R v Reitberger

Judgment 1HIS HONOUR: In this matter the complainant in the sexual assault trial was a patient of the accused who at the time was a medical practitioner in a practice at Burwood. The complainant had apparently seen the accused some years before but the consultation on 13 June 2012 was entirely coincidental. The complainant alleges that at this visit the accused masturbated him, rubbed his perineum and anal area and inserted his finger in his anus. The accused is charged with two counts of indecent assault and one count of sexual intercourse without consent. 2Whilst there is no dispute that the complainant had a consultation with the accused on the day in question, the assaults are denied and the significant issue in the case as I understand it is going to be whether or not what occurred to the complainant was as a result of an examination for a proper medical purpose. 3Apart from the alleged admissions made by the accused to the complainant in a lawfully recorded telephone conversation, the only evidence in the Crown case is the complainant's own evidence and evidence of early complaint to a number of other people. 4The defence seeks to have the telephone conversations excluded from the jury. I will refer to these what have been called "pretext" conversations as call 1 and call 2. Call 1 was made on 2 November 2012 at about 1.30pm and lasted about four and a half minutes. Call 2 was made on the same day at 1.55pm and is somewhat longer. Both were recorded and the transcripts are available. 5Mr Strickland SC for the defence seeks to have these conversations excluded under the provisions of either s 90 or s 137 and 138 of the Evidence Act. "Pretext" conversations have been considered by the New South Wales Court of Criminal Appeal in two relatively recent decisions Pavitt v R [2007] NSWCCA 88, (which was followed in the Victorian case of WK v R [2011] VSCA 345) and R v Burton [2013] NSWCCA 335. Mr Strickland has made detailed oral and written submissions arguing amongst other things that Pavitt and Burton wrongly applied a test initially set out by the Canadian Supreme Court in Broyles case. 6In the present case the complainant formally complained to the HCCC in the first instance, although he had complained earlier to his sister and some other organisations. This HCCC complaint was by way of a written letter about what had happened, which was then followed by a formal statement, much akin to a police statement. The HCCC notified police who contacted the complainant and obtained a further statement, which basically confirmed the statement he'd made to the HCCC. The complainant's written letter was received by the HCCC on 19 June and the formal statement taken by the HCCC is dated 28 June. The police statement was made on 15 August, so that as far as the complete details of the matters complained of, they were in writing within three weeks of the alleged offences being committed. 7According to the complainant who has given evidence on the voir dire, the HCCC told him that police might be able to use other investigative techniques like making contact with the accused, something that presumably the HCCC did not feel that they were able to do. The complainant was overseas when initially contacted by police. Some time prior to 2 November 2012 and after he had made his statement, Detective Senior Constable Page, the officer in charge, asked the complainant if he would be prepared to either telephone the accused or wear a body wire to a meeting with the accused. 8The complainant agreed to that proposal and an application was then made for a warrant under the Surveillance Devices Act to record any such telephone conversation and that warrant was granted. 9Preparatory to making the calls the complainant made two pages of notes at home, that he no longer has, in order to assist him during the call. He was not told what questions to ask nor was he given a checklist or a script to follow by the police. Nor was he told that he should tell the truth, not ask leading questions or not make inducements to the accused. The calls were made from the Burwood Police Station with the complainant alone in the room and not able to be influenced by anyone else. 10After the first call was made the complainant signalled that the call was over and Detective Page entered the room. They both listened to what had been said during the recording. According to the complainant Detective Page was happy with the call but asked the complainant if he would be prepared to ring the accused again in circumstances where the complainant was urged not to worry about the accused becoming suspicious of the purpose of the call. 11The first call had ended with the accused inviting the complainant to ring again if he wanted to talk to him rather than coming to see him. He, the accused, had in fact supplied the complainant with his mobile number during that first conversation. 12About 20 minutes after the first call Detective Senior Constable Page left the room and the complainant made the second and longer call. Detective Senior Constable Page acknowledged that from his point of view, certainly at the time when he was asked questions during the voir dire, he wanted to get further evidence of the allegation that the accused had penetrated the complainant's anus with his finger. 13I am satisfied that the police did nothing to influence the course of either conversation other than to encourage discussion on the matters in issue. Detective Senior Constable Page acknowledged that prior to these calls he had enough evidence to charge the accused and arrest him, at which point of course he would have been obliged to issue a caution. But he wanted to see if he could obtain some admissions as to the conduct in question. He instructed the HCCC not to approach the accused as it might prejudice police investigations and alert the accused about things such as phone calls being attempted. He agreed that he did this to circumvent the requirement for a caution which would be required if the accused was arrested. He said he used the complainant as an investigative tool. At p 13 of the transcript he also acknowledged that this was to circumvent the requirement that if a police officer were to speak to the accused he would have had to have cautioned him. 14What was said by the accused in the first call could be regarded as equivocal and may not have amounted to an admission as to the digital anal penetration, although that is really a matter of fact. The second call did provide evidence of the penetration, although again in circumstances that, it could be argued, did not necessarily involve criminal conduct on the part of the accused. 