to the conversation was propose that the call (to the suspect) occur, to outline its purpose and supply the recording equipment.
In this case, the question is not whether any conversation would have occurred between the complainant and the accused at all, but for the use of the recording device. It is not to be doubted that police involvement and the use of the device created a situation in which a conversation could occur. She had not previously rung and confronted the accused without police involvement. Further, police proximity to the complainant effectively provided support to her and was apt to provide her with a 'safe space'. The officers' involvement gave the complainant confidence to call the accused which she would not otherwise have had. In short, police involvement undoubtedly facilitated the conversation and but for that facilitation, it is (at least) doubtful whether the complainant could or would have instigated a conversation with the accused at all. So to say, the use of surveillance device created the opportunity for a conversation to occur. Police provided the means by which the conversation could occur and took advantage of the situation to have its content recorded on the contingency, which materialised, that admissions were made.
But the real question is whether the content and tone of the conversation that occurred (as sound recorded) would have been materially different if the police had not arranged it. In my opinion, that was unlikely. I find that it is probable that acknowledging the complainant's awareness of the police's strategy to obtain admissions, which dovetailed with her own desire to obtain them, the content and flow of the conversation was very likely to have been the same if the circumstances were such that the conversation occurred without the sound recording. I accept the evidence of both the complainant and Officer Hallcroft. The officers did not provide a script to the complainant. Far from it. They were at pains to repeatedly get the complainant to acknowledge verbally and in writing (on the briefing documents) that she had no restraint upon what she could say. It was immaterial that in the important conversations on 26 May they were in the same room. The complainant's evidence that they said nothing to her, and did not make any facial or other gestures, was unchallenged. Both the complainant and the accused were emotive. I find that it was most unlikely if, on a counterfactual, the complainant had had telephone calls with the accused wanting to confront him about what she believed he had done to her on her own volition, and without the sound recording (and even encouragement by the police), the conversation would have been materially different to what it was.
In support of these conclusions, I place some weight also upon the circumstances (established by the signed briefing documents and the testimony on the voir dire by the complainant and Officer Hallcroft) that the complainant acknowledged that she was not calling the accused on behalf of the police officers and that she was not the recipient of advice about the nature and content of what she should say. Although her primary motive was to extract admissions, which was commonly shared by police, she had her own more private interest in giving vent to long pent-up feelings which I regard as a motive that she had prospectively and was not just a retrospective insight. When she said things like she was 'not coping' or needed 'closure' or her life to move on as her reasons for 'wanting to know why', I consider a jury might regard such expressions as authentic in reflecting her state of mind and did not (individually or collectively) simply amount to a calculated inducement to elicit admissions. My point is that her motives, or purposes were mixed. In short, she was not a mere functionary or puppet of the police.
Finally, as was emphasised in Pavitt (at [71] and [73]) the circumstance that the accused had not yet been charged; nor had previously refused to speak to police and police had no idea whether he was likely to make admissions, militates against the conclusion that she was an agent of the state.
The complainant did not act as an agent of the state.

[34]

Were the admissions obtained 'improperly"

Some context for consideration of the issues concerning this provision included the circumstances that:

the evidence of the recorded admissions was procured through a legally-sanctioned procedure;
the warrant that sanctioned the procedure contemplated and authorised what might bluntly be characterised as deceptive conduct, in the sense that the complainant (and if necessary police) were authorised to conceal matters that might disclose the use of the warrant;
my findings that there was no oppressive conduct by the complainant;
police officers did not act to circumvent a prior exercise by the accused of his right to silence;
the complainant did not act as an 'agent of the state';
there was no proof of internal police guidelines or instructions to persons such as the complainant that were shown to be breached;
the accused's concession that the complainant's conduct was not, for the purpose of evaluating its propriety to be compared or assimilated to the construct of the hypothetical reasonable investigative official conducting official questioning in the accusatorial process.

