Regina v Workman [2004] NSWCCA 213 | Case summary

Wednesday 30 June2004 REGINA v ERIN JOHN WORKMAN Judgment 1 GROVE J: The appellant stood trial before Cooper DCJ and a jury at Sydney District Court upon an indictment charging various sexual offences, the detail of which it is not immediately necessary to recount. All counts related to the same complainant whose age when the offences occurred ranged from about seven to fifteen years. She was the daughter of a woman with whom the appellant had entered a de facto relationship following the separation of that woman and the complainant's father. The dates of offences were specified to lie between July 1991 and August 1999. 2 After conviction, sentences on various counts resulted in an aggregate imposition of imprisonment for eight years nine months with a non parole period of six years three months. The appeal challenges conviction and, alternatively, leave to appeal against sentence is sought. 3 The principal grounds of appeal against conviction assert that the learned trial judge erred in admitting the content of a certain recording into evidence (ground 1) or, if that was not erroneous, in not exercising discretion to exclude that evidence (ground 2). In conformity with the approach of counsel, those grounds can be dealt with together. 4 Exhibits J and K at trial consisted of a tape recording and transcript of a conversation between the appellant and the complainant. Some editing out of extraneous material had, by consent, been undertaken. There is no need to distinguish the two forms of recording to consider the grounds of appeal. 5 In August 2000 the complainant moved from Sydney to reside with her sister in Queensland. Her sixteenth birthday occurred on 29 August 2000. She reported the appellant's alleged conduct and it was arranged for her to see a Detective Senior Constable James of the Queensland Police. This officer was experienced in investigation of allegations of child sexual abuse and worked generally in areas of juvenile justice. She received the complainant's allegations in a conventional fashion. It became known that the appellant would for a time be in Inverell in northern New South Wales. 6 Detective James sought the complainant's consent to participation in what was referred to as a "pretext" telephone call to the appellant. This is an investigative procedure used by the Queensland police in respect of which there is a published protocol to be followed when it is undertaken. On 17 September 2000 the complainant telephoned the appellant in Inverell from the police station at Surfers Paradise, Queensland. In a separate room, Detective James was located with a speaker phone which broadcast the conversation between the participants to the call. Adjacent to the speaker, but not touching it, was a recorder which captured the acoustic emanations from the speaker. Thus the content of the conversation was not being extracted from the telephone lines or the electronic mechanisms by medium of which the participants in the conversation were communicating with each other. 7 The recording of the conversation in this fashion did not contravene the Telecommunications (Interception) Act 1979 (Commonwealth): R v Oliver 1984 57 ALR 543 per Priestley JA and Cantor J, Roden J not deciding. The "pretext" call was made and recorded in conformity with the procedure made applicable by the Queensland police protocol and more importantly, what was done was lawful in Queensland. The Invasion of Privacy Act 1971 (Queensland) excludes from liability for offence, the using of a listening device to record or listen to a private conversation if the person using the listening device is a party to the conversation: see s 43(2)(a) of the lastmentioned statute. 8 It is conceded by the appellant that the content of the conversation was of high probative value to the Crown case. Whilst there were not direct admissions which could attach to particular counts in the indictment there was ample confirmation by the appellant that he had engaged in sexual activity with the complainant. 9 The thrust of the appellant's submissions in support of these grounds was succinctly stated as whether the discretion under s 138 of the Evidence Act 1995 should have been determined in his favour and the evidence therefore excluded. 10 Section 138 provides: "(1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceedings, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 11 It is not contended that the evidence was obtained illegally, or to use the expression in the section "in contravention of an Australian law". The evidence was obtained as the result of actions which were explicitly lawful in Queensland where they took place. 12 The appellant's argument is that the obtaining of the evidence was improper (within the meaning of the section) because, had the recording been made in New South Wales it would have been illegal, being a contravention of the Listening Devices Act 1984 (NSW) s 5(1). This fact was recognized by Cooper DCJ. It was not suggested that qualifications to the prohibition within that Act would operate if one were hypothetically applying it to the present circumstances. 13 It was contended that the statutory prohibition in New South Wales was no matter of mere regulation but a legislative condemnation of defined conduct by categorizing it as criminal and providing for available punishment both by fine and a significant term of imprisonment. It was therefore argued that conduct so categorized, which was the source of evidence sought to be tendered in a New South Wales court in respect of offences alleged to have been committed in New South Wales, should be regarded in terms of s138 as improperly obtained. 