R v LDV

Judgment 1On 10 October 2012 LDV was arraigned upon an indictment which contained three counts. In essence, those counts alleged that on 12 December 2011, in quick succession, LDV committed three assaults and related acts of indecency upon MM who was, at the time, fifteen years of age. 2To each count LDV pleaded not guilty. 3The names of MM, her parents (CM and MO) and any other matter which could identify her are, and remain, the subject of a non publication order. 4Following the arraignment of LDV, I undertook the hearing of two interlocutory applications. The history of those applications was set out by me in some detail in a judgment I delivered on 15 February 2013. It is unnecessary therefore to repeat that history - which I incorporate by reference. Suffice to say, this present judgment is concerned with two matters. 5First, the admissibility of what has loosely been referred to as three pretext phone recordings. Those recordings in fact were three recorded telephone conversations with the accused on 21 December 2011. The recordings were made pursuant to a surveillance device warrant issued by Rothman J on 20 December 2011 under the Surveillance Devices Act 2007. 6Secondly, whether the restricted access order I made earlier concerning Part 2 of the manual for the operation of the telephone interface kit should be dissolved. 7In order to understand the legal issues which remain to be decided, a brief summary of the Crown's case is required. 8LDV is a good friend of CM. 9In July 1996, CM and his wife, MO had a child, MM. 10In about 2008, CM and MO separated. They shared parental responsibility for MM. 11On Sunday, 11 December 2011, LDV hosted a birthday party for himself. CM was one of the guests. 12CM initially stayed at the party for a few hours. He then returned to his home where he had his dinner with his partner, her son and MM. 13After finishing dinner, CM returned to the party. This time he took MM with him. 14As the night grew late most of the guests left. 15Ultimately, the only people left in the house were LDV, his wife, their twelve year old son SD, CM and MM. 16Mrs DV and SD went to their beds. 17LDV, CM and MM stayed up for some time longer. 18At about 3am on Sunday, 12 December they too went to bed. CM went to sleep on a couch downstairs, MM went to bed in a guest room upstairs, and LDV may have gone to sleep in his son's room. Where LDV slept that night is likely to be an issue of some significance in the trial. 19The Crown's case is that whilst MM was in the bed in the spare room, LDV committed the offences alleged in the indictment. 20Although MM was more or less awake during the alleged events, she could not (at least initially) clearly identify the offender - although she was able to identify him as an adult male. 21Whilst the incidents were occurring, MM was able to use her mobile phone to contact her mother who shortly thereafter arrived outside the DV's premises. MO was accompanied by her partner, Mr G. 22According to the statements made to the police by both MO and Mr G (respectively on 20 December 2011 and 9 February 2012), MM made immediate complaint upon entering the vehicle about being indecently assaulted. Each of them also said that, amongst other things, MM stated, "I don't know if it was LDV or dad". 23MO promptly made contact with the police. 24MM herself participated in a lengthy interview with police on 15 December 2011. 25In recounting what happened on the night of 11/12 December, she amongst other things, gave her version of what she told her mother immediately when she got into the car: "...and then mum got, a car drove up and I totally just, I just jumped straight in there like, I just pretty much ran to the car and I like, in that time that I was waiting for the car I thought what am I gonna say like, how can I say it, you know. I am that kind of person that I am not really shy about anything and I, I can, you know. So I said it straight out. I just said, `mum, LDV tried to have sex with me, like I was, you know, I woke up and he was trying to have sex with me'. That's the first thing that I said". (VD5 at A82, p. 14) 26Later in that interview, she said: "Q 363 Yeah. So what, did you know it was LDV? Did you recognise LDV? A. Well, it was just his body shape, was you know, because you know, at the point, two possible people, my dad or LDV". Q 364 Ah hmm. A. And, you know, and I was just trying to think distinctively of what could point it out and LDV was wearing no shirt. Dad's always worn a short (sic). He wears a shirt to bed. He always wears one. He was wearing no shirt and he had the kind of, the exact same build LDV had. ..." 27At some point between 15 and 20 December 2011, CM indicated to (then Detective Senior Constable, now) Sergeant Bowles, that he wished to confront LDV about the allegations his daughter was making. This caused Sergeant Bowles to consider applying for a surveillance device warrant so that any such confrontation could be done over the phone - and recorded. It also occurred to Sergeant Bowles that there was a possibility that MM might also be used in such a process, although he had formed no firm view about that as he had not discussed it with her or either of her parents. 