By s 138(2), admissions are deemed to be obtained improperly if the complainant's questioning is regarded as being improper (by reason of either of the matters in (a) or (b)). I will deal with the suggested application of this deeming provision first.
In my opinion, and for reasons substantially indicated in my consideration of s 84, the accused did not establish that the complainant did anything whereby she knew (actually or constructively) that her conduct was likely to substantially impair the accused's capacity to respond rationally to the questioning. In short, the accused did in fact respond rationally to her questions.
However, notwithstanding the context of admissions being made under lawfully-sanctioned sound recordings, I find that some of the complainant's statements, individually or in combination, were false in the course of her questioning (albeit unofficial questioning) of the accused which either she knew (or should have known) were false and that making them was likely to cause the accused to make the admissions. I refer to her statements that she was alone, that she had not told anybody. The accused's admission was made during or in consequence of questioning is deemed to be misleading. Although, as I have found, the complainant should not be regarded as an 'agent of the state', it remains the case that the Crown is seeking to use evidence obtained improperly, or in consequence of the complainant's (deemed) impropriety, for the purposes of s 138(1).
This would entitle me to go straight to the balancing test under s 138(3) about which the Crown bears the onus of proving that the desirability of admitting the evidence outweighs the undesirability of admitting evidence improperly obtained.
However, the accused seeks to go further in proving impropriety by the complainant and by the two police officers, independently of s 138(2).
In Tofilau v The Queen (2007) 231 CLR 396, the High Court considered the admissibility of confessional evidence from an undercover operation under the common law. Some observations from that judgment are in point.
At [5], Gleeson CJ observed: " It would be clearly wrong to suggest that the only kinds of admission used in evidence at criminal trials are those made to police officers in a context of a conscious decision not to exercise a "right to silence". Admissions, which may turn out to be very damaging, are often made in circumstances where the maker of the admission is unconcerned with legalities, and may not even realise the significance that later will be attached to what is said. Secondly, the use by the police of deception in the hope of eliciting admissions is not new. …. All forms of covert surveillance, many of them authorised (subject to safeguards, such as a requirement for judicial approval) by statute, involve a kind of deception. Interception and recording of telephone conversations often produces evidence of admissions tendered at a criminal trial, as well as circumstantial or direct evidence of criminal activity. The parties to those conversations speak in the erroneous belief that they are not being overheard. They have no opportunity to consult a lawyer, or to take advice on what they should or should not say. They are not given any warning that what they say may be used against them. They do not waive any right to silence. Yet, if a suspect, in an intercepted and secretly recorded conversation, makes an admission, that admission is ordinarily and rightly regarded as voluntary. At least, it is not regarded as involuntary simply because the person making the admission is the victim of a form of deception
In Kadir v The Queen (2020) 267 CLR 109 ("Kadir") the High Court said (at [14], citations omitted): "Recognition that s 138 is not confined to evidence obtained by the improper or illegal conduct of the police raises a number of issues. Whether evidence has been obtained improperly in such a case is determined by reference to "minimum standards of acceptable police conduct". The standard by which the court assesses the impropriety of the conduct of private individuals is less clear. That question is not raised in these appeals …."
In relation to the complainant, I have noted that there was no debate at the hearing, and especially in the course of the parties' closing submissions, as to whether and to what extent propositions of specific sexual offending put by the complainant to the accused were consistent with what she had said in the four police statements she had provided. I also noted that the issue was joined by the Crown (in its written submissions) about the correctness of the accused's contention. In those circumstances, and without the guidance of the parties' respective Counsel, I do not consider it necessary to decide whether and to what extent that which she put to the accused was inconsistent with prior assertions of wrongful conduct.
Whilst acknowledging and indeed applying s 138(2), I would not have thought that any lie that may induce an admission by a suspect would be improper per se, especially in the present context of covertly recorded conversations where, to paraphrase Leeming JA in DRF, the legally sanctioned procedure is built upon a level of deception.
Having considered the accused's other submissions, but for the deeming provision, I would not have found that the complainant acted improperly, substantially for the same reasons as I did not regard her conduct as oppressive.
I now turn to the conduct of the police officers. I am not persuaded that they acted improperly. To suggest that police officers acted improperly engages Briginshaw principles; especially in view of potential reputational damage and even exposure to disciplinary proceedings.
I am unpersuaded with the accused's contention that a warning should have been given. Contrary to his Counsel's protestation, the types of warning that it was suggested these officers should have, but did not, give to the amounted to a form of coaching or training in order to get the complainant up to the standard passably resembling that of an investigator conducting official questioning. But on the other hand, the accused complained that she was already being used by investigators as an agent of the state. It struck me that the accused wanted to have it both ways.
I accept that the police officers gave the complainant free rein. There were good reasons for them for doing so. This investigative technique, to be effective, practically depended upon someone in the complainant's position appearing as natural or authentic as possible, to give the process a simulacrum of a 'real conversation' lest the deception being perpetrated upon the suspect be exposed. Cluttering the complainant's mind with admonitions as to what she could not or should not do during the course of conversations could be counter-productive.
As it happens, I have found that, but for the deeming provision, the complainant did not act improperly. That means that given that the case against the officers (on the basis I have described) hinged upon their (virtually) vicarious responsibility for the complainant's conduct, I conclude that they did not act improperly.

