R v Ljubicic

The ERISP

1. On 1 December 2015 the respondent participated in the ERISP. In the ERISP he said that the complainant, though sleepy, was awake when he had anal intercourse with her; that she seemed willing to have sex; the pressing of her anus with his penis was unintentional; that his intention had been to have penile-vaginal intercourse; that there was no penetration as only the tip of his penis touched her anus; and he thought that she was consenting to vaginal intercourse but did not think that she was consenting to anal intercourse.
2. In the course of the ERISP the respondent told police that "[n]othing was said" after the incident the subject of the charge. This prompted the following exchange: "Q27 So when you say 'nothing was said' you've not had a conversation about it. A The next morning nothing was said. Um, one year later, no, we, we didn't have, we didn't have a conversation. Ah, I kept seeing [the complainant] after that. Nothing, it wasn't, the subject wasn't brought up. It was only ah, after we ah, then we, we split up around the middle of ah, last year and then at the start of year I, I got a letter from [the complainant] um, yeah, accusing me of um, sexual harassment. Um, I, I ignored the letter and then a few months ago I received a call from [the complainant] on the telephone."
3. The respondent confirmed that the telephone conversation was the only time after the event that they had discussed what had occurred that night at all. He said that they had separated about six months after the incident (in mid-2014) and that the first mention of the incident was at the beginning of 2015 (six months after they had broken up and about a year after the incident), when the complainant had written a letter to him about it to which he had not responded. The letter was not available to be tendered.
4. Much later in the ERISP, after the respondent had been questioned about the incident, the police raised the telephone call to which the respondent had referred earlier (in A27, see above) in the following exchange: "Q105 O.K. And you also mentioned a telephone call. Can you - A Yeah, that was a few months. Q106 A few months ago. A Yeah. Q107 Can you tell me about the, the conversation you had? A Yeah, well, I ah, [the complainant] said that I'd ah, I had anal intercourse with her against her will, and I explained to her that, no, I didn't and that when, that I explained to her that, about the ah, what happened that night that I, that when I ah, motioned her into doggy position she, she ah, disagreed with that. I um, I said, 'Well, look, there was no intercourse that night.' Um, and she accused me of having anal intercourse with her. I said, 'I'm sorry you feel that way but ah, that's not what happened.'"
5. At Q132 the police confirmed with the respondent that he had not responded to the complainant's letter, either in writing or by calling her. The police raised the telephone call in the following exchange: "Q133 Do you know, can I just confirm that the telephone call that you received from her a few months ago - A Ah hmm. Q133 [sic] - um, where did you receive that telephone call? A I was in hospital with um, my dad and he'd just um, I got confirmation that he's got cancer and that, that was at Royal North Shore Hospital and I was with my dad at the time. I, it was quite, it was pretty stressful at both sides, being with dad and getting the telephone call at um, there, there when I with um, at the hospital. Q134 So did she contact you, if you were in the hospital did she contact you on your mobile? A Yeah. Q135 And is it the same mobile number - A That's right. Q135 - that you gave me before? A Yeah."
6. The police did not, during the ERISP, disclose their knowledge of the pretext call or that it had been recorded.

Pre-trial matters

1. After the respondent was charged and committed for trial the Crown served a Crown Case Statement which contained the following: "[7] In the early hours of the morning of the 26 January 2014 the complainant, having been asleep for an unknown period of time, in a face down position, was woken by a pain in her anus. This caused the complainant to cry out. She felt within her anus something flesh like. At the same time she felt the heavy body weight of the accused laid on her back. From his position and the feeling inside her anus, the complainant believed the accused had penetrated her in the anus with his erect penis while she was asleep. . . . [17] As part of their investigation, police applied for and were granted a surveillance device warrant by the Supreme Court of NSW, and, on 6 October 2015, a telephone conversation between the complainant and accused was recorded. During the conversation the complainant raises the incident of 26 January 2014 and the accused agrees that it occurred, but says the complainant was awake and that they had consensual anal intercourse. The accused further says that, when the complainant objected to their having anal intercourse, he stopped. [18] The accused was arrested on 1 December 2015 and participated in an electronically recorded interview."
2. Ms Hall, who appeared for the respondent at trial and in this Court, confirmed that in the defence response to the Notice of Prosecution Case served pursuant to s 143 of the Criminal Procedure Act 1986 (NSW), the respondent indicated that he objected to the pretext call but did not indicate that the ERISP would be objected to.

