R v DRF

Background

1. The following includes an account of the material facts alleged by the Director. It is not intended to represent any finding as to disputed fact.
2. The complainant is the step-son of the respondent. He was born in 1970, the youngest of three children of his mother ("RF") and father. When he was 2 years of age his parents separated. RF commenced a relationship with, and eventually married, the respondent. Initially, the complainant and his sisters lived in Sydney with their father, but subsequently moved to live with RF and the respondent on the far south coast of NSW.
3. From about 1979, when the complainant was 9 years of age, and for a period of about 3 years, the respondent developed a practice of entering the complainant's bedroom and engaging in various sexual acts. These began as indecent assaults but progressed to anal sexual intercourse and fellatio. This behaviour ceased somewhat suddenly, in early 1982. The complainant continued to live with RF and the respondent. Arising out of this conduct, the respondent is charged with three counts of indecent assault, two counts of buggery, and one count of sexual intercourse without consent.
4. In 1987, at the age of 17, the complainant disclosed (in general terms) the assaults to three friends. Two of these friends have provided statements confirming that the complainant made such disclosure. The disclosures do not contain any detail of the nature of the sexual acts of the respondent. It was common ground in the appeal that this evidence would not be admissible in the prosecution case unless the respondent's legal representatives cross-examined the complainant to suggest fabrication or reconstruction: see Evidence Act 1995 (NSW), s 108.
5. Not long after the disclosure, the complainant also disclosed to RF something of the sexual misconduct. Again, he gave virtually no detail of these allegations. RF appeared not to believe him, and nothing more was said. RF has provided a statement. The statement contains evidence of two conversations that she said she had with the respondent. She said that, on the day after the complainant's 18th birthday (in 1988), the complainant told her that the respondent "interfered with me as a child". He declined to say any more. RF put the allegation to the respondent, who denied it. RF said that, in February 2010, she received an email from the complainant giving details of his allegations against the respondent. She put these to the respondent, who made partial admissions. For example, RF asserts that she put to the respondent the allegations made by the complainant in the email, including allegations of anal penetration, to which the respondent replied: "Part of this is true, the majority of it is not true. I did not penetrate him. I didn't threaten him. I did play with him."
6. On his 21st birthday in 1991 the complainant told his sister. It does not appear that the complainant's sister has provided a statement.
7. On 20 December 2011 the complainant attended the Batemans Bay Police Station and made a formal report of his allegations. The police officer who assumed control of the investigation at that time was Detective Senior Constable (now Sergeant) MacPherson. On 5 January 2012 the complainant made a detailed statement setting out his allegations. RF's statement was made on 2 March 2012.
8. On 22 May 2012 Senior Constable MacPherson contacted the respondent by telephone. There is no evidence in this Court as to the content of the conversation that followed. On 24 May 2012 solicitors acting for the respondent wrote to Senior Constable MacPherson advising that they acted for the respondent and had been instructed that Senior Constable MacPherson wished to obtain a statement from him "in relation to certain allegations that he is not as yet aware of". The solicitors went on to say: "We have advised our client to exercise his right to silence. As a result our client will not be taking part in any interview and will not be attending the Batemans Bay Police Station in relation to this matter." They invited Senior Constable MacPherson to commence proceedings if he had sufficient evidence to charge the respondent. They requested a copy of the statement made by RF.
9. On 21 September 2012, the respondent having declined to be interviewed, Senior Constable Peter Gillett (who by this time had taken charge of the investigation) applied to a judge of the Supreme Court for the issue of a warrant under the Surveillance Devices Act 2007 (NSW) ("the SDA"). Section 17 of the SDA authorises the issue of a surveillance device warrant if certain specified conditions are met. By the application Senior Constable Gillett sought a warrant for the use of two listening devices "on or about the body of [the complainant]". The application was supported by an affidavit affirmed by Senior Constable Gillett, in which he gave an account of the allegations made by the complainant. He stated the purpose of the warrant as: "… to record or listen to the private conversations of [the complainant], [the respondent] and any other person or persons participating in such conversations." Importantly, he disclosed that the respondent had declined the invitation for interview. Included in the affidavit were the following paragraphs: "23 [The respondent] became aware of the Police Investigation and his legal representative has contacted Police and advised that [the respondent] will not participate in any form of formal interview with Police … 27 Police intend to implement the following strategy in order to generate conversation between [the complainant and the respondent] by; [the complainant] re-establishing contact with [the respondent] and discussing the relevant offences. This may involve one or a series of telephone calls and/or face to face meetings. 33 I am of the opinion that there are no alternative means of obtaining the evidence or information sought to be obtained. There are no witnesses or forensic evidence to support this investigation."
10. A judge of the Common Law Division issued the warrant. (No challenge is directly made in this appeal to the propriety of the application for, or the validity of, the issue of the warrant.) The warrant authorised the use of two listening devices on or about the body of the complainant during the period 21 September 2012 to 18 December 2012.
11. On 14 December 2012, the complainant was fitted with two listening devices. One was capable of recording, the other of transmitting, "audio product". Police took the complainant to the home of the respondent and RF. He entered the premises. Both the respondent and RF were present. A conversation followed. Initially, the conversation was entirely between the complainant and RF, and about matters not relevant to the present proceedings. Eventually, the complainant addressed the respondent directly. The following is recorded (in a transcript put before the District Court, and this Court): "[Complainant] Can I just ask you why you did it? [Respondent]: Mmm? [RF] Mmm? [Complainant]: Could I just ask you why you did it? [Respondent]: Oh, [first name of complainant] I've asked myself the same question for forty years. [Complainant]: But why? [Respondent]: I don't know the answer. Honestly, I don't. If I had an answer I would have given your mother an answer, I would have given you an answer. [Complainant]: It's just - - - [Respondent]: I know, I - - - [Complainant]: - - - playing on my mind and I don't know why. [Respondent]: It's playing on my mind too, mate. It's played on my mind all the time, continuously every day. Like you I put up with it as well, I can feel it. [RF]: Yeah, well - - - [Complainant]: It didn't happen to you but. [Respondent]: I know that, I know that. Well, I just, I wish I could change life but I can't, I just wished I could. [Complainant]: No, but you haven't said sorry or anything. [Respondent]: I've, I've said, tried to say sorry every time, [first name of complainant], I'm - - - [Complainant]: But you can't. [Respondent]: I am sorry, I'm very, I'm that sorry it's not funny. I wished I could do, anything I could do but I can't. … [Respondent]: No, but I'm sorry, all I can do is say I'm sorry, I apologise totally. I can't do any more. I wish I had answers, I wish I had answers for meself, I even got counselling, I couldn't get answers. [Complainant]: Yeah, I'm still getting counselling. [Respondent]: Yeah, I went and got counselling, I'm sorry. I wish I'd knew. It's just something that I did, I know it was wrong and I kept doing it, and I don't know why I did it. I don't know why. [Complainant]: Maybe you should have come out and told mum when you was doing it. I don't know. [Respondent]: I don't know, I just - - - [Complainant]: And things wouldn't be like this now would they? [Respondent]: Yeah, and all of a sudden it hit ya, 'Oh, this is wrong. That's when I stopped suddenly, bang, this is it, this is wrong.' [Complainant]: Oh, was it that or 'cause I was getting to an age - - - [Respondent]: No, no, no. [Complainant]: - - - I was getting older? [Respondent]: No. I said to myself, 'Bang. This is it, this is totally wrong.' [Complainant]: Hmm. [Respondent]: And that's when I stopped. I'm sorry. [Complainant]: You should've known the first time, eh? [Respondent]: I know that, I know I should've. [Complainant]: Yeah. [Respondent]: - - I know I should have but I didn't. I'm sorry. I couldn't do anything about it. I don't know what it was. [Complainant]: I do. [Respondent]: Yeah, I know - - - [Complainant]: And it wouldn't be colourful, it would be pretty colourful language for what I call it. [Respondent]: Yeah, I know. I know, I've thought the same thing. [Complainant]: Yeah. Sick. [Respondent]: Yep. [Complainant]: I can see why I've turned out how I am. Why I turned to drugs, why I bloody drank, why I'm angry all the time. Why I hardly talk. Why I isolate myself. [Respondent]: I know that. [Complainant]: Do you but? [Respondent]: I do know it [first name of complainant], I do know it. I'm, I said if I could change it I'd change every bit of it but I can't. [Complainant]: Like I said, you could change it after the first time. (PHONE SIGNAL) [Complainant]: You just had to keep going back and back and back. I just need to get in me head why. Oh, I'm going to go. [There followed a conversation with RF.] [Respondent]: I never threatened you in my life. [Complainant]: Yes, you, yes, you did. [Respondent]: I never threatened you in my life, [first name of complainant]." The conversation was transmitted to a location where it was monitored by police officers. Evidence of the conversation is the evidence the subject of the s 5F(3A) appeal.
12. On 27 August 2013 (8 months after this conversation) Senior Constable Gillett wrote to the solicitors for the respondent, referring to their previous advice that the respondent declined to be interviewed. He advised that since that date police had gathered electronic evidence, and offered the respondent "the opportunity" to participate in an interview with respect to that evidence. On 28 August the solicitors replied, saying that they had advised the respondent not to participate in any interview.
13. On 30 October 2013 Senior Constable Gillett prepared and served on the respondent a Court Attendance Notice. That Notice is not before this Court.
14. The trial of the respondent was listed in the Bega District Court. As at August 2014 it did not appear to have been allocated a hearing date. Included in the evidence served on the respondent as a part of the prosecution case was a transcript of the conversation of 14 December. It seems that counsel for the respondent notified a challenge to the admission of evidence of the conversation. It was agreed that that admissibility question could be dealt with at a pre-trial hearing, pursuant to s 139 of the Criminal Procedure Act 1986 (NSW). Accordingly, the respondent was arraigned on an indictment containing the six counts outlined above. He entered a plea of not guilty to each count. The pre-trial hearing proceeded. At the conclusion of the hearing, the judge ruled that evidence of conversations would not be admitted in the trial. It will be convenient hereafter to refer to the evidence as "the excluded evidence".