14 Section 138 is directly focussed upon the obtaining of evidence and in this instance that must refer to the creation of the recording which became the subject of tender, the obtaining of which was indisputably lawful as it was the product of actions in the State of Queensland and governed by Queensland law. The invitation to consider the criminality of what occurred, if it occurred in New South Wales, is to place focus upon the presentation of evidence in distinction from focussing upon its being obtained. I do not need to draw upon it for my conclusion that the appellant's submission should be rejected, but that conclusion seems to me to be more in harmony with the spirit of s 118 of the Commonwealth of Australia Constitution than a conclusion that conduct leading to the obtaining of evidence, expressly declared lawful in Queensland, should be held to have produced improperly obtained evidence by a New South Wales court. 15 The learned trial judge in his reasons for ruling extensively canvassed the consideration of matters specified to be taken into account pursuant to s 138(3) but that was unnecessary once judgment was made, in my view correctly, that neither impropriety nor illegality nor the consequences of such was involved. 16 Reference was made to the circumstance that the complainant made the call to the appellant at the request of police and that she could be regarded as an agent of the police and thus her conversation could be categorized as questioning, with a potential therefore to engage s 138(2). A reading of the transcript of the conversation refutes any suggestion that it was "the functional equivalent of an interrogation": R v Broyles 1991 3 SCR 598. This Canadian case has been cited with approval in the High Court: The Queen v Swaffield and Pavic 1997 192 CLR 159 and the material in this instance does not fulfil the test of impropriety discussed therein nor as specified in s 138(2). See in particular Swaffield per Toohey, Gaudron and Gummow JJ @ 203-4 and Kirby J @ 220. 17 It should not be overlooked that the complainant was a sixteen year old girl speaking to a person who had for a time stood in loco parentis to her. Not only was she scarcely in the position of an interrogator but, if the appellant had felt pressured in any way, he could have terminated the conversation at any time: cf Regina v M [2002] QCA 486. 18 There is no perceptible basis upon which the trial judge ought to have exercised discretion to exclude the evidence and he did not err in admitting the evidence. 19 Ground 3 asserts that his Honour erred in limiting the cross examination on a voir dire as to the admissibility of the complainant's evidence so as to deprive the defence of the opportunity to cross examine the complainant's Body Talk therapist, Ms McIntyre. 20 Ms McIntyre has completed a number of courses in various forms of natural therapy. An application for Ms McIntyre to be called for cross examination on voir dire was initially refused. Later, counsel for the appellant tendered a report from her. It reveals that the complainant's sister was a client of Ms McIntyre and that she thought treatment would be beneficial for the complainant. The description of what happened is contained in the report in these terms: "We followed the regular Body Talk protocol which consists of asking the body via muscle testing what it requires to obtain balance, the majority of treatments were for stress. I am not a counsellor but often I just let her talk." 21 Ms McIntyre did not keep notes. There was no hypnosis, EMDR (Eye Movement Desensitization and Reprocessing) or other psychotherapeutic procedure undertaken. 22 A report from Dr Lucire, a psychiatrist who spent some five hours in interviews (presumably with the appellant to whose solicitors the report is addressed) had been prepared. She expressed some views about confabulation by the complainant. Her report was received in evidence on the voir dire. Its concluding paragraph read: "I am interested in the therapy she has had. For a period in the U.S.A., not in N.S.W. body work was a therapy prone to cause confabulation of sexual events especially in those cases where the therapist has believed that a body has memory for sexual abuse." 23 It needs to be assumed that Ms McIntyre's Body Talk and Dr Lucire's reference to body work relate to the same matter. 24 The appellant submits that once the issue of possible confabulation was raised (in the context of therapy of some sort) exploration of its possible effect on the reliability of the complainant's testimony should have been permitted: R v Tillot 1995 38 NSWLR 1. As a general proposition, I regard the submission as correct, however, after cross examination of the complainant and the tender of documents including those mentioned above, counsel for the appellant stated: "Your Honour, I've got no further application to make given the way the evidence has fallen". 25 At the hearing of the appeal counsel for the Crown submitted that the application to cross examine Ms McIntyre had effectively been abandoned at trial and counsel for the appellant did not seek to respond to that assertion. There was no attempt to demonstrate that his Honour's ruling on the voir dire concerning Ms McIntyre had any adverse effect on the conduct of the defence at trial or otherwise. 26 Insofar as the application to cross examine Ms McIntyre should have been acceded to, I am of a view that notwithstanding that the point might be decided in favour of the appellant, no miscarriage of justice has thereby been occasioned and I would reject this ground in accordance with the proviso to s 6 of the Criminal Appeal Act. 27 I would dismiss the appeal against conviction. 