[35]

The balancing exercise

The result, so far, is that the balancing exercise in s 138 is conducted on the sole basis of the deemed impropriety I have referred to.
I am not persuaded that I must conduct the balancing exercise in respect to each and every one of the admissions identified. No authority was cited by the accused in support of that submission. It strikes me that application of such approach would actually or potentially give rise to incoherence.
I substantially accept the Crown's submissions in relation to s 138(3)(a) - (c) (incl). The observations of McColl JA and Latham J in Pavitt (at [72]-[73]) and of Simpson JA (Schmidt J agreeing) in DRF (at [90]-[91]) regarding the importance of and the significance of the admissions are in point. I would add to that, the circumstance that the accused's position qualitatively changed in the second of the main calls on 26 May (in which multiple apologies were made) in comparison to the first of the calls (which was replete with denials and statements of non-recollection), which a jury may regard as affecting his credibility and, indirectly, the reliability of the complainant. They strongly point in favour of the admissibility of the admissions.
On the aspect of the gravity of the contravention under s 138(3)(d), I do not regard the false statements to be overtly serious. That is because if they were not made, and the truth was told, I have no doubt that the accused would have refused to have participated further; thereby negating the investigative procedure. As I pointed out, the nature of the investigative technique was inherently built upon deception and lies where they were required to sustain the deception. This factor is therefore, I think, neutral.
The lies were deliberate, for the purpose of s 138(3)(e) and therefore weighs against admission.
I agree with the Crown that the impropriety was not shown to be contrary to rights of a person recognised by the ICCPR. This therefore weighs in favour of admissibility.
Because of the nature of the impropriety, this analysis proceeds upon the circumstance that no disciplinary proceeding has or is likely to arise against either of the police officers is neither here nor there. Their impropriety was to stand by whilst the complainant lied and deceived the accused when lying and deception was the essence of the investigative technique.
As to the complainant, the utility of this factor is limited. The factor is designed to deter police misconduct. As the High Court observed In Kadir (at [16]): "The significance of the availability of other proceedings in the case of misconduct by a private individual to the wider public interest under s 138(1) is less apparent".
I accept that it was very difficult for the admissions to be obtained without false assurances held out to the accused that he was not at risk in making admissions. Ordinarily, this was a matter weighing against admissibility [12] . However, that depends. The High Court observed in Kadir (at [20]) that where the impropriety or illegality was neither deliberate nor reckless, the difficulty of obtaining the evidence lawfully is likely to be a neutral consideration. In this case, however, the lies and deception were deliberate.
Finally, it may be debatable whether any unfairness to the accused is part of the weighing exercise under s 138(3) for demonstrating the undesirability of admitting the evidence [13] . In that regard, for reasons to be articulated, even if it was, I would not have found unfairness.
Weighing these matters altogether, I find that the desirability of admitting the evidence outweighed the undesirability of admitting it in the way it was obtained.

[38]

The Crown's submissions

The Crown commenced its submissions on this provision by stating that a Court's consideration of the probative value of evidence proceeds from the premise that the evidence is taken at its highest for its effect on assessing the probability of a fact in issue [14] .
The Crown contended that what was said in Pavitt at [70] was not relevant to considering s 137 (see Pavitt at [89]). Indeed in that case, the accused did not even invoke s 137. At any rate, the majority in that decision stated that the pretext call contained powerful evidence corroborative of the complaint's testimony.
The Crown took issue with the proposition that the two limbs of s 137 needed to be assessed with reference to each and every admission. That would impermissibly result in each admission being viewed in isolation when the risk of the accused not receiving a fair trial has to be determined by the circumstances as a whole.
Similarly in this case, the Crown submitted (as it did in relation to s 138(3)(a)) that the probative value of the conversations was high.
As to the danger of unfair prejudice, the Crown argued that the question was whether it had quality which was such that a jury might give more weight to it in its assessment then it warranted since it was apt to invite the jury to draw an inference about some matter that would ordinarily be excluded from the evidence [15] ; with the result that some harm would fall upon the accused because of the risk that a jury would consider the evidence improperly or in some other unfair way [16] .
The Crown submitted that the recorded conversations would not unacceptably provoke an irrational, emotional response or the jury giving the evidence more weight than it should have. It did not matter that what was said by the accused was potentially open to more than one interpretation or was capable of giving rise to competing inferences: it was illogical to contend that the existence of alternative inferences robbed or diminished the evidence of the accused's words of probative value [17] .
In her oral submissions, Ms Crown submitted that there can and will be directions to the jury about the proper use of admissions [18] . Further, there were additional directions that might be made about how the jury might treat accusatory statements to an accused [19] . Such directions could alleviate the danger of unfair prejudice.