Jurisdiction

1. The jurisdiction of this Court under s 5F(3A) of the Criminal Appeal Act rests upon the Court being satisfied that the exclusion of the evidence substantially weakens the prosecution case. That it does so is in contest. The onus lies upon the Crown to establish that the exclusion of the evidence has that character: R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228. Whether the evidence has that character is to be determined in the context of the whole of the evidence available to the Crown. The reliability of the excluded evidence is not a relevant consideration. If different inferences are capable of being drawn from the excluded evidence, the competing inferences are not relevant. The evidence is to be taken at its most favourable to the Crown.
2. I therefore start with the proposition that some of the answers given by the respondent to the complainant are capable of being interpreted as containing admissions (in general terms) of sexual impropriety with the complainant as a child.
3. On behalf of the respondent it was contended that the other evidence available to the Crown was such that the decision to exclude the evidence did not substantially weaken the Crown case. It is therefore necessary to examine what the other evidence was. Before this Court were statements taken by police from the complainant, RF, and a number of other individuals. In written submissions provided on behalf of the respondent, reference was made to:

• the statement made by the complainant, containing evidence of admissions he said the respondent had made to him at times other than in the conversation the excluded evidence;
• a statement made by Craig Shepheard;
• evidence "apparently available to the police of admissions said to have been made to the respondent's daughter, and to Mr and Mrs McKimm"; and
• a statement made by RF containing evidence of admissions she said the respondent made to her. These propositions need to be examined.