28On 20 December 2011 three further things occurred. 29First, Sergeant Bowles caused a remote application for the surveillance device warrant to be made (cf s 18 of the Surveillance Devices Act). The relevant documents were sent by him by facsimile transmission to Sydney. 30Secondly, Sergeant Bowles took the statement from MO which, as I have already said, included an alleged conversation with MM on 12 December 2011 in which, according to MO, MM initially asserted she did not know whether the person in the room was LDV or her father. 31It is important to note that it is not clear in the evidence in what order those two events occurred. 32Thirdly, at 5.18pm, Rothman J issued that surveillance device warrant. 33Two aspects of the warrant ought to be noted. 34First, the period for which the warrant was to be in force was from "4.45pm on 20 December 2011 until 4.45pm on 19 March 2011". 35Secondly, the warrant authorised the use of certain surveillance devices "...on or about the body of..." MM and CM. 36It might be observed that Sergeant Bowles could only have sought to involve CM if he had clearly ruled him out as a person of interest. It is clear on the evidence that by this stage Sergeant Bowles had excluded CM as such a person with the result that the only possible person of interest was LDV. I specifically accept Sergeant Bowles' evidence that at this stage CM was definitely not a person of interest. 37On 21 December 2011, at about 10.30am, Sergeant Bowles went to CM's house. Purportedly in compliance with the surveillance device warrant, Sergeant Bowles taped a listening device to the handset of CM's mobile phone. At 10.59am, CM, in the presence of Sergeant Bowles, used that mobile phone, with the listening device activated, to place and conduct a phone call with LDV on his (i.e. LDV's) mobile phone. The conversation ended at about 11.11am. The conversation was recorded by Sergeant Bowles. LDV did not know the conversation was being recorded. 38At the conclusion of the conversation, Sergeant Bowles removed the listening device from CM's phone. Sergeant Bowles shortly thereafter left the premises. He then listened to the recorded conversation in his car. 39Later that day, at about 6.20pm, Sergeant Bowles returned to CM's house. He again attached the listening device to CM's mobile phone using the same methodology as before. A second call was then placed to LDV's mobile phone. On this occasion, it was Sergeant Bowles who placed the call. Having "dialled" the appropriate numbers, Sergeant Bowles then handed the mobile phone to MM who then had a conversation with LDV from 6.30pm to 7pm. Again, Sergeant Bowles recorded the conversation and again LDV did not know the conversation was being recorded. 40It is not revealed in the evidence whether, after the second call, the listening device was removed from CM's mobile phone. 41In any event, at about 7.13pm, CM again used his mobile phone to place a third call to LDV's mobile phone and speak to him. The listening device was attached. The call was recorded by Sergeant Bowles and again LDV did not know of that recording. 42At the time of these calls, LDV was not aware of any police investigation into any complaint by MM. 43The recordings of the three pretext calls do not contain any express admissions of wrongdoing by LDV. Rather, as I would understand it, the calls will be used by the Crown for two purposes. First, to show that when confronted by the allegations of wrongdoing, LDV, although he made no express admission of wrongdoing, verbally responded in a way inconsistent with his innocence and in a way from which the jury might infer a consciousness of guilt. Secondly, to show from admissions which were made that LDV was in the vicinity of the room MM was in at about the time of the events she has complained about. 44LDV was arrested on 22 December 2011. He exercised his right to silence and declined to participate in any recorded interview. 45In order to place the submissions in relation to the notice of motion and my ultimate decision in context, it is helpful to understand the legislative background to the Surveillance Devices Act which replaces the Listening Devices Act 1984. 46In November 2003 a Joint Working Group of the Standing Committee of Attorneys-General and the Australasian Police Ministers' Council on National Investigation Powers published a report on Cross-Border Investigative Powers for Law Enforcement. 47The report was prepared following the earlier publication of a discussion paper by the Joint Working Group in February 2003 entitled "Cross Border Investigative Powers for Law Enforcement". 48The 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. 49The Joint Working Group, however, noted that the model law attached to the report might be further amended by individual States and Territories so as to extend the surveillance regime to intrastate activities. A fair reading of the report was that any such intrastate activity to which the model law would apply would be similar serious criminal activity. 