[39]

Consideration

The accused bears the onus of having the evidence excluded under s 137 on the basis of the danger of unfair prejudice outweighing probative value of the admissions [20] .
I agree with the Crown that it is inappropriate to consider s 137 through the lens of individual inquiry into each and every admission the Crown relies upon (and which I am satisfied constitutes an 'admission'). Whether evidence is apt to give rise to the risk that an accused cannot obtain a fair trial should be a holistic inquiry and to deal with each admission individually would be artificial. The inquiry needs to proceed with reference to the evidence as a whole [21] .
I also agree with the Crown that s 137 is not engaged simply because admissions are ambiguous; especially in the sense that there may be competing inferences that are even favourable to an accused (or at least may nullify the adverse nature of the inferences relied upon by the Crown) [22] . I assume that the inferences sought by the Crown will be drawn [23] .
For reasons indicated in my treatment of s 138(3)(a)-(c) above, I consider that the evidence has significant probative value.
I do not find that accused's submissions about the danger of unfair prejudice to be persuasive. The jury will be warned or directed as to the uses or misuses of admissions in the circumstances in which they were made. The submission that the admissions might be used by the jury to find critical disputed facts in the Crown's favour or adversely to the accused's credit (or character) effectively articulates an apprehension that the evidence will make it more likely that the accused is convicted; and that is not the relevant test [24] . Whilst the possibility cannot be discounted that the jurors might be more sympathetic to the complainant, the jury will be specifically warned about the importance of determining the issues dispassionately. At any rate, it is also possible that the jury might agree with any submissions conceivably advanced on the accused's behalf about the significance (to the complainant's credibility) of false statements of the complainant in procuring the admissions or any inconsistencies as between what she put to the accused and what she told police.
Finally, I now address a point raised by the accused's counsel to the effect that the Crown's expedient of excising certain content of the recorded conversations and, in particular, to withhold that content before the jury. I understood Counsel for the accused to contend that this would be either prejudicial or unfair to the accused. It would, so the argument goes, mean that the jury could not view the admissions in context and, conceivably, expose to the jury some oppressive or improper conduct of the complainant such as might sap the jury's view of her credit or reliability.
I agree with the Crown's submissions firstly, that it is a common place for inadmissible parts of recordings, such as interviews, to be redacted where the parts are inadmissible. Secondly, I am not persuaded that the redacted parts are necessary to be put before the jury in order to place the admissions in their proper context. Thirdly, I do not find persuasive that the solution to the accused's argument that the prejudicial effect of the admissions is the placement of additional prejudicial material before the jury.
I am not persuaded that the danger of unfair prejudice outweighs the probative value of the admissions.

[41]