The proceedings in the Court below

1. On 20 November 2017 the Crown presented an indictment against the respondent (to which he pleaded not guilty) which charged that: "[The respondent] on or about 25 January 2014, at Petersham in the State of New South Wales, had sexual intercourse with [the complainant] without her consent, knowing she was not consenting."
2. In the course of the complainant's evidence, the Crown sought to play the recording of the pretext call to the jury. In the absence of the jury the trial judge raised an objection to the pretext call and also to the ERISP. His Honour's objection to the pretext call was that it was exculpatory. The prosecutor submitted that, although it was largely exculpatory, it was not wholly exculpatory and that the Crown was entitled to rely on those parts which constituted admissions. His Honour, after indicating that he considered there to be some unfairness when there is an "organised call where the accused doesn't know what's going on", which his Honour described as "entrapment", expressed concern about the length of time between the incident and the pretext call (about 21 months). In the course of argument, his Honour then raised the issue of the admissibility of the ERISP and asked the Crown whether it was ever put to the respondent in the course of the ERISP that there had been a recording of the telephone call, which was the pretext call. The Crown confirmed that it had not been. His Honour characterised this issue as one of fairness. After almost six pages of transcript of exchanges between the trial judge and the Crown, his Honour asked whether the respondent objected to the pretext call. The respondent's counsel confirmed that no objection was taken to the pretext call. When asked whether objection was taken to the ERISP, respondent's counsel indicated that she would need time to consider the respondent's position. The Court was adjourned until 21 November 2017.
3. On 21 November 2017 the Crown submitted that there was no unfairness in the ERISP that would warrant its exclusion and relied on The Queen v Swaffield (1998) 192 CLR 159; [1998] HCA 1. The Crown submitted that the probative value of the ERISP was that it amounted to a version which was inconsistent with the one given in the pretext call and could be used to undermine the respondent's credibility and, therefore, the reliability of either version. After substantial exchanges with the Crown, the trial judge invited submissions from counsel for the respondent, who identified the unfairness as being that the respondent was not given the opportunity in the ERISP to explain any inconsistencies between what he had said in the pretext call and what he had said in the ERISP.
4. There was no reference to s 138 of the Evidence Act 1995 (NSW) in the argument on the voir dire. At the conclusion of the voir dire, the trial judge delivered ex tempore reasons for excluding the ERISP. His Honour said: "The accused was never told that the police had a transcript of that telephone call, and at the time the accused was not represented at the interview. In terms of fairness, and as was discussed in argument, in some jurisdictions police are required to provide to a person under caution and to be interviewed with the material that they have. This is so that a person may in fairness be able to reflect or consider whether there is a diary note or any other record that would enable them to deal with the questioning undertaken. This was not the case here, and indeed the police feigned, it might be said, that no knowledge of the earlier call. Mr Cooley, who appears for the Crown, experienced and highly regarded Crown, has put the Crown's position, that is that in terms of the record of interview he would be wanting to cross-examine the accused in respect of the differences between the record of interview and the telephone call as well as, if the accused was to give evidence, anything he said in evidence. . . . Section 90 of the Evidence Act records, discretion to exclude admissions [the terms of the section were set out]. The question also arises is whether s 138 of the Evidence Act may also come into play. . . The matters raised by Ms Hall for the accused of the inconsistencies between the two conversations do change in my mind the procedural fairness in this matter. Procedural fairness because the Crown has two documents which can be used if the accused gives evidence in the matter. I am sure that the interview by the police was sought to be done so as to support the complainant in a matter to bolster the prosecution case. However, and perhaps unforeseen, that does give rise to a prejudice to the accused in terms of the options that he has and how he is to run his case should the record of interview be admitted. In my view the record of interview should not be admitted, firstly under s 90, for the reason that had that disclosure been made by the police the responses to the police may well have changed in that he may not, one, have provided with the interview, or two, it might be said that the responses were voluntarily given. Mr Crown has provided the Court with the decision of the R v Swaffield which in turn refers to the early decision of Cleland v R (1982) 151 CLR 1 which followed the Bunning v Cross issue of discretion where there has been illegally or improperly obtained information. The question that falls here in this case is whether the interview should have proceeded in circumstances where no disclosure was made of the transcript of the earlier telephone call. In assessing that one has to look at the position the police were in and the factual matrix that existed at that time. In my view this was unduly prejudicial material that, as I have earlier stated, in some jurisdiction sis [scil, is] required as a matter of fairness to be given before the investigation can proceed further, thus one can understand why a prosecutor or prosecution may wish to adduce the further evidence because it bolsters their case. Unfortunately, it seems to me in this case, it does create a prejudice to the accused and it would be unfair for that evidence to be used. Should I be wrong in respect of s 90, I will disregard it under s 138. For the reason basically as set out above, but nonetheless in the exercise of discretion, it was a matter that it falls within s 2(a), that is that the person being questioned or conducting the questioning did, or omitted to do an act in the act of questioning, even though he or she knew or ought reasonably have known the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the question; or (b) which refers to a false statement, this was not a false statement, it was just a matter that a disclosure was not made and effectively, in respect of subs (3), the probative value, bearing in mind the length of time between the allegation taking place on 26 January 2014, the first mention of it by way of letter in early 2015, and the police involvement in terms of phone call in October 2015, and the interview in December 2015. That delay in time would make it very difficult for any person, being asked to reflect back on an incident, obvious, which for approximately one year had been unchallenged."