50When the Surveillance Devices Bill 2007 was presented to the New South Wales Parliament, it was expressly noted in the explanatory notes accompanying the Bill that it was intended to apply not only to cross border investigations but also to "local investigations". Again, a fair reading of those notes in the specific context of the report and the model law is that the intrastate activities to which the Bill was intended to apply would be similar to the kind of interstate activities specifically identified as justifying the model law. 51In introducing the Bill to the New South Wales Legislative Council on 14 November 2007, the then Attorney-General in his Second Reading Speech, inter alia, said: "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 the investigations and prosecutions as successful as possible". 52The Attorney-General also said in that speech, that: "Surveillance is a critical factor in major investigations and emerging technologies are being used to track suspects in increasingly sophisticated ways. Surveillance device warrants under the new legislation will permit the use of surveillance devices on specified vehicles or premises, on specified objects such as containers that might be used for drug manufacturing, to record conversations and to monitor activities. These new laws will also allow police and law enforcement agencies like the Police Integrity Commission, the Independent Commission Against Corruption and the New South Wales Crime Commission to use surveillance warrants during cross border operations. This means that they will be able to fight and track crime across the country without the red tape burden of having to get a warrant in other states. It will also recognise warrants from other states and territories in New South Wales, meaning greater cooperation between Australia's law enforcement agencies. This kind of cooperation is of paramount importance not only in confronting the very real threat of an act of terrorism occurring on Australian soil but also in tackling the important and major organised crime being committed across our borders. This new Bill will assist that operational needs of police by regulating new technology, which is needed to track, monitor and investigate serious crime and to match the increasingly sophisticated techniques used by criminals. ...We all know that criminals do not operate within borders or rules, and this Bill gives police better flexibility to be able to confront these criminals without the burden of cumbersome red tape restrictions..." 53Specifically, 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. 54With these observations, it is appropriate to refer to what I regard as the relevant specific provisions of the Surveillance Devices Act. 55Importantly for the determination of the issues raised in para 4 of the accused's notice of motion, s 3 of the Act specifically provides that the Act is not intended to limit any discretion which a court has to admit or exclude evidence. 56Section 4 defines what a listening device and a surveillance device is within the meaning of the Act. There is no real argument in this case that the equipment used by then Sergeant Bowles was anything other than such a device. 57Section 7 of the Act generally prohibits a person from installing or using a listening device. However s 7(2) does not apply that prohibition in circumstances where the installation, use or maintenance of a listening device was undertaken in accordance with a surveillance device warrant. 58Part 3 of the Act is concerned with, amongst other things, surveillance device warrants. Such a warrant may be issued by amongst others, a judge of the Supreme Court. 59Section 17 of the Act enables a law enforcement officer to apply for the issue of a surveillance device warrant if that officer on reasonable grounds believes or suspects that, amongst other things, an offence against the law of New South Wales, the Commonwealth, or any other state or territory, has been or is about to be committed, and that "the use of a surveillance device warrant is necessary for the purpose of an investigation into that offence, to enable evidence to be obtained of the commission of that offence, or the identity or location of the offender" (cf s 17(1)(a) and (c)). 60Section 19 provides the criteria to be applied by the relevant judicial officer in determining whether to issue a warrant. The criteria include: "(a) the nature and gravity of the alleged offence in respect of which the warrant is sought, and (b) the extent to which the privacy of any person is likely to be affected and (c) the existence of any alternative means of obtaining the evidence or information sought to be obtained and the extent to which those means may assist or prejudice investigation, and (d) the extent to which the information sought to be obtained would assist the investigation, and (e) the evidentiary value of any information sought to be obtained..." 61Section 21 of the Act defines what a surveillance device warrant authorises. Amongst other things, that includes "the use of a surveillance device, on or about the body of a specified person" (cf s 21(1)(e)). 