1. The evidence of admissions said to have been made by the respondent in the complainant's statement is the following. In about 2010, after he had sent an email to RF, RF told the complainant that she had confronted the respondent. There is no suggestion in this part of the complainant's statement that RF conveyed any admission made by the respondent to him. The complainant went on to say that in the same year, RF told him that: "[the respondent] had spoken to his daughter … about what he had done to me [the complainant] as well." There is no specificity as to what the respondent had told his daughter. Plainly, that evidence from RF would not be admissible.
2. However, the complainant went on to say: "47 I know that some time after this I remember that I called [the respondent] one day and had a heated conversation with him about what he had done. I think that [the respondent] said something like, 'It happened to me when I was young.' He said something about an uncle, but I can't remember. I was really angry when I called and spoke to him … I know that he had apparently made admissions to people about what he did to me."
3. Craig Shepheard was a school friend of the complainant. He made a statement in 2012, in which he said that, when he was about 17, the complainant had become upset and angry, and told Mr Shepheard that the respondent had "molested" him. He did not recall the precise language used by the complainant, but said "I seem to remember that [the complainant] said that [the respondent] 'fucked him'.".
4. He said that the complainant then telephoned the respondent, and, after an angry conversation, the complainant handed the phone to Mr Shepheard, who spoke to the respondent. The respondent said: "I was sick, Shep. I couldn't help myself, I was sick." Mr Shepheard said that he then terminated the conversation.
5. Another school friend of the complainant, Ms Sonya Afflick, made a statement. Ms Afflick also recalled a conversation in which the complainant disclosed that he had been abused as a child and claimed to have confronted the respondent. There is nothing in Ms Afflick's statement that contains any semblance of an admission by the respondent.
6. On the hearing of the appeal, it was conceded that the evidence of Craig Shepheard and Sonya Afflick would be inadmissible, unless made admissible by the manner in which the complainant was cross-examined at trial.
7. The relevant evidence from the statement of RF was outlined above. RF said that when she confronted the respondent after the 2010 email from the complainant, the respondent said: "Part of this is true, the majority of it is not true. I did not penetrate him. I didn't threaten him. I did play with him."
8. Additionally, RF's statement contains the following paragraph: "29 I am aware that [the complainant] has spoken with the police about what [the respondent] is alleged to have done to him. Since that time [the respondent] has told his daughter … I was with him when he told her on the phone. I believe he has also mentioned it to Trevor Fletcher of Batemans Bay, an old friend of his. I was with [the respondent] when he told Ross and Jean McKimm from Catalina. I am aware that [the respondent] contacted these people because [the complainant] had told me that he had spoken to these people and was intending on running me and [the respondent] out of town. [The respondent] wanted to speak to these people in an attempt to explain his situation to them."
9. On behalf of the respondent it is contended that this paragraph reveals that there are further sources of information as to admissions available to the police and that these sources have not been followed up by investigating police. (This may or may not be correct. Although the officer in charge of the investigation gave evidence in the pre-trial hearing, his evidence was directed solely to the circumstances in which he had obtained the warrant. He was not asked about any other aspect of the investigation, no doubt because that was not relevant to the issues then before the court. Whether the respondent's daughter or Mr and Mrs McKimm could give any relevant evidence, and whether, if they could, they would cooperate with police, is a matter of pure speculation.)
10. The statement of RF in [29] is unspecific. She does not state what it was that the respondent said either to his daughter or to Mr and Mrs McKimm. What is interesting is that she said that she believed that the respondent had "mentioned it" to Trevor Fletcher. Trevor Fletcher has made a statement in which he said that the complainant, inebriated, telephoned him in an upset state. He said that some time later the respondent came to see him and burst into tears. Mr Fletcher asked what was the matter. The respondent said that the complainant had gone to the police and he was to be charged with assault. The respondent then claimed to have no idea what had happened, and denied having assaulted the complainant.
11. In my opinion none of this evidence, other than that of RF, is capable of substantially advancing the Crown case, and much of it would not be admissible.
12. The admissions made by the respondent in the conversation the subject of the excluded evidence therefore adds substantially to the Crown case. Deprivation of that evidence would substantially weaken the Crown case. Without it, the Director's case would be limited to the (uncorroborated) evidence of the complainant as to the commission of the offences, supported to a small extent by the evidence of RF.
13. Submissions were made, on behalf of the respondent, to the effect that the probative value of the excluded evidence was low. This was based upon an analysis, not only of what was said in the conversation, but also of the tone and manner in which the words were spoken.
14. This is not a relevant consideration for this Court. What is to be made of evidence such as this is a matter for the jury.
15. In my opinion, the decision to exclude the evidence substantially weakens the prosecution case. Accordingly, I am satisfied that this Court has jurisdiction to deal with the Director's appeal.