The respondent's submissions

1. Ms Hall did not seek to defend the ruling on the basis of s 138 of the Evidence Act since she accepted both that the ERISP was neither unlawfully nor improperly obtained and that no such objection had been taken on the voir dire. She also accepted that the fact that the police did not disclose the pretext call before asking the respondent whether he would participate in the ERISP could not amount to unfairness since there was no obligation to do so.
2. It was submitted on behalf of the respondent that this Court should not entertain the appeal as the ruling to exclude the ERISP neither eliminated nor substantially weakened the Crown case, as required by s 5F(3A) of the Criminal Appeal Act.
3. In the alternative, Ms Hall submitted that it was within the trial judge's discretion to exclude the ERISP under s 90 of the Evidence Act because, the pretext call having been raised, the police had an obligation as a matter of procedural fairness to put the pretext call to the respondent prior to the conclusion of the ERISP to provide him with an opportunity to explain any inconsistencies between what he had told the complainant and what he had told police. Ms Hall contended that the failure to provide him with the opportunity in the ERISP had the consequence that its admission was unfair. She submitted that it put the respondent in the invidious position of having to choose between giving evidence to explain the inconsistencies (thereby exposing himself to cross-examination) or exercising his right to silence and leaving the inconsistencies unexplained. When it was put to Ms Hall that the decision whether to give evidence was one which would have had to be made in any event, she submitted that there was an unfairness in his not having been asked to explain the discrepancies at the time of the ERISP when his recollection of the pretext call and the incident itself could be expected to be fresher in his memory than it would be at the trial.
4. In effect, the respondent sought to defend the trial judge's exclusion of the ERISP on the basis that the investigating police had an obligation to accord procedural fairness to him, which required them, in the context of the present case to put the pretext call to him in the ERISP to give him an opportunity to explain the inconsistencies between what he had said to the complainant on 6 October 2015 and what he had told the police had happened in the ERISP on 1 December 2015.

This Court's jurisdiction under s 5F of the Criminal Appeal Act

1. The question whether the exclusion of evidence substantially weakens the Crown case for the purpose of this Court's jurisdiction under s 5F(3A) of the Criminal Appeal Act is to be determined in the context of the whole of the Crown case. The reliability of the evidence is not relevant for this purpose as the evidence is to be taken as its most favourable to the Crown: R v DRF [2015] NSWCCA 181 at [25] (Simpson JA, Leeming JA and Schmidt J agreeing). The Crown bears the onus of persuading this Court that the evidence excluded by the trial judge has the character provided for in s 5F(3A) of the Criminal Appeal Act: R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 at [39] (Spigelman CJ).
2. I am satisfied that the exclusion of the ERISP substantially weakens the Crown case. If the ERISP is not before the jury, the only evidence of the respondent's version in the Crown case is the recording of the pretext call. The jury would be entitled to give the pretext call greater weight if the jury believed that it was the only version given by the respondent but would be entitled to give it substantially less weight, or reject it, if it was aware that a different version had been given on another occasion. Moreover, the ERISP contains various admissions which are important to the Crown case. For example, in the ERISP the respondent said that the complainant was "sleepy" when he initiated sex whereas in the pretext call, his version was that they were having sex and she was in the "doggy" position. The respondent also admitted in the ERISP that he did not think that she was consenting to anal sex.

