R v Ryan

The Crown Case 4What follows is a summary of the case the Crown seeks to prove. The complainant was born on 12 February 1980. In 1993 when she was 12 or 13 years of age her mother met and began a relationship with the respondent. In October 1993 the complainant and her mother moved into the respondent's home. 5The respondent was physically affectionate towards the complainant from the outset. The respondent frequently told her that such physical affection was ordinary behaviour between fathers and daughters. The respondent later began to touch the complainant's breasts and genitalia. He reassured her that this was also normal father-daughter behaviour, although he cautioned her not to tell anyone. 6The various indecent assaults included touching the complainant's breasts and genitalia on the outside of, and inside her clothing. These assaults occurred in the complainant's bed at night or during drives to and from school. The respondent frequently told the complainant that he wanted to be her father and that fathers and daughters behaved in this way. He told her that her mother would be much happier if they had a father/daughter relationship. 7In 1994 the complainant complained about the respondent's behaviour towards her. The Department of Community Services and the police became involved. After a few days, the complainant retracted her allegations, claiming she had made them up. She and her mother continued to live with the respondent. 8Thereafter, the behaviour of the respondent escalated to regular acts of sexual intercourse by penile penetration of the complainant's mouth, vagina and anus. The complainant did not resist these assaults, partly because she believed it was normal and partly because she was in fear of the respondent and his level of control over her. 9The complainant ultimately complained to a school friend that the respondent would touch and lick her breasts, touch her clitoris and have her suck his penis. When the complainant was 15 or 16 years of age the complainant also told her brother that the respondent had been sexually molesting her. At that particular time, the complainant had run away from home and was staying with friends. She returned to the family home shortly thereafter. 10Shortly before the complainant's 18th birthday, the respondent formally adopted the complainant and she changed her surname to Ryan. The relationship between the complainant and the respondent became more physically violent and oppressive. 11In early 2000 the complainant's mother separated from the respondent and moved away. The complainant continued to live with the respondent. Shortly after her mother left the premises, the respondent assaulted the complainant causing injuries that required her hospitalisation. The respondent was charged by police with assault, but the charge was later dismissed when the complainant failed to attend the hearing. 12During the years the complainant lived with the respondent, other persons noticed the unusual nature of the respondent's relationship with her, including the purchase of expensive gifts, such as cars and revealing clothing. The respondent also conducted himself in a sexually provocative way with the complainant, such as arranging for a male stripper to attend her 16th birthday function and organising for the stripper to be paid an additional fee if he had sex with the complainant. 13In late 2000, the complainant's maternal uncle assisted her to leave the respondent's house and she moved to her mother's home. 14In May 2010 the complainant contacted police and made a statement setting out the sexual and physical assaults upon her from the age of 13 or 14 until the time she left the respondent's home in late 2000. However, charges were not laid at this time. 15In early 2011 the respondent made enquiries of the complainant through a former school friend. The respondent asked the school friend to have the complainant contact him and left his business card with her. The school friend conveyed this request to the complainant. A warrant was obtained authorising the interception of telephone calls between the complainant and the respondent. 16The complainant telephoned the respondent on 30 June, 7 July, 18 July and 19 July 2011. Each of these conversations was lawfully recorded. On 24 July 2011 the complainant met with the respondent in a public park. The conversation was again lawfully recorded via a listening device. The telephone calls and the conversation in the park were the subject of the voir dire proceedings.