15The complainant was, as he said and understandably, very nervous prior to and during these calls. He admitted that certain things that he said to the accused were not the truth such as:- that he had not told anyone else about what had occurred; that he only wanted to talk about what had occurred with the accused; and that he would be more flattered if the reason for the conduct of the accused was the accused's attraction for the complainant. However in the second conversation at p 12 of the transcript he acknowledged to the accused that although he said he was flattered he actually was not and he had only said in the first conversation because he was nervous. 16The defence argues that statements like this amounted to misrepresentations. It is further argued that the complainant saying things like, "If you admit you did wrong I would feel more comfortable" or, "I prefer you just to be real with me then I'd feel better" were inducements. . Of course misrepresentations and inducements would tend to invalidate anything said to police under caution in a record of interview. 17Looking at the various authorities, both Australian and overseas, there are a wide variety of different scenarios involving so called "pretext" or "entrapment" conversations and depending upon the nature of the conversation and the persons having it, different considerations may well apply in each circumstance. In some instances the police officer has been or a police officer has been the undercover instigator of the conversation. In others a friend or an acquaintance of an accused has been used by the police to instigate a conversation. In the cases of Pavitt and Burton the victim was used by police to instigate the conversations. I am aware of victims of their own volition illegally recording conversations with alleged perpetrators in order to be able to present that material to the authorities. 18In Pavitt McColl JA and Latham J said at paras 71, 72 and 73 as follows: "We would add that views may differ about whether a complainant is a state agent even if the conversation is recorded in circumstances facilitated by the police. [I omit a reference to a case there] For our part we would not readily apply a label of state agent to a complainant speaking to a suspect who had not been charged nor refused to speak to police. Rather we would look at the whole relationship as revealed by the participant's past history and what is revealed by the actual conversation. It maybe relevant to consider whether the police scripted the conversation. Further whilst Iacobucci J [who was one of the judges in the Broyle's case [1991] 3 SCR 595] did not see it as necessary to recognise a special test for cases involving a victim speaking to the accused. In our opinion, with respect, it might be thought that conversations in such circumstances were more likely to be reliable as the suspect would have no occasion to boast, seek to big note him or herself and to the extent the victim put allegations that the suspect had committed a criminal act vis a vis him or her the subject would more readily reject the proposition if it was false. Police could not anticipate that a suspect would readily make admissions to a person asserting he had committed a criminal act against him.As Giles J A said in EM v R, "Ordinarily persons do not make admissions against interests unless they're true"." 19Those words do not, it seems to me to raise a complainant in a sexual assault case to some sort of special category of persons who can never be agents of the state. In any particular case it will no doubt depend upon the circumstances of each matter. 20In most sexual assault cases the issue usually comes down to one person's word against another's.It is rare for there to be any eye witnesses other than the parties concerned. Corroboration of a victim's version is not legally a necessity, but a jury is warned to scrutinise a victim's evidence carefully if it's the only evidence against an accused person. Whilst complaint evidence can amount to corroboration, it has its own problems. It seems to me that it cannot be the case that police investigation of sexual assault must come to a halt once a complainant has made a statement confirming criminal conduct. Indeed once a person is arrested or charged, given the uncertainly of conviction beyond reasonable doubt where it's one person's word against another's, I do not see it as inappropriate for police to seek to obtain an admission using a victim as a means to an end, provided the police act appropriately. 21In the present case, the accused at the time was a medical practitioner of some lengthy experience. The complainant was a young man, aged twenty-three. He was seeing the doctor about a possible urinary tract infection, he then being in a relationship with a same sex partner. There was thus a well experienced doctor and a relatively vulnerable patient, confronting each other. It seems to me it cannot be suggested that the complainant was in a position of emotional or subjective superiority in relation to the accused, or that he was in a position to exploit the accused in some way, either then or at the time of the telephone call. 22There was no apparent unease on the part of the accused during the conversation. He could have ended it at any time by saying something like, "Look I don't know what you're talking about." It's suggested that the accused was vulnerable because he was confronted with an emotional patient who needed reassurance and hence, some of the ambivalent responses by the accused to the questions and statements that were being made. 23I don't accept that the conversation was scripted in any way or influenced, prejudicially to the accused, by the police. I do accept that the conversation would probably not have occurred but for the police requesting that process to be undertaken and the conversations were certainly not part of any sort of ongoing relationship between the complainant and the accused as appears have been the case to some degree, in Pavitt but certainly in Burton. No doubt, there was concern as to the bizarre nature of the allegations, in the circumstances, against a medical practitioner and that it was important to get as much evidence as possible to support the complainant's version of events. 