Whether the trial judge's decision to exclude the evidence was erroneous

1. Counsel for the respondent correctly accepted that there was no basis on which the trial judge could exclude the evidence under s 138 of the Evidence Act. It is plain that the respondent was appropriately warned before he decided to participate in the ERISP. No non-compliance with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) has been identified. The transcript of the ERISP recorded that the respondent was told that he did not have to participate but that, if he did, anything he said could be used in evidence. At the conclusion of the ERISP the respondent confirmed that no threat or promise had been made to him.
2. Having regard to the basis on which the respondent sought to defend the trial judge's ruling it is necessary to turn to s 90 of the Evidence Act which 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."
3. The leading case on s 90 of the Evidence Act is Em v The Queen (2007) 232 CLR 67; [2007] HCA 46, which established that the onus is on the accused to establish unfairness. In Em v The Queen the appellant, who was suspected of serious criminal offences, had made it clear to police that he would not speak to them if what he said was recorded. Police obtained a warrant under the Listening Devices Act 1984 (NSW) and recorded what the accused said to them, even though they knew that he was only prepared to speak to them if no recording was made; that he believed that what he said was not being recorded; and that he would not have spoken to them at all if he had realised that it was being recorded. The High Court held that it was not unfair, within the meaning of s 90 of the Evidence Act, for the recordings of the conversations to be admitted in evidence against him at trial.
4. In Em v The Queen Gummow and Hayne JJ identified as the "central issue": "[107] [W]hether the evidence of admissions should not have been admitted because, having regard to the circumstances in which they were made, it would be unfair to the defendant to use the evidence. That question requires consideration of whether there was identified some aspect of the circumstances in which the admissions were made that revealed why the use of the evidence, at the trial of the person who made the admissions, 'would be unfair'. That is, the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as 'fair' or 'unfair'."
5. The relationship between ss 90 and 138 was addressed by Gummow and Hayne JJ, who said as follows: "[119] The very nature of the inquiries required under s 138 denies that the application of s 90 can be approached from a premise that attaches weight to an assertion that what was done by police was 'improper'. In particular, the discretion to exclude the evidence of what the appellant told police is not to be engaged by simply asserting that a full caution was required, or expected, or should have been administered to the appellant. If that assertion is well founded (and it was not demonstrated, in argument, why it was) it fell to be considered under s 138. It was not relevant to the exercise of a discretion under s 90. [120] Nor was the discretion to be engaged by asserting that the conduct of the police is worthy of condemnation for more general (if unspecified) reasons. First, it was not suggested that what the police did was unlawful. Indeed, argument proceeded on the footing that the police recorded their conversation with the appellant under warrants issued under the Listening Devices Act 1984 (NSW) that permitted them to do just that. Secondly, as to the other limb of s 138, concerning improperly obtained evidence, either what the police did was not improper, or if it is asserted that it was (and again it was not demonstrated in argument why that was so) the significance to be attached to the impropriety of the conduct was to be judged according to the balancing exercise that was called for by s 138. It was not a matter that bore upon the exercise of the discretion under s 90. [121] It also follows from the conclusions just expressed about the operation of s 138 that to begin examination of the operation of s 90 from a premise which attaches determinative significance to the fact that the appellant had the mistaken belief (caused or contributed to by the police) that what he said was not being recorded and would not be admissible in evidence would be erroneous."
6. In the present case, unlike Em v The Queen, the respondent knew that the ERISP was being recorded and could be used in evidence against him. He knew that he had a choice to participate in the ERISP or to remain silent and that, if he chose the latter, his silence could not be used against him. Even if it be accepted that the respondent assumed that the police were not aware of his telephone conversation with the complainant, it is difficult to see how this would make the use of the ERISP at the trial unfair when the use of the evidence considered in Em v The Queen was not regarded as unfair. The matters raised by the respondent, relating to whether the police ought to have put the pretext call to him in the ERISP to invite his response and provide him with an opportunity to explain the inconsistencies between what he had said to the police in the ERISP and what he had said to the complainant in the pretext call, would appear to fall squarely within the matters that are not relevant to s 90 of the Evidence Act, but would have been relevant had an objection been made pursuant to s 138. I am not persuaded that there was anything sinister in the police questions about the telephone call, which had been raised by the respondent. Their questions were consistent with their need to find out whether the telephone call to which the respondent was referring was the same call as the pretext call, or was a separate call. I do not discern anything unfair about their questions.