The Court's Jurisdiction 17The enlivening of this Court's jurisdiction pursuant to s 5F(3A) of the Act arises where the ruling on the admissibility of the evidence either eliminates or substantially weakens the Crown case. The Crown submits that the exclusion of the recorded conversations substantially weakens the Crown case. 18The Crown case falls roughly into six categories :- (i)Direct evidence from the complainant of the commission of the alleged offences. (ii)Evidence supporting to some extent peripheral detail relevant to the incidents alleged by the complainant. (iii)Complaint evidence, admissible pursuant to ss 66 and/or 108 of the Evidence Act 1995. (iv)Context evidence which establishes the nature of the relationship between the complainant and the respondent. (v)Tendency evidence. (vi)Statements in the nature of admissions by the respondent in the excluded recordings of conversations (the pretext conversations). 19The first category consists of a 49 page statement made by the complainant to police in May 2010. The complainant gives details of the several charges in addition to numerous instances of other sexual and physical assaults upon her during the time she lived with the respondent. The Crown proposes to rely upon the generally controlling and oppressive nature of the relationship, as described by the complainant, in order to explain her submission over many years, even after her mother left the family home. 20As is frequently the case with allegations of sexual assault by a person in loco parentis against a child, as well as allegations of sexual intercourse without consent, the complainant's evidence of the sexual and physical assaults against her is the only direct evidence of the charges on indictment. A direction consistent with R v Murray (1987) 11 NSWLR 12 will no doubt be requested and given, that is, that the jury ought scrutinise the complainant's evidence carefully before acting upon it to convict the respondent. 21In such cases, where the jury must be satisfied beyond reasonable doubt of the truthfulness of the complainant's evidence, and where significant delay occurs between the commission of the offences and complaint (entitling the respondent to a direction concerning the significant forensic disadvantage occasioned by that delay), issues of credibility and reliability obviously loom large. In this trial, there is an additional overlay : the complainant has previously retracted a complaint and in her early adult years the complainant attempted suicide and indulged in drug abuse. These are all fertile areas for an effective and entirely legitimate attack upon the complainant's veracity. However, for the purpose of determining jurisdiction under s 5F(3A), these matters should be put to one side : R v Shamouil [2006] NSWCCA 112 ; 66 NSWLR 228, at [39] - [40]. 22The second category of evidence derives principally from the complainant's mother, a school friend of the complainant and a former girlfriend of the respondent. That evidence generally establishes that the respondent was often alone with the complainant in the house, that he was seen emerging from her bedroom at night, that he bought expensive gifts and hired a male stripper for her 16th birthday. 23The complaint evidence (category (iii)) comes from two school friends to whom the complainant separately complained at about the time of her 16th birthday. It appears likely that this evidence would be admitted under s 66 of the Evidence Act or under s 108 in response to a suggestion in cross examination that the allegations are fabrications. Failing a restriction as to its use (s 136), the complaint evidence may be available towards proof of some of the charges (s 60). 24Categories (iv) and (v) overlap to a considerable extent. A number of witnesses are able to give evidence of seeing the respondent treat the complainant in a highly sexualised way. This evidence, the evidence relating to the hire of a male stripper, evidence of physical assaults upon the complainant and evidence relating to the respondent's role in paying for a motel room so that the complainant could have sexual intercourse with her first boyfriend, are pressed as tendency evidence by the Crown. The admissibility of that evidence upon that basis is yet to be determined. However, much, if not all of it may well be available as context evidence, in that it explains a number of features of the complainant's behaviour that might otherwise undermine her credibility. The complainant's retraction of her complaint when she was 14 years of age, her failure to complain thereafter and her decision to remain living with the respondent after her mother had left the relationship, all fall to be evaluated against the background of the nature of the relationship between the complainant and the respondent. 25It is convenient here to summarise the most salient aspects of the excluded conversations. In so doing, we have omitted numerous references by the complainant to physical assaults and sexual activity between herself and the respondent which the respondent does not deny, although his responses do not amount to clear admissions. 