The pre-trial hearing: Criminal Procedure Act, s 139

1. By s 139, a court, whether or not constituted by the trial judge, may, before a trial commences, make rulings about a variety of matters, including the admissibility of evidence. Any such ruling is binding on a subsequent trial judge, unless, in the opinion of the trial judge it would not be in the interests of justice for the ruling to be binding: sub-s (5).
2. The evidence in the pre-trial hearing included:

• affidavit evidence of police officers who equipped the complainant with the listening devices and who monitored the conversation;
• the affidavit (affirmed by Senior Constable Gillett, the officer in charge of the investigation) that had been presented to the Supreme Court on the application for the issue of the SDA warrant, together with the warrant then issued, and copies of the correspondence with the respondent's solicitor;
• the transcript of the conversation between the complainant, RF, and the respondent on 14 December;
• a statement made by the complainant on 5 January 2012 (outlining his allegations against the respondent) and another made on 30 October 2013 (concerning the identification of the house that he had lived in);
• a statement made by Senior Constable Gillett on 30 October 2013, to which was exhibited a disc containing the recording of the 14 December conversation, together with a transcript of that recording;
• statements by Craig Shepheard and Sonya Afflick (the two friends to whom the complainant had spoken of the alleged sexual misconduct, in about 1987); and
• a statement of Trevor Fletcher, concerning his conversation with the complainant, and his later conversation with the respondent, at different times in 2012.

1. Although the tape recording of the 14 December conversation was exhibited to Senior Constable Gillett's statement, the recording itself was not treated as being in evidence, and the primary judge did not listen to it.
2. Senior Constable Gillett gave oral evidence. In his examination in chief, he was asked why it was that, having received the solicitor's letter of 24 May advising that the respondent did not wish to be interviewed by police, he had applied for a warrant under the SDA. His reply was: "Your Honour given the circumstances of this matter and the serious nature of the matter I felt that it was warranted to fully investigate the matter as best I could."
3. The transcript records the following questions and answers in the evidence in chief of Senior Constable Gillett: "Q Did you have any conversation with [the complainant] on that day about how he might go about speaking with [the respondent]? A No. Q Can you tell his Honour what it was you remember that happened in that context. A Your Honour I did speak with [the complainant] prior to this taking place. I merely told [the complainant] that it was an opportunity to speak with [the respondent] about this matter. Q Did you give [the complainant] any instructions or advice about how he might conduct any such conversation? A No. Q Did you take him to particular subject matters or themes or topics? A No."
4. The transcript of the cross-examination of Senior Constable Gillett contains the following: "Q Can you turn over to paragraph 27 [of the affidavit supporting the application for the SDA warrant] and you say, do you not, that you didn't speak to him how he was to go about it but clearly from there it says the strategy in order to generate a conversation so there was some form of plan, the objective of what you were trying to get out of the listening device wasn't there? A That was the objective, yes. Q It was to get an admission? A It was for [the complainant] to talk about the matter that was being investigated. Q But the ultimate aim was to get an admission was it not? A That was an objective. Q Yes that was the objective and you could say that you by the facilitation of the listening device for [the complainant] to wear he was assisting you in the conduct of the investigation? A Yes. Q Whilst you said that you didn't tell him words were you listening in during the conduct [sic - ? conversation]? A I was, yes. … Q It's correct that you fitted him with that and you've just said that one of the objectives was to get the admission. Did you convey that to [the complainant] that that was one of the objectives? A During which point? Q Prior to the listening device being fitted that that was one of the objectives to get his father [sic] to make some form of admission? A Yes I would have. Q You've said to his Honour just before that in response to a question from my learned friend why did you want the listening device was to fully investigate. I think they were your words were they not? A Yes. Q And at the time that you decided to, using your words, fully investigate or obtain the listening device warrant you were aware that the accused, [the respondent] had declined to take part in any further interviews with police at that point of time? A Yes I was aware. … Q It was always intended that he would be the person having the conversation? A Yes. Q And the gaining of that objective would be achieved by the objective you said which was to gain admission that would be achieved by [the complainant]? A Yes. Q I've said sort of further back chronologically to achieve that objective it's correct that at the time you got the warrant [the respondent] had said he wouldn't take part in any further interviews? A Yes. Q And to get the information you wanted, which was the objective you wanted, which was the admission from [the respondent], you saw the listening devices as the means to achieve that, is that correct? A Yes. Q So to combine just two of those answers the means to gain your objective done whilst you knew [the respondent] didn't wish to speak to police was to obtain the listening device, is that correct? A Sorry can you repeat the question? Q You wanted to gain the admission from [the respondent] and you did that at a point in time whilst you knew that he didn't wish to speak to police, is that right? A Yes. Q From a slightly different perspective it was always, this is further of what you said before, it was always imagined that [the complainant] would illicit [sic - elicit] the information. It wasn't going to be he would say something and then you would go and do some other questioning, it was, the listening device was only for him to illicit [sic] the information is that correct?" The last question was rejected and the cross-examination terminated.
5. That concluded the evidence in the pre-trial hearing.
6. Counsel for the respondent provided a written outline of the submissions he proposed to make in support of his challenge to the admission of the evidence. Those submissions did not clearly identify any statutory or common law basis on which exclusion of the evidence was sought. They contained assertions such as the following: "4 The LD Warrant was solely for the purpose of obtaining admissions for [sic] [the respondent] after he had indicated to Police that he wished to exercise his 'right to silence'. Paragraphs 23 and 27 of the Affidavit supporting the application for the LD warrant demonstrate the purpose. 5 The LD Warrant was solely for use by the Complainant and indicates that that the Complaint [sic] was acting as an 'agent of the state' for the purpose of obtained [sic] evidence against [the respondent]. Whether the Complainant was acting as a 'agent of the Sate' [sic] is a threshold question and one which is clearly made out by paragraph 27 of the LD Warrant application Affidavit." (underlining and italics in original) [Paragraphs 23 and 27 of the affidavit are set out above at [19]. The references to "the LD Warrant" were mistaken. Prior to the enactment of the SDA, the Listening Devices Act 1984 (NSW) authorised the issue of warrants permitting the use of listening devices: see [60] below.]
7. The written submissions went on to extract a passage from the decision of this Court in Pavitt v R [2007] NSWCCA 88; 169 A Crim R 452, and concluded: "LD Warrant evidence being obtained by the Complainant, acting on behalf of Police, after [the respondent] had indicated he was exercising his right not to give evidence to Police, the evidence was clearly unfairly obtained. 14 The Court should apply its discretion to exclude the evidence." (underlining in original)
8. It is apparent that the primary judge understood the challenge to the admission of the evidence to have been based upon s 90 of the Evidence Act. Section 90 provides: "90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution; and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.
9. There was a lengthy discussion about the legal principles applicable to the admissibility of the tape recording. Particular reference was made by the judge to his previous decision in R v LDV (No 2) [2013] NSWDC 215; reference was also made to other authorities, particularly Pavitt (mentioned above).
10. Of significance in the discussion is one concession made by the Crown prosecutor, recorded in the transcript as follows: "Following upon that analysis if your Honour accepts what I've just said then it's palpably clear that in this case the complainant was within the meaning of the phrase as is defined in the authorities and in Pavitt an agent of the State."
11. His Honour asked if the Crown prosecutor accepted that, to which he replied: "I have to your Honour that's the fact." However, he added: "But I think what appears from Pavitt your Honour is that there are gradations of that state of affairs. One of the important aspects of it that is adverted in Pavitt is the way in which the agent, if I can use that shortened form of the expression conducts themselves with respect to the accused. And whether or not the police are directly involved in, I think the words that's used is scripting conversation. What your Honour heard from Detective Gillett yesterday was that that did not happen in this case. He had some conversation with [the complainant]. They fitted him with the device or devices. He went and spoke to [the respondent] and from that point the terms and boundaries and parameters of conversation were set by the complainant and [the respondent]. It's not a case your Honour where the complainant went there with a set of instructions or had received detailed advice about how to probe the accused in relation to particular topics. It's not a case like that at all."
12. Some of the terms and expressions (specifically, "agent of the state" and "elicit") used in these exchanges, as will become apparent, are material to the issues raised by the appeal. Their meaning and significance will be discussed below.
13. In this Court, the Crown did not seek to resile from the concession made in the District Court that it was "palpably clear that the complainant was an agent of the state". Only for that reason am I prepared to proceed on the basis that the complainant, in participating in the conversation with the respondent, was acting as an "agent of the state". This should not be taken as acceptance, let alone a finding by this Court, that the complainant had that status; much less should it be taken as a general finding by this Court that, where a complainant, at the behest of police, participates in a conversation with an alleged offender, so that the conversation can be recorded, the complainant is acting as an agent of the state. While I would not wish to discourage the Crown from making appropriate concessions, there are reasons to doubt that, in this case, the concession was properly made: see R v Broyles [1991] 3 SCR 595; R v Burton [2013] NSWCCA 335 at [105] and following.