7. In any event, it is difficult to see, once it was accepted that there was no illegality or impropriety associated with the ERISP for the purposes of s 138 of the Evidence Act, how any omission to disclose the pretext call in the ERISP could be germane to the discretion under s 90.
8. Moreover, since the respondent bore the onus of establishing unfairness, if he sought to rely on some matter relating to, for example, recollection, he could have given evidence on the voir dire as to why, say, he would have been in a better position to explain the discrepancies between what he had said in the pretext call and what he said in the ERISP at the time of the ERISP: see EM at [64]. He gave no evidence on the voir dire.
9. Nor could it be said that it was unfair to the respondent to use the ERISP to impugn the credibility of the version he gave in the pretext call since this was the inevitable consequence of his having given one version in conversation with the complainant on 6 October 2015 and another to the police in the ERISP on 1 December 2015. The respondent's case at trial will become apparent when the complainant is cross-examined. He will be obliged, in giving his counsel instructions for that cross-examination to choose whether to instruct her to put the version he gave in the pretext call, the version he gave in the ERISP, or some other version. At the close of the Crown case, he will be obliged to decide whether to give evidence to explain the inconsistencies between the ERISP and the pretext call or to remain silent. While such decisions may be invidious, they do not make the use of the ERISP unfair.
10. If the approach taken by the trial judge, endorsed by the respondent's counsel in the limited respect set out above, were adopted, it would import into the investigation of criminal offences a requirement to accord procedural fairness which would be at odds with fundamental principle.
11. The obligation to procedural fairness arises where there is an anterior decision to be made before a power is exercised. This situation does not arise where police are investigating the commission of a criminal offence. In LDF Enterprise Pty Ltd v State of New South Wales [2017] NSWCA 89 the Court of Appeal (Leeming JA, Basten and Macfarlan JJA agreeing) rejected an argument that investigating officers had a duty to accord procedural fairness before they entered on land to conduct a search pursuant to a statutory power. They said, of present relevance at [31]: "[T]he powers of police officers to conduct investigations, arrest persons and obtain search warrants are not subject to any obligation to give the object of the proposed action an opportunity to be 'heard' before the action is taken.
12. The argument that procedural fairness was required in the exercise of powers conferred on maritime officers to detain persons at sea and remove them to another place was rejected by the High Court in CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 at [51]-[53] (French CJ); [358]-[361] and [366]-[368] (Gageler J, Crennan J at [227] agreeing) and [500]-[503] (Keane J).
13. While it is not uncommon for police to put various matters to an accused person in an ERISP to invite a response, there is no obligation whatsoever on the police to do so. In the criminal context, procedural fairness comes at a later stage, where, before trial, the Crown is obliged to disclose to the accused all the material within its possession which could be relevant to the charge and, at trial, it is obliged to call all its evidence and close its case before the accused is called upon to decide whether to give evidence in response. A failure to disclose all relevant material pre-trial may result in the quashing of a verdict of guilty: Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 at [17] (Gummow, Hayne, Callinan and Heydon JJ). The common law disclosure requirements on the Crown and the consequences of non-compliance are reflected in provisions such as ss 141, 142, 144 and 146 of the Criminal Procedure Act.

Conclusion

1. For the reasons given above, the trial judge's reasons demonstrated that the discretion under s 90 of the Evidence Act miscarried. The respondent has not discharged his onus of establishing that the admission of the ERISP was unfair.
2. In addition to the orders made by this Court on 23 November 2017, the Crown also sought an order that the ERISP is admissible. I would have been inclined to make an order in those terms but for the fact that, for reasons which are not apparent, the trial judge discharged the jury on 22 November 2017 and listed the matter for trial on 28 November 2017. It has been held that it is not appropriate for this Court to make rulings on the admission of evidence in advance of the trial: R v ELD [2004] NSWCCA 219 at [23]-[29] and [46] (Bell J, Howie and Hislop JJ agreeing) and R v GAC [2007] NSWCCA 315 at [52] (Giles JA, RS Hulme and Hislop JJ agreeing). While it is difficult to see how any different approach in the forthcoming trial could alter the admissibility of the ERISP, it would seem to be inappropriate for this Court to order that the ERISP was admissible, as would have been appropriate had the jury not been discharged.

Amendments 04 April 2024 - Publication restriction removed - judgment republished 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: 04 April 2024