26The most salient aspects of the telephone conversations include references by the complainant to introducing "the sexual relationship .. into the house" and asking the respondent why he introduced "that sexual part into the father and daughter relationship" at a time when the complainant was 12 or 13 years of age. The respondent declines to talk about it over the phone on the basis that "too many people can hear it". The respondent also acknowledges that he should not have "belted" the complainant on a number of occasions. Later references by the complainant to her need to discuss their relationship so that she could "put it behind her" and "move on", coupled with the respondent's concern that the complainant would record any conversation wherein that relationship was discussed, demonstrate an understanding on the part of the respondent of the subject matter of the conversation and the likely topic of discussion at any future face-to-face meeting. 27During the conversation in the park, the respondent admits to hitting the complainant, claims that the complainant initiated a sexual relationship between them, maintains that "a lot of fathers" have a sexual relationship with their daughters, agrees with the complainant that there was sexual activity between them which he stopped and then resumed on a number of occasions, admits "introducing" sex into the father/daughter relationship, admits remorse "for what [he had] done" to the complainant and admits that he had enjoyed "the sex part" of their relationship. 28The probative effect of the conversations is illustrated by the following two passages: "Complainant: [W]hy did you introduce the sex part like, why didn't, if I was that type of a person, I was saying it like, at the age of 12 to 13 I said to you, I said, if I came onto you in the wrong sense, why didn't you come up to me knowing too well that it was wrong? Why didn't you come up to me and say look, that's not the right thing, way to go about things? Why did you go ahead and completely act on it? Why did you go ahead and say to me yeah, yeah, yeah, that's fine, that's fine, that's what father's and daughters do? Respondent: Well they do, do, a lot of fathers do. You'd be surprised how many do it but anyway, that doesn't matter. I - Complainant: Do you think it's wrong for fathers and daughters to have sex? ........ Complaintant: Do you think it's right for fathers and daughters to do that? Respondent: No, No. Complainant: Well why did you continue to do it? Why did you continue to let it happen? Why did you continue - Respondent: Why did you continue to let it happen? Because you kept on agreeing with it." (emphasis added) .......... "Complainant: It's not something [ ....] that I want to sit here and talk, and talk about on a Sunday afternoon. O.K. But at the end of the day I've got to take, I've got to take the good with the bad and I've got to actually sit and talk about it for own wellbeing, my own mental health. Respondent: But [....] you, you make out that everything that done to you is, is, is all the bad things in life, which is bullshit. Complainant: The sex part of it, yeah, there, it was bad. Respondent: All right. Complainant: Are you saying that it was good? Are you saying that you enjoyed it? Respondent: Yes, I did, but anyway, I'm not saying it was right but I enjoyed it, yes." (emphasis added) 29The admissions contained within the recorded conversations are to be considered as part of the Crown case for the purposes of the jurisdictional ambit of s 5F(3A). The Court need not distinguish between the strength of the Crown case on individual counts and that it should proceed on the basis that the jury accepts the evidence summarised above, together with the excluded conversations, without attempting to qualify the weight that may be attached to that evidence. 30Both the content of these admissions and the manner in which they are made are highly probative of the Crown case. The Court listened to the recording of the conversation in the park for the purposes of determining whether the respondent appeared to be experiencing any difficulty hearing or understanding the complainant, as well as for the purpose of assessing the tenor of the conversation. The respondent responds appropriately, without pause, without seeking clarification or repetition from the complainant, and often in a belligerent and assertive voice. 31There is nothing equivocal about many of the respondent's statements in the course of these conversations. When one takes into account the respondent's assertions during his record of interview with police, after the recording is played to him, that he never had sex with the complainant, that she was speaking of having sex with other people whom she brought home on a regular basis, and that she had made the same false allegations against her natural father, the probative value of the recorded conversations is strengthened. 32Taking the Crown case in all six categories at its highest, that is, putting to one side issues of credibility and reliability, it is a cogent one. It is also clear that the exclusion of the recorded conversations renders it a much less cogent Crown case, in that it ultimately stands or falls on the complainant's evidence. We were therefore persuaded that the exclusion of the recorded conversations substantially weakens the prosecution case. Whilst not formally abandoning his written submissions which resisted that conclusion, the respondent's senior counsel only faintly argued the point on the hearing of the appeal.