The decision of the primary judge

1. The decision of the primary judge was that the evidence of the recorded conversation between the complainant and the respondent on 14 December 2012 would not be admitted into evidence on the respondent's trial. By s 139(5) of the Criminal Procedure Act, that ruling was prima facie binding on the trial judge (unless that judge formed the opinion that that would not be in the interests of justice).

The reasons of the primary judge

1. In determining that the evidence ought to be excluded, the judge drew heavily upon his own earlier decision in LDV (No 2), and, indeed, extracted lengthy portions of it. The circumstances of LDV (No 2) were relevantly similar, if not identical, to those of the present case. Allegations of sexual offences were made against LDV to police. The police officer investigating obtained a warrant under the SDA, with a view to having the alleged victim make contact with LDV; the plan was that any conversation that ensued would be recorded. It was hoped that in the conversation LDV would make incriminating statements or admissions. Telephone calls between the alleged victim and LDV did take place, and although LDV's responses fell short of self-incrimination, the Crown nevertheless sought to have the recordings admitted in his trial. The judge declined to admit the recordings, giving reasons. The key to the decision in both cases lay in the construction the judge applied to the provisions of the SDA. The particular provision on which he relied was s 17, conferring power on eligible judges to issue warrants authorising the use of surveillance devices (as defined in the SDA). In reaching his construction, he had regard to a number of reports and other documents that he considered fell under the rubric "extrinsic material" for the purposes of s 34 of the Interpretation Act 1987 (NSW). His Honour's reasoning process was as follows.
2. The SDA was enacted in 2007. Prior to that, authority to issue surveillance devices (then called listening devices) was conferred by the Listening Devices Act 1984 (NSW). Enactment of the SDA followed consultation between the law enforcement authorities of all Australian jurisdictions. Those consultations were particularly directed to "cross-border" law enforcement. A report of a Joint Working Group of the Standing Committee of Attorneys-General and the Australasian Police Ministers' Council on National Investigative Powers on Cross Border Investigative Powers for Law Enforcement was published following those consultations. Of this, his Honour said: "48. The report issued by the Joint Working Group makes clear that the matter of concern was to facilitate the use of surveillance devices by law enforcement agencies in cross-border investigations of substantive criminal organisations, terrorists, drug manufacture and importation and other significant organised criminal activity." (underlining in original) It is apparent that, by "substantive criminal organisations …", his Honour intended to convey the concept of "serious criminal activity".
3. Apparently there was attached to the Report a draft "model law", which, the Joint Working Group envisaged, might be extended by individual states to intra-state criminal activities. His Honour considered that a "fair reading" of the Report indicated that any such intra-state activity would be of the same quality - that is "serious criminal activity". His Honour also had regard to the Second Reading Speech of the Attorney-General in introducing the Surveillance Devices Bill in the NSW Parliament: NSW Legislative Council, Parliamentary Debates (Hansard), 14 November 2007 at 4036.
4. He considered that a fair reading of the explanatory material demonstrated that the Parliamentary intention was that the SDA (if and when passed) would similarly apply - and apply only - to allegations of serious criminal activity. To support this conclusion, he quoted from the Second Reading Speech as follows: "51 … Serious crimes like murder, terrorism, drug manufacture and importation make it essential that our law enforcement agencies have every possible tool at their disposal to make their investigations and prosecutions as successful as possible."
5. His Honour quoted also from other passages in the Second Reading Speech in which reference was made to "the very real threat of an act of terrorism occurring on Australian soil", and to "tackling the important and major organised crime being committed across our borders", and to "serious crime".
6. His Honour concluded from this that the intention of Parliament in enacting the SDA, and s 17 in particular, was to provide law enforcement agencies with a weapon, but to limit the use of that weapon to crimes of the genre mentioned in the extrinsic material - that is, serious major crime. The offences alleged against the respondent, he considered, did not fall in that category.
7. His Honour said: "53. Specifically, nothing was said by the Attorney-General that the use of surveillance warrants would become a day-to-day tool in the conduct of investigations by police in relation to any matter as they saw fit, including what one might refer to as run of the mill criminal investigations."
8. He then referred to certain specific provisions of the SDA, including s 3, which provides: "3 Relationship to other laws and matters (1) Except where there is express provision to the contrary, this Act is not intended to affect any other law of the State that prohibits or regulates the use of surveillance devices. (2) This Act is not intended to limit a discretion a court has: (a) to admit or exclude evidence in any proceeding, or (b) to stay criminal proceedings in the interests of justice. (3) For the avoidance of doubt, it is intended that a warrant may be issued, or an emergency authorisation given, in this jurisdiction under this Act for the installation, use, maintenance or retrieval of a surveillance device in this jurisdiction or a participating jurisdiction, or both."
9. He went on to say: "92. There is nothing extraordinary about the present allegations against LDV or of the investigative issues surrounding them. Although serious to LDV and the complainant, they are entirely unremarkable alleged offences. 93. If Parliament had intended to reduce or extinguish the right of silence of all accused persons, and not just the alleged perpetrators of the types of serious criminal activity specifically nominated in the report and referred to in the Second Reading Speech to which I have referred, it would need to be, in my view, very expressly stated. Because of that specific legislative history the dicta in previous authorities collected in Pavitt v R [2007] NSWCCA 88 are in my respectful opinion distinguishable. 94. Moreover, contrary to the Crown's submissions, in my opinion I am entitled to take the report and the Second Reading Speech into account - not to interpret the words of the Act, but to inform the court in the exercise of the residual discretion specifically preserved by s 3 of the Surveillance Devices Act. 95. Further, for the court to permit the Crown in the present case to adduce into evidence the subject of the present application would be to acquiesce in that very substantial alteration, if not extinction, of those rights of this accused without a clear and proper basis. Or, as Fitzgerald P said in the judgment under appeal in Swaffield v R (1996) 88 A Crim R [98], it would be too unfair to permit the accused of losing his privilege against self-incrimination through trickery - a statement expressly approved by Toohey, Gaudron and Gummow JJ at para 80 of that judgment." [His Honour was referring to the High Court decision in The Queen v Swaffield; Pavic v The Queen [1998] HCA 1; 192 CLR 159.]
10. The essence of the decision in this case and LDV was that the power to grant SDA warrants was intended by Parliament to be confined to investigations of cases of "serious criminal activity", such as murder, terrorism and drug manufacture or importation. (Implicit in this is the notion that sexual offending against children does not come into the category of "serious criminal activity". That is a questionable proposition.)