24If "pretext" conversations are to be regarded as lawful and admissible, depending on the circumstances, I cannot see that police officers would be required, especially in the case of a sexual assault complainant, to discuss with that complainant what is meant by a misrepresentation, leading questions or inducements. To do so would, it seems to me, to engage in an artificiality that the cases seem to suggest is to be avoided. A spontaneous conversation with whatever faults it may have, is likely to be more believable than an artificial one. Clearly, there would be little purpose in such conversations if subterfuge, to some degree, was not part of the equation, provided that the subterfuge does not go to the core of the evidentiary benefit sought to be obtained. 25For example, in the present case, if admissions had been made consequent upon the complainant telling the accused, untruthfully, that he had aurally recorded what had happened to him on his mobile phone, that may be a situation warranting exclusion. But the matters complained of as being misrepresentations or lies or untruths, did not in my view make any difference to how the conversation developed or as to how any admissions were made. 26The accused was told on 8 November 2012, that an allegation had been made against him, by someone, of a sexual nature and he agreed to meet with police at the police station, on 15 November. On that date, when interviewed, he was not under arrest. He was given the usual caution at the interview and told he could leave at any time. He agreed to the interview even though he did not have a lawyer present. During the interview, he was asked questions about the conversations that he had with the complainant on 2 November. 27The later history of the matter is that on 28 November, he was given a court attendance notice to attend court on 9 January and the matter has taken its course since then. 28The accused has not called or given evidence on this application, but reliance is placed on what he said in the record of interview by way of explanation as to what was said to him in the two conversations and as to how the accused reacted to that situation and the questions that were being asked. 29In R v Swaffield: Pavic v R 192 CLR 159, which I will refer to as Swaffield and Pavic, in the joint judgment at para 100, the following was said in conclusion in the Pavic case; "No caution was administered by Clancy which is hardly surprising in the circumstances." [Clancy being the person that the police had asked to speak with, the accused.] "The circumstances are close to those in Broyles, the Canadian Decision. As in Broyles, the person with whom Pavic spoke must be regarded as an agent of the state. A meeting was not directly set up by the police, but Clancy spoke with Pavic at the request of the police, who equipped him with a recording device. If Broyles is applied, the next question is whether the admissions by Pavic were elicited by Clancy, were made in the course of a conversation. Put another way, was there an interrogation by Clancy. Pavic argued that he was misled by Clancy to making the admissions he did. The trial judge said "whilst the role of the accused in the killing was volunteered by him to Clancy in a somewhat limited fashion, it cannot be said to be the result of or inexplicably linked to the expressed fear of Clancy that he may be charged with an offence". In all the circumstances, where is no sufficient reason to interfere with the trial judges refusal to exclude the evidence of the conversation." 30The Pavic appeal was dismissed. 31Whilst the Canadian cases are referred to in Swaffield, the principles enunciated , partly in Broyles case, are not specifically adopted. Brennan CJ did not refer to either of the Canadian cases. 32The plurality or joint judgment said at paragraphs 83 and subsequently as follows; "The Canadian authorities are instructive in this regard, though it is necessary to keep in mind the existence of the Canadian Charter of Rights and Freedoms and to identify the extent to which any authority turns on the language of the charter." 33The Court then went to refer to the case of R v Hebert, which was the other case. It then went to consider R v Broyles. At paras 87 and 88, the judgement said of Broyles case; "The Court identified two questions which are necessary for decision but which do not have to be answered in Hebert. The first was whether the friend was an agent of the state. The second was whether the accused's statement had been elicited by the friend." Then at para 89; "The Australian decisions generally have not expressed the relevant principles by reference to the informed choice spoken of in Canadian cases. At least in terms of voluntariness, they tend to approach the matter in terms of an immunity from compulsion. The emphasis has been on whether duress has been brought to bear on the suspect, that is whether the will has been overborne in some way. That emphasis is well placed when voluntariness is at issue but it is too narrow when the exercise of discretion is involved." 34Section 90 of the Evidence Act creates a test of unfairness to an accused in deciding whether or not evidence of admissions by the prosecution is to be admitted. In Swaffield, para 53, the Court said amongst other things; "The term unfairness in this sense is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement. Unfairness then relates to the right of an accused to a fair trial. In that situation, the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be for instance that no confession might have been made at all had the police investigation been properly conducted. Once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred." 35In determining unfairness then, the Court is required to consider a confession's reliability and or whether it's prejudicial value is unfairly greater than it's probative value, bearing in mind that admissions will always be prejudicial to an accused. 36The Court may also need to look at policy considerations even where no unfairness has been demonstrated, particularly if it established no confession might have been made if the investigation had been properly conducted. That is a reference there to Duke (1989) CLR 508 at 513. 