The Evidence on the Voir Dire and the Trial Judge's Reasons 33The admission of the pretext conversations was resisted on the basis of ss 90 and 137 of the Evidence Act 1995. Following the voir dire hearing, the judge excluded the conversations on both bases. The judge's reasons focussed almost exclusively on the conversation in the park, although the telephone conversations that preceded it are integral to an appreciation of the respondent's decision to meet the complainant in person. 34Several findings of fact by the judge underpinned the exclusion of the evidence. It is important to appreciate those findings of fact and the extent to which, on the Crown submissions, they are not supported by the evidence. 35Thirteen findings of fact were made as follows :- (1)The respondent had a hearing impairment for many years prior to these events, namely nerve damage to his ear with some hearing loss and tinnitus for which he required a hearing aid. Without the hearing aid, he was troubled by background noise. (2)The respondent was not wearing his hearing aid on 24 July 2011 during the conversation in the public park. (3)A few days prior to the conversation in the park, the respondent had a back operation which debilitated him so that he could not drive and could not sit for periods of time. (4)During the conversation in the park, the respondent was in discomfort and pain, was irritable and aggravated and could not hear properly. (5)Parts of the recording of the conversation in the park, which was played to the respondent during his record of interview, were not comprehended by the respondent until it was played to him again when he was wearing a hearing aid. (6)The conversation in the park involved over talking, particularly by the complainant, with a level of frustration being exhibited by the respondent. His answers at various times were incomplete. (7)The complainant made lengthy assertions and statements. The respondent's responses were not fully articulated. (8)The respondent was in a vulnerable position, both medically and emotionally. (9)The complainant put no specific allegations to the respondent other than using terms such as "what we had" or "it" or "the sexual thing". (10)The respondent was overborne during the conversation in the park. (11)The complainant used trickery, subterfuge and lies in order to get the respondent to speak to her, thereby compromising his right to silence. (12)The explanation provided by the officer in charge for not charging the respondent prior to the conversation in the park is questionable. (13)The complainant was acting as an agent of the State in conducting the pretext conversations. 36Findings, 1, 2, 3, 4, and 5 derived substantially from the respondent's evidence and that of his step-son. 37The respondent's evidence was that he had suffered a work-related accident in 1970 which resulted in nerve damage to his left ear. He suffered from tinnitus and was under the care of an audiologist, whom he saw in March 2011 and again in 2012. The respondent said that he wore a hearing aid, although he attempted not to wear it on at least one day of the weekend "to let the ear canal dry". The respondent said that excessive noise makes him irritable and ringing in the ear makes it very difficult to hear. The respondent said that he did have the hearing aid in place during the record of interview with police, although he did not have the hearing aid in place during the conversation in the park on 24 July 2011. In addition, the respondent had undergone a back operation approximately a fortnight prior to the conversation in the park. He said that he was in pain, and could not sit for long periods of time. The pain and traffic noise made him irritable. 38The respondent's stepson drove the respondent to the park on the day in question. He agreed that he did not ask the complainant to repeat any particular part of the conversation. However he said that he was "very aggravated and .. didn't really want to be there, and .. . Didn't want to listen to all the rubbish that she was talking about. So [he] was answering questions to get it over and done with and get away from there." He claimed that he "couldn't hear anything correctly, properly". 39Under cross-examination, the respondent acknowledged that during the police interview he had asked the officer to repeat anything that he did not hear or understand. He also acknowledged that the recording which was played to him during the record of interview was not the first time that he had heard the conversation, given that he had been present when it originally took place. He agreed that he did not tell the police that there were "lots of little things" that he had heard for the first time during the record of interview. When asked what it was in the conversation that he heard differently, he replied "minor words which I can't tell you what they are now." 40The Crown Prosecutor then took the respondent to specific passages in the conversation and asked the respondent what portion of those passages the respondent did not hear. On each occasion the respondent agreed that he had heard the words but said that he had misunderstood what it was that the complainant was referring to. Ultimately the Crown Prosecutor put to the respondent "so really what you are saying is you didn't mishear what she said, or not hear it properly, just that you misunderstood what she was meaning by what she was saying?" To this question the respondent answered "I guess that's correct." 