Analysis

1. There are a number of difficulties in the approach taken by his Honour. The first is that, if the power to issue warrants under the SDA were confined as his Honour held, it must follow that the warrant that was issued in this case was issued unlawfully. His Honour clearly recognised this consequence of his construction, and sought to avoid it, by saying that he was entitled to take the construction into account in the exercise of "the residual discretion specifically preserved by s 3" of the SDA. Sub-section 3(2) of the SDA provides: "(2) This Act is not intended to limit a discretion a court has: (a) to admit or exclude evidence in any proceeding, or (b) to stay criminal proceedings in the interests of justice."
2. The logic cannot be accepted. If the legislature intended to limit the power to grant warrants under the SDA to cases of "serious crime", of the categories his Honour identified, then the warrant in the present case ought not to have been issued. There is no case for taking such a construction into account in the exercise of "the residual discretion".
3. In any event, the conclusion that the power was so limited is entirely inconsistent with s 17 of the SDA. Section 17, to which his Honour referred, authorises the issue of a surveillance device warrant for the purposes of investigating "relevant offences". "Relevant offence" is defined in s 4 of the SDA as: "(a) an offence against a law of this jurisdiction or of the Commonwealth or another State or Territory that may be prosecuted on indictment, or (b) an offence against the law of this jurisdiction that is prescribed by the regulations for the purposes of this definition."
4. In other words, a surveillance device warrant may be issued to facilitate the investigation of any indictable offence. The offences with which the respondent was charged were indictable offences, and thus "relevant offences", and thus within the scope of s 17. The power to issue such warrants is not confined as his Honour considered. Neither is the exercise of a discretion to exclude evidence (whether admissions or otherwise) to be exercised by taking into account any such limitations.
5. That conclusion exposes the next flaw in the reasoning. His Honour relied heavily upon various items of extrinsic material, purportedly pursuant to s 34 of the Interpretation Act 1987 (NSW).
6. Section 34(1) identifies the circumstances in which such extrinsic material may be used for the purpose of construction of a legislative provision. The circumstances are: "(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision … or (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision … leads to a result that is manifestly absurd or is unreasonable."
7. His Honour did not rely on the extrinsic material to "confirm … the ordinary meaning" of s 17; far from it. He used it as a means to a construction that is, in my view, quite contrary to the ordinary meaning of that section. Nor did he use the extrinsic material to resolve any ambiguity or obscurity, or to avoid a result that is manifestly absurd or unreasonable. Section 17 is neither ambiguous nor obscure, nor does the ordinary meaning lead to a result that is manifestly absurd or unreasonable.
8. Accordingly, s 34 did not operate to permit the use of the extrinsic material for the purpose of the construction of s 17.
9. I appreciate that his Honour asserted that he was not using the material for the purpose of construction, but rather "to inform the court in the exercise of the residual discretion". On analysis, however, his use of the extrinsic material could only go to what was intended to be encompassed by s 17.
10. Further, while I accept that the Second Reading Speech of the Attorney General is one of the forms of material that may be used in the construction of a legislative provision, the status of the Report to which his Honour referred is more doubtful. The Report is entitled "Cross-Border Investigative Powers for Law Enforcement". Its cover page bears a heading: "Leaders Summit on Terrorism and Multi-Jurisdictional Crime." The cover page goes on (apparently) to identify the contributors to the report as: "Standing Committee of Attorneys-General and Australasian Police Ministers Council Joint Working Group on National Investigation Powers." It then contains the following note: "This report was prepared by officers who are members of the Joint Working Group as an initiative of the Leaders Summit on Terrorism and Multi-Jurisdictional Crime. It does not represent the views of the Standing Committee of Attorneys-General or the Australasian Police Ministers Council, nor any individual minister, of any leader of an Australian government."
11. It is worth going back to the words of s 34 of the Interpretation Act. The chapeau to sub-s (1) is as follows: "(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material [in the circumstances set out in pars (a) and (b), set out above]."
12. Sub-section (2) provides a list of the categories of material that may be considered under sub-s (1) but is expressed not to limit the effect of sub-s (1). The list does not contain any category into which the Report falls. However, by reason of the opening words of sub-s (2), consideration of the Report is not excluded, provided it can be seen as being material that "is capable of assisting in the ascertainment of the meaning of [the relevant statutory provision]". In my opinion, the Report does not have that capacity. There is nothing to show that it was provided to NSW legislators or in any way formed the basis of the SDA, or otherwise assists in the construction of the SDA.
13. The approach taken to the question of the admissibility of the evidence was erroneous in law. For that reason alone, the decision must be set aside. However, counsel who represented the Director urged that the Court proceed to deal with a subsidiary issue, concerning s 90 of the Evidence Act.

Evidence Act, s 90

1. Although it is not entirely clear, there is a strong indication in [95] of LDV (see [67] above) that his Honour considered that, independently of his construction of s 17 of the SDA, the evidence of the conversation ought to be excluded on the application of s 90 of the Evidence Act. It is convenient to repeat the terms of s 90: "90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence."
2. The ambit of s 90 was explored in depth by the High Court in Em v The Queen [2007] HCA 46; 232 CLR 67. Gummow and Hayne JJ considered that s 90 is a "final or 'safety net' provision", to be considered after all other provisions containing more specific exclusions have been dealt with (at [109]).