37Section 98 of the Evidence Act is the coincidence evidence section and it restricts the use of coincidence evidence to cases where the probative value substantially outweighs any prejudicial effect. Section 137 is an overarching restriction on evidence being admitted if is probative value is outweighed by the danger of unfair prejudice to an accused. The so-called balancing test as to whether a jury will unfairly use the evidence in a way other than what it was intended to prove. Section 138 excludes evidence obtained in consequence of an impropriety unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which it was obtained. This is essentially a public policy rule. 38At the outset it is difficult in reading appellate cases, to get a flavour of the evidence sought to be excluded in each case. Thus comparing cases factually may be unhelpful in applying the ratio of a decided case to the case being tried in the matter before me. Much will depend upon the actual circumstances of each individual matter. The evidence on this application is a matter of record. It seems to me inappropriate to refer extensively to that material in a judgment on admissibility where the trial is now proceeding. Nor is it my role, it seems to me, to embark on a detail exegesis of the law on this topic which has occupied appellate courts to a significant degree. 39The accused argues in regard to s 90 that unfairness is not a defined concept. Reference is made to the case of Duke v R, where amongst other things it was said that, trickery, misrepresentation, cross-examination going beyond the clarification of information voluntarily given, to name but some improprieties, may justify rejection of a confession if the impropriety has some material effect on the confessionalist, albeit the confession is unreliable and was apparently made in the exercise of a free choice to speak or be silent. 40The Court went on to say the effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case. The first consideration it is argued, is a denial of important procedural rights which an accused possesses. The second consideration is the reliability or lack thereof of the admission. The other issue is the accused's freedom to choose to speak or not to speak to the police. 41It is argued that when an accused is interviewed by the police he has certain rights. The most important of those rights is the right to silence. It is also the right, when arrested, to be informed of the nature of the charges the police are investigating. Covert recordings deny the procedural right of (a) the accused choosing whether to speak to the police and (b) the accused knowing that he is under investigation for a particular charge. 42Considerable reliance is placed on Broyles case by the defence which, it suggested, is authority for a number of propositions. They have been set out in the helpful submissions from Mr Strickland. They are, essentially:- (1)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. (2)Did the state agent actively seek out information such that the exchange could be characterised as akin to interrogation or did he or she conduct his or her part in the conversation as someone in the role the accused believed the informant to be playing would ordinarily have done. (3)It is the authorities who are in a position to control the actions of the informer. If they fail to do so, they ought not benefit from that failure at the expense of the accused. 43It is quite clear, and this is argued in Pavic, that the High Court certainly regarded the informer as an agent of the state and certainly regarded that whatever was said by Mr Pavic was elicited in that the accused was interrogated by the informer. Whether that amounts to an adoption of the principles in Broyle's is perhaps a matter for another time. 44Reference was then made to the case of Burton, particularly to Justice Simpson (who gave the Court's judgment) at paras (124) and (127) where her Honour found the complainant was not an agent of the State because she was satisfied the conversation would have occurred anyhow and that the admissions made were not elicited because the conversation was not a functional interrogation. 45Burton is substantially factually different to the present case for the reasons I have already stated. That is that the conversations in the case before me would not have happened but for police intervention and secondly there was no suggestion of any ongoing relationship that would be of any relevance. 46In Pavitt the factual circumstances were somewhat more akin to the present case except that the time delay between the offences and the telephone call were some 16 or 17 years as opposed to four months in the present case. As well the police sat in on the conversation with the complainant and even suggested questions to the complainant by way of giving notes to the complainant. Pavitt had apparently been a neighbour of the complainant when the latter was a young man and sexually assaulted him between 1983 and 1987. The complainant contacted police in 2002 and the impugned telephone calls occurred in 2003. 47In Pavitt McColl J A and Latham J set out in para (70) some of the considerations to be taken into account in this type of evidence. The first (a)is that the underlying consideration in the admissibility of covertly recorded conversations is looking at the accused's freedom to choose to speak o the police and the extent to which that freedom has been impugned. (b)If that freedom is impugned the Court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted. A conclusion that some or all of the Broyle's factors were present did not lead to the admissions being excluded in either Pavic or Carter's cases. (c) Even if there is no unfairness the Court may consider that having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable and in regard to prevailing community standards which is the public police issue. (d)The question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and or improper include whether the accused had previously indicated that he or she had refused to speak to the police. 48I interpolate here that there is no dispute that prior to this telephone conversation no-one had approached the accused or warned him in anyway that there was any ongoing investigation. But I think the point about what the Court says in (d) is that if a person has been approached by either the police or someone else and said they do not want to speak to the police than that is a fairly significant matter to be taken into account. In this case it is neutral because the approach was not made. (e)The right to silence will only be infringed where it was the informant who caused the accused to make the statement and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly two distinct inquiries are required:-.