41The respondent's step son confirmed the back operation, the fact that the respondent was not wearing his hearing aid on the day in question and that the respondent "seemed a little bit aggravated and a bit distraught when he got back to the car." 42Whilst findings 1, 2 and 3 were open to her Honour, they did not, when taken together with all the evidence, support the essence of findings 4 and 5, which was that the respondent could not hear the complainant sufficiently in order to participate meaningfully in the conversation in the park. The respondent's general irritability and agitation arising from the back operation and the tinnitus were advanced by the respondent during the voir dire as an explanation for his generally gruff and aggressive tone of voice. His emotional state, his tinnitus and the extent to which he may have been vulnerable (finding 8) had little or no bearing on his capacity to hear the words spoken by the complainant and to comprehend them in the face of the respondent's own acknowledgement in cross-examination that he heard what the complainant was saying but misconstrued her meaning. 43It was never suggested that the respondent had any difficulty hearing and comprehending the complainant during the telephone calls. That was of some significance because during the first of those phone calls the respondent acknowledged that he had initiated contact with the complainant after 10 years by leaving his business card with a school friend of the complainant's in the expectation that the complainant would call him. 44Findings 6, 7 and 9 rest on the recording itself. Whatever construction may ultimately be placed upon the respondent's answers, when considered in the context of the conversation in its entirety, the judge was obliged to consider the probative value of the evidence at its highest for the purposes of the exercise required by ss 90 and 137. It was never contested that the respondent's statements in the conversation amounted to admissions. 45In the course of her reasons, her Honour acknowledged as much. Her Honour agreed with the Crown submission that any alternative meaning placed by the respondent upon the conversation is not relevant for the purposes of determining whether any given portion of the conversation is capable of amounting to an admission. 46Findings 10, 11, 12 and 13 constitute the substantive basis upon which the judge excluded the pretext conversations. The height of the submissions by senior counsel for the respondent was two-fold. First, that the respondent was the victim of trickery and subterfuge, that his choice to speak or remain silent had been compromised by the method of investigation adopted by the police, that is, that in effect the complainant had acted as an agent of the State. Second, that the references to the sexual relationship between the complainant and the respondent in the conversation were of such generality and vagueness that they could not be related to any of the 17 counts on the indictment and that accordingly, notwithstanding directions to the contrary, the jury would attribute undue weight to those admissions and be deflected from satisfaction beyond reasonable doubt of the ingredients of each particular charge. 47That her Honour accepted these submissions is evident from the following passage from her Honour's reasons :- Because of the marked generality and vagueness of the conversations, bearing in mind that the alleged sexual relationship took place over approximately 6 years, for which reason the charges of sexual intercourse against the accused are brought under different sections of the Act, depending on the age of the complainant at the time of the alleged offences, and for the reasons articulated by Mr Bellanto as set out above, I find that the probative value of the evidence sought to be relied upon as admissions is not high and is outweighed by the danger of unfair prejudice in the way that Mr Bellanto outlined and I exclude the evidence.

The Grounds of Appeal 48The Crown advances three grounds of appeal. The first two are related and may be dealt with together.

(1) The Trial Judge Erred in Finding that the Probative Value of the Evidence of Admissions was Not High.

(2) The Trial Judge Erred in Excluding the Evidence of Admissions Pursuant to s 137 of the Evidence Act. 49Section 137 of the Evidence Act provides that :- the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 50It is not necessary to repeat at length the flaws in the judge's assessment of the probative value of the admissions. Once it is accepted that there was no evidentiary basis upon which the judge could conclude that the respondent did not hear and comprehend what was being said by the complainant in the pretext conversations, the admissions provide powerful evidence in support of the Crown case. They contradict the respondent's own denials to police of any sexual relationship with, or physical abuse of, the complainant and they contradict the respondent's assertions that the complainant has fabricated the allegations. The generalised or vague references to "the sexual relationship" do not detract from that aspect of their probative value. For these reasons ground 1 was upheld. 51To the extent that the danger of unfair prejudice to the respondent was identified by the judge, her Honour appeared to simply adopt the submission of senior counsel to the effect that the jury would assign a weight to the admissions that they did not deserve. 