The Accused's submissions

As with his submissions on s 137, most of what the accused submitted about this exclusionary provision was addressed in his Counsel's written submissions.
The accused submitted that there would be unfairness in admitting the evidence of the admissions made by him since: (a) his right to silence had been impugned; (b) the complainant induced him to make admissions; (c) the admissions are likely to be unreliable; (d) the totality of the material (including parts which the Crown no longer relies upon) would need to be before the tribunal of fact to enable it to assess the reliability of the admissions.
The accused cited another passage from Niguidula (No.3) at [115] where, with reference to admissions were made to third parties recorded by police, Dhanji J emphasised as very material considerations to the application of this exclusion, both the reliability of the evidence but also the conduct of authorities in allowing a person to speak when they would otherwise have remained silent.
The accused emphasised two matters in particular. The first was the denial of procedural rights to the accused. The second was the questionable reliability of the admissions.
The accused invited me to find that the appellant acted as an 'agent of the state' before finding that the admissions were elicited in a way that contrasted with naturally flowing conversation. Whilst acknowledging that caution should be used when deploying labels, the accused submitted that I should find, as a matter of fact, that the complainant did act as an 'agent of the state'. She well understood that her 'job', or 'mission' was to obtain admissions for police; even if, in the events that occurred, she derived a catharsis or therapeutic benefit of confronting the accused from a 'safe space'. That experience was only something recognised in retrospect. Prospectively, her purpose was to obtain admissions. But for the availability of the warrant and the authorised sound recording, she would otherwise not have had the conversations that she did with the accused. This last submission was supported by all of the circumstances; including the absence of any recent direct contact between complainant and accused; an inference that should be drawn that the complainant did not want the accused to return her call at a time of his own choosing; the complainant actively seeking to elicit confessions in a way that was functionally equivalent to an ("coercive") interrogation (without non-leading questions and without the "manipulation" of false statements, threats and other tactics); and her abrogation of any remaining right to silence after the first of the conversations on 26 May. Finally, she was motivated by animosity towards the accused.
The accused also submitted that the unfairness could not be cured by any direction or with any careful editing of the conversation.
Further, the accused submitted that the form of the conversation, and more particularly what the complainant asked, meant that any attempt to derive meaning from the accused's response, short of an unambiguous acceptance of responsibility, would be unreliable. For example, there were 'compound accusations' (initially) and a later barrage of allegations. This was fairly to be viewed in a context of two estranged people and an understandable expectation in the accused that the calls were likely to be no more than of the 'catch up' variety.
The accused submitted that the exchanges evident in the conversations should be characterised as functionally equivalent to an investigation. The content and tone of questioning was interrogatory and unrelenting.

[42]

The Crown's submissions

The Crown submitted that the onus of proof for this exclusion rested upon the accused (on the probabilities) [25] .
The Crown emphasised the findings of the High Court in Em and also the Court of Criminal Appeal in DRF (at [83]). The former decision indicated that the focus was upon the fairness of using the evidence at trial; not the circumstances in which the admissions were made (including the means by which they were procured).
A factor relating to the fairness of using admissions is the reliability of the admission. The Crown submitted that the admissions were reliable; given that they were audio-recorded and procured through the legally sanctioned surveillance device warrant.
The Crown endorsed a view by Mr Odgers SC [26] that the trend of recent authority (in both the High Court and in the New South Wales Court of Criminal Appeal) was such as to limit the circumstances in which it might be said that there was unfairness by reason of police using an agent to circumvent a suspect's right to silence and further, the use of any trickery through the means of a pretext call did not require exclusion under s 90 (even as it contends there was no trickery to elicit admissions and noted that the accused had not previously asserted a right to silence).
The Crown submitted that there was no denial of procedural fairness rights. To the extent that the High Court's decision in R v Swaffield; Pavic v R (1998) 192 CLR 159 might have suggested otherwise, it was a common law decision pre-dating s 90 and the current approach is found in Em. The Crown reprised its argument that the complainant was not an 'agent of the state' and did not perform the functional equivalent of an interrogation.
The Crown challenged the accused Counsel's submission regarding the decision of R v Burton and argued that findings that were made in that decision (at [124]-[132]) actually supported the Crown's position and should be followed here. Those findings included a rejection of the proposition that the complainant was an agent of the state, admissions were not 'elicited', the exchanges did not amount to the functional equivalent of an interrogation and there was no derogation from the accused's right to silence when he was free to terminate the call at any time
The Crown responded to the accused's reliance upon DRF and submitted that none of the examples cited as being on the 'spectrum of more or less deceptive conduct' arose: (a) the complainant did not choose a time at which the accused was particularly vulnerable; (b) she did not use deliberately ambiguous words; (c) there were no unrecorded gestures or facial expressions to enhance any ambiguities; (d) this was not a case of the complainant incorrectly believing she was more seriously violated (and if there was this would be a matter for a jury to consider); (e) any animosity in the complainant would be a matter for the jury to consider.