62Significantly, s 21 also provides that each warrant, per se, authorises the connection of the device or equipment to a telecommunication system or network and the use of that system or network in connection with the operation of the surveillance device, or enhancement equipment (cf s 21(3)(h)). 63In this application, Mr Corish of counsel who appears for LDV, variously called in aid sections 90, 135(a), 137 and 138 of the Evidence Act individually, or in combination with s 3 of the Surveillance Devices Act, to submit that the three pretext calls should not be admitted into evidence. 64The following five bases for that ultimate submission were advanced. 65First, the evidence is not relevant. 66Secondly, the warrant is defective on its face. 67Thirdly, the warrant was impermissibly broad. 68Fourthly, the surveillance devices were incorrectly (and therefore unlawfully) installed. 69Fifthly, the calls were impermissibly designed to deprive the accused of his right to silence. 70I shall consider each of these matters separately. 71Before doing so, I should briefly address the question of whether, in the context of the present application and in particular, the second, third and fifth bases referred to by MrCorish, a judge of this court can rule upon the validity of a warrant issued under the Surveillance Devices Act by a judge of the Supreme Court. The issuing of such a warrant is not a judicial function, but rather an administrative power vested in a judicial officer, unconnected with any judicial function: see Ousley v The Queen (1997) 192 CLR 69 at 100 to 101 per McHugh J; and Kable v NSW (2013) 293 ALR 79 at para 3 per Allsop P. Those cases are authority for the proposition that the fact that the instant warrant was issued by a judge of the Supreme Court does not preclude a judge of this court determining whether there has been an error in the issuing of the warrant, in the context of determining the admissibility of any evidence obtained purportedly in compliance with the warrant. Whether or not the involvement of a judge of the Supreme Court (or any court) in the issuing of such warrants (being as they are deeply embedded in the police investigative process) as opposed to, say, a senior officer of the Crime Commission, the Attorney-General's Department or the Police Force is desirable is a matter for others to consider. 72First, the relevance objection. 73It is a fundamental proposition that evidence which is not relevant in proceedings is not admissible. Evidence is relevant in a proceeding where, if accepted, it could rationally affect (whether directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. 74The Crown submits that the contents of the three pretext calls are relevant in two respects. First, because they contain admissions as to where the accused was in the house at the time of the alleged offences. Secondly, because they are evidence of a consciousness of guilt. 75As to the first aspect, Mr Corish submits that it is unremarkable that Mr LDV should be somewhere within his own house. That fact therefore could not rationally assist a jury to determine whether the Crown can prove beyond reasonable doubt that LDV touched MM in a manner alleged in the counts in the indictment. With respect to the submission, it misses the point. A jury might well be assisted in hearing evidence as to where precisely within the house, on this night, LDV was. 76As to the second aspect, as a matter of general principle, Mr Corish does not challenge the proposition that evidence properly characterised as consciousness of guilt is relevant evidence. What he submits however is that properly understood the concept of consciousness of guilt does not apply to or arise from the three pretext calls. Mr Corish submits that a jury could not properly be instructed that they could use the conversations in this way because all LDV was doing was saying things simply to appease the relevant callers. In other words, they are not capable of constituting an admission against interest. Whether that construct or the one that the Crown contends for is ultimately accepted is a matter for the jury (which will no doubt also be given the appropriate inferences direction) and does not go to the admissibility of the evidence. In this regard, I am satisfied that the evidence meets the conditions analogous to those discussed in Edwards v The Queen (1993) 178 CLR 193. 77Secondly, I turn to the submission that the warrant is defective on its face. 78As I noted above, the period in respect of which the warrant was to be in force was from "4.45pm on 20 December 2011 until 4.45pm on 19 March 2011". 79As there is no capacity under the Surveillance Devices Act for a warrant to be made retrospective in operation, and as the maximum period for which a warrant can be enforced is ninety days (cf s 20(1)(b)(ix)) the reference in the second date to "2011" is obviously a typographical error. It clearly ought to have been "2012". That error is not one which would be misleading and the warrant is not defective for that reason - see Commissioner of Police v Barbaro [2001] NSW CCA 57. 