52The danger of unfair prejudice of which s 137 speaks is the risk that the jury will "use the evidence or be affected by it in a way that the law does not permit": Pfennig v the Queen [1995] HCA 7; 182 CLR 461 at 528 (McHugh J), which may also be expressed as a likelihood that the jury will "give the evidence more weight than it deserves or ... the nature or content of the evidence may inflame the jury or divert the jurors from their task" : McHugh J in Festa v The Queen [2001] HCA 72; 208 CLR 593 at [51]. 53Apart from references to senior counsel's global submissions that "even strong directions" would not cure the risk of unfair prejudice, her Honour did not address the nature or extent of that risk in the instant case in the light of proper and ameliorative directions from the trial judge. Even where admissions are equivocal or ambiguous, and where a sexual relationship is not in issue, save for the timing of the sexual activity, such pretext conversations have been held admissible, provided the jury are properly directed : see Christian v R [2012] NSWCCA 34. Drawing on that decision, a number of directions are capable of curing relevant prejudice in this case, including :- 76 ... the jury ... should only use this evidence as an admission if they were satisfied that: (a) in respect of any particular allegation made in the pretext conversation, the [respondent] had by his speech, silence or conduct admitted the truth of the allegation; (b) to the extent that the Crown was relying on the [respondent's] silence or failure to deny an allegation, the circumstances were such that the [respondent] should have been expected to make a denial so that his reaction in failing to deny the allegation involved an admission of the truth of the allegation; (c) the [respondent's] response in respect of any particular allegation was not explicable by such possible explanations as a desire to placate the complainant, or frustration, etc; and ...................................................................... 77. ..that it would not be open to the jury to use the evidence as an admission of guilt in relation to any particular count on the indictment. 54This is a relatively straightforward case of admissions to a sexual relationship between a step-father and his daughter. Her Honour ought to have considered such directions, including reminding the jury of their obligation to find each charge proved beyond reasonable doubt. The failure to take this essential step in the weighing exercise mandated by s 137 constitutes an error of law : R v XY [2013] NSWCCA 121 at [68] per Basten JA ; at [177] per Simpson J; at [192] per Blanch J. 55For these reasons ground 2 was upheld.

(3) The Trial Judge Erred in Excluding Evidence of Admissions Pursuant to s 90 of the Evidence Act 56Section 90 of the Evidence Act provides :- 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. 57The operation of s 90 has not been doubted since Em v The Queen [2007] HCA 46 ; 239 ALR 204. Relevantly for present purposes, Gummow and Hayne JJ explained the role that s 90 plays within the Act as a whole. At [107] "the central issue" is identified :- ................ whether 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". 58What is capable of meeting the description "unfair" is incommensurate, depending upon the circumstances of the individual case. Whilst Justices Gummow and Hayne rejected issues of reliability as a relevant consideration for the purposes of s 90 [at 112], the other members of the Court in Em did not go quite so far. 59It is abundantly clear from the majority in Em that :- the mere fact that a conversation was being secretly recorded was not sufficient to make it "unfair" to the defendant to admit the recording into evidence. Yet decisions to record conversations with a particular accused person secretly are made because no recording would be possible if that accused person knew of the recording. Thus secret recordings often could not be made without some kind of trickery - a positive representation or conduct suggesting, and leading to the false assumption, that there was no recording being made, a deliberate failure to correct that false assumption, or conduct confirming that false assumption. per Gleeson CJ and Heydon J at [67] The appellant's argument, shorn of expressions like "trick" and "trickery", amounted to the propositions that what the police did, by interviewing the appellant as they did, was to be condemned, and that he had been misled into saying something that could be used in evidence against him. Neither of these propositions, whether taken separately or together, established that use at his trial of the evidence of what he said to police would be unfair. Per Gummow and Hayne JJ at [116] 60Returning to the trial judge's reasons for the exclusion of the pretext conversations pursuant to s 90, they may be summarised as follows. The judge accepted that the will of the respondent was overborne, that he was denied his right to silence and was effectively entrapped by the complainant ; that there was no dispute that the respondent left his business card with a school friend of the complainant, requesting that the complainant contact him but there was nothing sinister in that respect, insofar as the respondent was the complainant's adoptive father ; that the conversation was in the nature of an interrogation by the complainant ; that the respondent's statements were elicited at the behest of the police through the complainant as an agent of the State and that the conversation would not have taken place in the form or in the manner in which it did but for the intervention of the State or its agent. 