28 The appellant seeks leave to appeal against sentence. The indictment was framed to include counts in the alternative. In the result the appellant was convicted on two counts of sexual intercourse with a child under ten years (counts 1 and 3), two counts of aggravated indecent assault (counts 2 and 12) and seven counts of sexual intercourse with a child between ten and sixteen years (counts 4, 6, 7, 10, 13, 14 and 16). On counts 1, 2, 3, 4 and 6 his Honour imposed various terms of imprisonment to be served concurrently commencing on 8 May 2003, the longest of which was five years and the longest non parole period was three years and nine months. To commence upon expiry of that non parole period, sentences to be served concurrently, the longest of which was five years and the longest non parole period two years and six months, were imposed in respect of counts 7, 10, 13, 14, 12 and 16. 29 As earlier stated, the effective consequence was an aggregate imprisonment for eight years nine months with a non parole period of six years three months. 30 The facts are set out in the remarks on sentence of the trial judge and it was not suggested that his recounting was in any way inaccurate. What was disclosed were persistent predatory sexual interferences by the appellant with a young girl. These sexual depradations took many different forms. The objective seriousness of such offences during the formative years of a girl passing through childhood into teenage years is very high. 31 It was asserted that his Honour erred in imposing a combination of sentences so that they failed to reflect any leniency in respect of the prisoner's age, character and other matters so far as total term was concerned. The specific matters mentioned were adverted to in his Honour's remarks on sentence. Other "matters" would seem to refer to particular hardship which may be encountered in custody particularly by persons convicted of offences of this nature. His Honour expressly did not overlook that factor. 32 Having regard to the objective seriousness of these offences and particularly period over which they occurred during the complainant's minority and allowing for such weight as needs to be given to the appellant's subjective circumstances I am unpersuaded that the total effective sentence is manifestly excessive. 33 The second matter of challenge specifically addressed in the hearing of the appeal, was directed to the ultimate consequence of specification of non parole period in the light of his Honour's finding that special circumstances justified departure from the statutory formula in the appellant's favour yet, application of the formula would result in a non parole period only three months longer than those ordered. 34 The basis of his Honour's finding of special circumstances were stated as the applicant's age (he was born on 1 November 1937) and his medical condition. His Honour noted that the appellant had health problems in his neck and back, from time to time was afflicted with melanomas and that he had a tendency to pleurisy. 35 In my opinion the specifications of non parole periods by his Honour were well within the range of the sound exercise of discretion. There is no principle that a finding of special circumstances binds a judge to any particular reduction when gauged against the statutory formula. Each case must be determined in the light of its own circumstances. There is no error demonstrated in his Honour's exercise of judgment. Whether directing reference to the head sentences or the specifications of non parole periods, I am unpersuaded that any lesser sentences were warranted. 36 As previously stated, I would dismiss the appeal against conviction. I would grant leave to appeal against sentence but dismiss that appeal also. 37 DOWD J: I have read the judgment of Grove J in draft form. I agree with the orders he proposes and with his Honour's reasons. 38 I have also read the judgment of Sperling J in draft form. I agree with the additional observations that he has made. 39 SPERLING J: I have had the advantage of reading the judgment of Grove J in draft. I agree with the orders he proposes and with his reasons. 40 I wish to add the following observation in relation to the recorded telephone conversation. 41 The recording of the conversation did not infringe the laws of Queensland. If the conversation had been recorded in the same manner in New South Wales, it would have infringed the laws of this state. In those circumstances, it could not be said that the evidence was obtained in contravention of an Australian law within the meaning of the Evidence Act 1995, s138. A question arises as to whether the evidence was "improperly obtained" within the meaning of the section. 42 There are Commonwealth and state laws which limit the recording of conversations. They have the common feature of striking a balance between freedom of action and the right to privacy. That involves a judgment which has been exercised by the parliaments of the states with different results. Because the balance is struck in a certain way in this state does not mean that the balance struck differently in another state is wrong or vice versa. 43 In these circumstances, it cannot have been intended by the parliament of this state, when enacting s138 of the Evidence Act, that conduct treated differently under such laws, when done in another state and in conformity with the laws of that state, should be regarded as undertaken "improperly" because the conduct would be contrary to laws of this state if done here.

Regina v Workman

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