3. In R v Burton [2013] NSWCCA 335, I considered at some length the issues arising in a case where evidence was similarly obtained. I do not propose to repeat all that I there said. As indicated above, the Crown conceded that the complainant was "an agent of the state", and it is necessary to proceed on the basis of that concession. That does not have the necessary consequence that the evidence must be excluded, although it is a relevant consideration, because it provokes inquiry along the lines of the discussion in two decisions of the Supreme Court of Canada, R v Hebert [1990] 2 SCR 151, and R v Broyles [1991] 3 SCR 595.
4. In Broyles, Iacobucci J first raised the concept of "an agent of the state" and said: "28 In every case where the right to silence is raised, the threshold question will be: was the person who allegedly subverted the right to silence an agent of the state? In answering this question, one should remember that the purpose of the right to silence is to limit the use of the coercive power of the state to force an individual to incriminate himself or herself; it is not to prevent individuals from incriminating themselves per se … 29 … Where the statements are made to an informer, as in the case at bar, it may be arguable whether or not the coercive power of the state was brought to bear on the suspect in obtaining the statement from him or her. 30 … Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange. I would accordingly adopt the following simple test: would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?"
5. The High Court had both Hebert and Broyles in mind when deciding The Queen v Swaffield; Pavic v The Queen. However, the High Court, while considering the Canadian authorities "instructive" (see [83]), did not fully endorse the approach of the Supreme Court. Ultimately, in the joint judgment of Toohey, Gaudron and Gummow JJ the following conclusions were reached: "91 … it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations. 92 It is relevant to bear in mind the provisions of the Evidence Acts … It is therefore appropriate to develop the common law in Australia in terms of a broad principle based on the right to choose whether or not to speak."
6. In Swaffield; Pavic, the High Court recognised a number of circumstances relevant to the exercise of "the fairness discretion". One circumstance is "unreliability": [78]. It follows as a corollary that reliability is also a relevant consideration: see Em, at [73].
7. Another relevant circumstance is public policy: see [52]. A third is the probative value of the evidence relative to any prejudicial effect it may have: [62] and following. This consideration is to be found in statutory form in s 137 of the Evidence Act.
8. I turn then to apply those considerations to the circumstances of the present case. First, there was no element of coercion in the respondent's engagement with the complainant. The respondent was entirely free to speak or not to speak as he chose. Although it may be accepted that the complainant, in engaging with the respondent on the subject of his assertions of sexual abuse, was acting at the behest of police, the conversation is one that might easily have occurred without police intervention. There is no reason to think that the respondent would have responded differently had the complainant simply confronted him of his own volition. Moreover, the admissions made by the respondent have an apparently high degree of reliability.
9. It is not uncommon in the investigation of allegations of sexual offences for investigating police to implement methods such as they did in the present case. These have come before this Court on a number of occasions: see, for example, R v XY [2013] NSWCCA 121; 84 NSWLR 363; Burton; and, in the District Court, LDV. The strategy is to arrange for a complainant to engage in conversation with an alleged offender, with a view to securing some confessional evidence. Such a device is seen to be called for for two reasons. One is that, typically, sexual offences take place in private, in circumstances where there is no witness to the events. That leaves the prosecution in the position of having no corroborative evidence. The second, related, reason concerns the attitude that courts have, historically, taken to the reliability of complainants in cases of alleged sexual offences: Carr v The Queen [1988] HCA 47; 165 CLR 314; Ewen v R [2015] NSWCCA 117, and the cases there cited. It is true that the legislature has, over the years, attempted to curb the enthusiasm for directions to juries that imply that the evidence of a complainant is somehow deficient simply because it is uncorroborated, but those efforts have taken some time to yield results. This issue has been explored in Ewen.
10. Notwithstanding that s 294AA of the Criminal Procedure Act now prohibits a direction that juries, before convicting in trials of sexual offences, should scrutinise with great care the uncorroborated evidence of a complainant (see Ewen, at [146]), it may be expected that juries, in applying the principle of the presumption of innocence, and the need for the Crown to prove its case beyond reasonable doubt, will treat the uncorroborated evidence of complainants with some scepticism. Corroborative evidence is an important aspect of the public policy interest in the prosecution of crime. Securing confessional evidence by means that do not involve coercion or unfair tactics does not contravene public policy consideration.
11. The question is whether arranging for a complainant to engage in a secretly recorded conversation with an alleged offender involves unfair tactics such as to render the use, in the alleged offender's trial, unfair. In my opinion, that circumstance alone does not. That is so even taking into account the respondent's clear refusal to be interviewed by police. In Em, the person suspected of serious crime repeatedly made abundantly clear that he would not participate in any conversation with investigating police if that conversation was to be audio or video recorded. He did engage in conversations with police in the belief that no recording was made, and he made significant admissions on that assumption. Police obtained a warrant under the Listening Devices Act (the predecessor of the SDA) and recorded further conversations, including admissions. The High Court held that it was not unfair, within the meaning of s 90, to use that evidence in his trial (see [67]-[68], [123]).
12. In this respect it is material that the Parliament of NSW has permitted the issue, under specific circumstances, of warrants authorising the use of surveillance devices to intercept and record private conversations. A surveillance device warrant may be issued where (relevantly) an eligible judge is satisfied that there are reasonable grounds for suspecting or believing that an indictable offence has been committed (s 17). In determining whether a warrant should be issued, the eligible judge is to have regard to various specified considerations, set out in s 19(2) of the SDA. These include:

• the nature and gravity of the indictable offence in question;
• the extent to which the privacy of any person is likely to be affected;
• the existence of alternative means of obtaining the evidence or information;
• the extent to which the information sought to be obtained would assist the investigation; and
• the (potential) evidentiary value of any information sought to be obtained.

1. It is to be taken that the judge who issued the warrant in this case considered all of these factors. Moreover, as mentioned above, the affidavit that supported the application disclosed the respondent's prior refusal to be interviewed by police.
2. It is not asserted in this case that the warrant was invalidly issued. The evidence so obtained was therefore obtained not only lawfully, but on the express authorisation of a judge of this Court fully informed as to the relevant facts. To categorise the admission of evidence so obtained as "unfair" would be to subvert "the statutory scheme involving judicially sanctioned covert surveillance as an aid to the detection of crime" that has been expressly adopted by the legislature: see Em, at [69] and [78].
3. Each case, of course, will be decided on its own facts. In this case, the one additional circumstance that must be taken into account is that the respondent expressly declined to be interviewed by police. The meeting arranged by police was plainly designed to circumvent his refusal to do so. That fact was known to the eligible judge who nevertheless exercised his/her discretion to issue the warrant.
4. The respondent was not interviewed by police. He was not coerced into participating in an interview. There was no treachery or deception in what either the complainant or the police did. The respondent engaged in a conversation with his step-son in which he allegedly made some statements that a jury may consider to be incriminating. He had made similar incriminating statements to RF. There is no suggestion that the evidence of RF should be excluded.
5. Two circumstances mark out the evidence obtained by the conversation between the complainant and the respondent from the evidence of RF. One is that, in meeting the respondent, the complainant was acting at the suggestion of investigating police. Since the respondent did not know that, his responses were not influenced by the police involvement. That says a good deal about the reliability of the evidence. The second circumstance is that the conversation was tape recorded. That is important. Had the complainant, without police intervention, confronted the respondent, and subsequently made a statement recording his recollections of the conversation, there is no doubt that the evidence would have been admissible. It is the fact that it was recorded, giving it credibility, reliability, and accuracy, that gives rise to the present complaint. The circumstances in which the evidence was obtained significantly enhanced its reliability. (In this respect, I refer not to the reliability of the content of the respondent's admissions but the reliability of the evidence of what he in fact said. Oral evidence given by the complainant of his recollections of such a conversation, which, I have already suggested would have been admissible, would be subject to all of the frailties of human recollection. Here, there can be no doubt of what the respondent said. How it is to be interpreted is, of course, a matter for the jury.)
6. In my opinion, there is no basis under s 90 to hold that the circumstances in which the evidence was obtained render it unfair to the respondent for the Crown to use the evidence in his trial.

---

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: 31 March 2017