[43]

Consideration

The accused bears the onus of demonstrating that it would be unfair to him to use the evidence [27] .
The covert recording of a conversation does not, of itself, make it unfair to use the evidence, even if the accused would not have spoken if he knew the conversation was being recorded [28] .
I have already considered the question whether the complainant could be regarded as an agent of the state. But even if the complainant here could be regarded as an agent of the state, that circumstance is not decisive in considering s 90. In DRF, the Court of Criminal Appeal assumed (on the basis of a Crown concession at first instance) that the complainant was an agent of the state. That did not prevent the Court concluding that there was no unfairness ([84]). This was so notwithstanding findings that the police encouraged the complainant to seek and elicit admissions and had the intention to circumvent the accused's right to silence after the accused had expressly declined the opportunity to be interviewed.
The point about negation of the accused's procedural rights (and argument for exclusion) was stronger in DRF than it is in this case, given that in that case the accusatorial process had begun and the accused in DRF had expressly exercise the right to silence and it could plausibly be argued that the police were using the complainant to outflank the accused's exercise of a right to silence. Here, however, the investigation had not reached the point of the accused's arrest and the accusatorial process had not begun. The circumstance that there was a breach of the accusatorial process (the accused's refusal to participate in a police interview) was pivotal to the determination in Sidaros v The Queen (2020) 15 ACTLR 64 that admissions were obtained in circumstances with regard to community standards (at [62])
It is not to the point that the issue of exclusion be decided on the basis that the accusatorial process should have already commenced. In Gahani v The Queen (2022) 370 FLR 485, the Northern Territory Court of Criminal Appeal (at [107]) rejected an argument raised by Counsel for the accused in this case, to the effect that police already had sufficient information to arrest the accused and offer him the opportunity to participate in an officially recorded interview as a basis for exclusion under s 90.
In DRF, Simpson JA (Schmidt J agreeing) concluded (at [98]) that it remained the case that what the accused said was reliable and the recording was reliable. The use of the sound recording was authorised by SD warrant, no coercion was practised upon the suspect.
In the same case, Leeming JA (Simpson J agreeing on this point) conceived that in a context where a level of deception was integral to the investigative technique, circumstances could arise where 's 90 unfairness' was found. His Honour suggested a range of scenarios (which I do not take to be exhaustive) as to circumstances where unfairness could be discerned.
I agree with the Crown that none of those circumstances were demonstrated here. I have rejected an argument of 'situational' vulnerability or deliberate ambiguity. Further, although the accused's Counsel suggested inconsistency between her assertions of sexual misconduct to the accused and what she had told police, I did not discern any 'inflated' forms of sexual abuse being put to accused that had not been already raised in the complainant's witness statements; which might have been indicative of any deliberate exaggeration of misconduct when she spoke to the accused.
All of the matters identified by Simpson JA in DRF apply here.
I am not persuaded that it would be unfair to the accused to use the admissions.

[47]