61Having found that the respondent's freedom to choose to speak to the police had "been impugned, with unfairness to the respondent resulting", her Honour went on to observe :- Even if it could be considered that there is no unfairness, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards, given the lies, subterfuge and trickery engaged in by the complainant at the instigation of the police in order to have the respondent speak to her in the park when she was wearing a listening device. 62Furthermore, the judge was satisfied that the reliability of the alleged admissions was questionable on the basis of the respondent's hearing and physical impairments. 63Taking these considerations in turn, we do not accept that the respondent's participation in the conversation, including his tone of voice and the content of his exchanges with the complainant, support a finding that his will was relevantly overborne. Her Honour erred in finding to the contrary. It is abundantly clear from the recording itself that the respondent is assertive, sometimes aggressive, sometimes critical of the complainant, and at all times insistent on rejecting the complainant's construction of their relationship where it did not coincide with his own. 64We would also reject the contention that the respondent's freedom to choose to speak or remain silent was in some way compromised. The respondent knew that the complainant wished to speak to him about their past sexual relationship. The content of the telephone conversations confirms that the respondent was aware of the potentially incriminating nature of the discussion which the complainant proposed to have with him, otherwise he would not have expressed a fear in relation to the conversation being recorded. Nonetheless, he chose to meet the complainant in the park and he responded freely to her questions. 65We do not regard the characterisation of the conversation as an interrogation by the complainant to accurately reflect its content and tenor. Whilst the trial judge referred at length to the propositions extracted by McColl JA and Latham J in Pavitt v R [2007] NSWCCA 88 at [70], the judge's finding that the complainant acted as an agent of the State is not borne out by the joint judgment. As Basten JA recently observed in XY at [15], the following appears immediately after those propositions are explored :- 71 ....... we would not readily apply the label of state agent to a complainant speaking to a suspect who had not been charged, nor refused to speak to police. Rather we would look at the whole relationship as revealed by the participants' past history and what is revealed by the actual conversation. It may be relevant to consider whether the police scripted the conversation. 72 ......., in our opinion, with respect, it might be thought that conversations in such circumstances were more likely to be reliable as the suspect would have no occasion to boast, seek to big note him or herself and, to the extent the victim put allegations that the suspect had committed a criminal act vis-à-vis him or her, the suspect would more readily reject the proposition if it was false.73 Police could not anticipate that a suspect would readily make admissions to a person asserting he had committed a criminal act against him. As Giles JA said in Em v Regina (at [68]), "[o]rdinarily persons do not make admissions against interest unless they are true". 66Here, the respondent had not been charged prior to the conversations. It is irrelevant whether the judge thought that the police decision to await the outcome of the conversations was "questionable". There was no suggestion that the police "scripted" the conversation. The whole of the relationship between the respondent and the complainant suggested that the respondent was the dominant personality, who was quite capable of making his own decisions, whether in pain or discomfort or not. 67Similarly, the judge's finding with respect to the reliability of the respondent's statements is against the weight of the evidence for the reasons set out at [42] and [43] above. 68Finally, the judge's alternative basis for exclusion on grounds of public policy set out at [60] above, picks up a reference to that consideration in R v Swaffield ; Pavic v The Queen [1998] HCA 1 ; 192 CLR 159 at [91], which was reiterated in Pavitt at [70]. Two factors bear upon the application of that consideration to the construction of s 90. First, the discussion culminating in [91] in Swaffield occurs in the context of the common law discretion to exclude for unfairness, as distinct from the Evidence Act provisions, which did not then apply in Queensland and Victoria : see Swaffield at [92]. Second, it is important to note that the High Court decision in Em post-dated Swaffield and Pavitt. There is nothing in Em which supports the proposition that such considerations of public policy require the exclusion of pretext conversations when there is no relevant unfairness in the use of the evidence at trial. 69In that regard, Gummow and Hayne JJ said at [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. 70It is for these reasons that ground 3 was upheld. 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: 28 July 2014