80This submission therefore does not result in the exclusion of the relevant evidence. 81Thirdly, the submission that the warrant was impermissibly broad. 82Mr Corish correctly submits that the warrant merely names MM and her father, CM. Specifically it does not name LDV. Mr Corish therefore submits that on its face the warrant authorises the use of surveillance devices on or about the persons of MM and her father to listen to and record every conversation they had with any person at all for a period of three months. Mr Corish therefore submitted that the warrant was "a general warrant", which was not permissible under the general law. He cited MacGibbon v Warner (1997) 98 A Crim R 450 at p 453, per Priestley J A. 83The Crown submission on this point was that the warrant did strictly conform with the provisions of the Act and that it was specifically authorised by the Act. 84In my opinion, the submission of the Crown is correct. Whether or not under the general law the warrant was a general warrant, in the context of the Surveillance Devices Act it was a warrant specifically authorised by that Act. The specific purpose of the warrant, as the affidavit before Rothman J makes clear, was to enable telephone conversations between MM and CM on the one hand, and LDV on the other, to be recorded. That is what was done. If conversations between MM and/or CM and a third party were sought to be adduced into evidence, the point made by Mr Corish might well have been a good one. In the present case it is not a basis for rejecting the evidence. 85I now turn to the submission that the surveillance devices warrant were incorrectly (and therefore unlawfully) installed. 86As I have made clear, a surveillance device warrant under the terms of the Act itself specifically permits a listening device to be placed on or about a person. In my opinion, the attaching of a device to a mobile phone held by a person such as MM or CM is clearly "on or about the person". That submission in my respectful opinion fails. 87I turn finally to the submission that the warrant was used to impermissibly deprive the accused of his right to silence. 88The accused was not aware that MM had made any complaint or that the police were investigating any such complaint. 89The only relevant witnesses in connection with the complaint were of course MM herself, her parents, Mr G, LDV, his wife and son. 90To the extent that Sergeant Bowles said, both in his affidavit to the Supreme Court and in his evidence on this application, that he was concerned that LDV would conceal evidence or would interfere with witnesses, that evidence was in the circumstances unrealistic. 91The purpose of the listening device in the present case was clearly to obtain evidence against LDV in the event that he chose to exercise his right to silence when being formally interviewed by the police - which he did. In that process, MM and her father, were clearly used as "agents of the State". And it is clear by reference to Part 2 of the manual (VD16) that this was not an isolated incident. 92There 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. 93If 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. 94Moreover, contrary to the Crown 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. 95Further, 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, it would be too unfair to permit the accused of losing his privilege against self incrimination through trickery - a statement expressly approved of by Toohey, Gaudron and Gummow JJ at para 80 of that judgment. 96In the alternative, if I am wrong in distinguishing the previous dicta to which I have referred, then I would need to consider the propositions collected at para 70 in Pavitt. 97Having done so, I have concluded that the undoubted probative value of those three pretext calls, is outweighed by the danger of unfair prejudice to the accused (cf. R v Shamouil [2006] NSWCCA 112). 98I therefore order, pursuant to sections 90, 135(a) and 137 of the Evidence Act, individually and in combination with s 3 of the Surveillance Devices Act, that the evidence of the three phone calls be not admitted into evidence at the trial of LDV. 99I note that that order is in effect a pre trial hearing order for the purposes of s 139 of the Criminal Procedure Act. 100In so far as the restricted access order is concerned, touching upon Part 2 of VD15, I am not persuaded that any legitimate police investigation would be imperilled by that part of that document being made available. 101Moreover, I am firmly of the opinion that there is an overwhelming public interest in the community at large and Parliament itself being aware of how the police in New South Wales have interpreted the scope of the application of the Surveillance Devices Act. 102If upon such revelation no action is taken by Parliament, then the police will also be better informed as to the strength of the basis of their conduct in further investigations. 103Accordingly I dissolve the restricted access order in relation to Part 2 of VD15. I stay the operation of the dissolution of that order for twenty one days from today.