The Crown's application

This application centres upon the italicised part of this statement. The Crown does not intend to ask the complainant when she lost her virginity but brings this application on the contingency that the complainant might volunteer that matter.
It is common ground that, on the assumption that this part of her evidence was relevant (which matter I will return to presently), it would infringe the prohibition against evidence of sexual reputation under s 294CB(2) of the Criminal Procedure Act 1986 (NSW) and would therefore be inadmissible (under s 294CB(3)). It is also common ground that the evidence would fall within one or both of the exceptions in s 294CB(4)(a) or (b). In this regard, the Crown noted, and I accept, that it would only be the complainant who would likely refer to the timing for the loss of virginity and in that circumstance, it was inconceivable that the Court might find that the probative value of the evidence would not outweigh any distress, humiliation or embarrassment the complainant might suffer as a result of the admission of this evidence.
What divides the parties on this application are the accused's objection to this anticipated evidence, which was put on two bases, that: (a) the evidence is irrelevant; and (b) the evidence would be excluded under s 137 of the Evidence Act.
On the issue of relevance, the Crown submitted that the impugned part of the statement was relevant to her sexual experience or lack of sexual experience in the context of the alleged offences on all counts on the indictment; and the events alleged to form part of a connected set of circumstances in which the alleged sexual offences were committed.
On the same issue, the accused argued that the statement was irrelevant (and therefore inadmissible). The state of her virginity, or loss of it, when the complainant was aged 10 or 11, in 2002 or 2003 did not affect the assessment of the probability of any fact in issue in the case. This was not the type of case that the timing for a loss of virginity might be relevant, such as when a complainant might be pregnant and the proximity of that event to an alleged offence was in issue.
In my opinion, the evidence is relevant, on what is a relatively low threshold. As I explained when setting out the background, the complainant appeared to be using the status of her virginity or (alternatively) her loss of it, as a reference point to help her recall the time, or period of the escalation of the alleged offending conduct, essentially, from acts of digital penetration to acts of penile-vaginal intercourse. It was also, with some of the other matters she described in the part of paragraph 18 that I have reproduced, part of her attempt to elucidate details associated with that escalation in the nature of the offending (such as the fact or otherwise of her bleeding). If, as apprehended, the complainant uses this detail as a reference point for whether and when offending occurred, it would be for the jury to determine its significance when deciding whether the events (and in particular, the escalation in the gravity of sexual acts she described) occurred. It would also be for the jury to determine how the complainant's use of this reference point may affect her general credit and reliability, so relevance is also established under s 55(2)(a) of the Evidence Act.
The accused's second ground of objection was s 137 of the Evidence Act. His Counsel submitted that any statement along these lines would be apt to incite an emotional response in the jury and may instil a desire in the jury to punish the accused. He submitted further that this statement had low probative value. As to the last point, the complainant was already using, or trying to recite, other matters that aided her recollection of how and when forms of sexual abuse were allegedly perpetrated upon her.
The Crown submitted that there was no risk of prejudice. The trial judge could direct the jury, amongst other things, as to its care in not misusing any reference by the complainant to the status of her virginity. It would likely accord with the common sense and life experience [29] of jurors that most 10 or 11 year old girls would be virgins, so it is difficult to conceive that they would be especially bestirred or shocked by any revelation by the complainant that she remained a virgin prior to that point in time when she alleges that acts of penile-vaginal intercourse started.
When deciding an application under s 137, the judge must assume that the evidence is accepted and is thus credible and reliable [30] . As I have indicated, the revelation of the virginity, or lack thereof, at the time of the offending was capable of itself proving or reinforcing other proof that alleged offending did occur.
On the aspect of a 'danger' of 'unfair prejudice', I agree with the Crown's submissions that such danger is slight. I am not persuaded that the probative value of the impugned evidence is outweighed by the danger of unfair prejudice.
On the contingency that this evidence may be given by the complainant, I would allow the Crown to rely upon it.

[48]

Endnotes

Under the Evidence Act 1995 (NSW), s 192A
For example, R v Rumsby [2023] NSWSC 229 at [80]-[102]
Em v The Queen (2007) 232 CLR 67 ("Em") per Gummow and Hayne JJ at [109]; applied in Fantakis v R [2023] NSWCA 3 at [466]
This was an application of the maxim 'noscitur a sociis' and the related maxim 'copulatio verborum indicat acceptationem in eodem sensu', as described in Deputy Federal Commissioner of Taxation v Dick (2007) 64 ACSR 61; [2007] NSWCA 190 per Spigelman CJ at [12]-[13]
S Odgers, Uniform Evidence Law (18th ed) ("Odgers") [EA.84.120], p 661
This maxim is another application of the noscitur a sociis maxim: Deputy Federal Commissioner of Taxation v Dick at [13]
Douglass v R [2020] NSWCCA 284 per Rothman J at [140].
Ibid at [151]-[154]
Ibid at [138]
Parker v Comptroller-General of Customs (2009) 83 ALJR 494; [2009] HCA 7 per French CJ at [28]
Lyon (a Pseudonym) v The Queen [2019] VSCA 251 at [36]
Mann v R [2023] NSWCCA 256 at [103]-[106]
Odgers [EA.138.270], pp 1400-1401
IMM v The Queen (2016) 257 CLR 300 at [47]
The Queen v Dickman (2017) 261 CLR 601 at [48]
R v Bauer (2018) 266 CLR 56 at [73]
R v Burton [2013] NSWCCA 335 at [156], [196]-[200]
Some are described in Odgers [EA.165.270], pp 1559-1560
Criminal Trials Court Bench Book [2-010]
Poniris v R [2014] NSWCCA 100 at [34]
Aytugrul v The Queen (2012) 247 CLR 170 at [30]
R v SJRC [2007] NSWCCA 142 at [38]-[39].
R v Burton [2013] NSWCCA 335 at [198]; R v Gregory-Roberts [2016] NSWCCA 92 at [85]
R v Falzon (2018) 264 CLR 361 at [45]
Em at [107]
Odgers [EA.90.60], pp 708-9
Em at [63]
Em at [111]; DRF at [3]
For the significance of these matters, see GN v R [2024] NSWCCA 39 at [175]
IMM v The Queen (2016) 257 CLR 300 at [48] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2024

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