The Queen v Visagie [2021] NTSC 73

Abernethy v The Queen [2020] VSCA 96; Aytugrul v The Queen [2012] HCA 15; (2012) 247 CLR 170; Bin Sulaeman v R [2013] NSWCCA 283; Carr v The Queen [2002] TASSC 60; (2002) 11 Tas R 362; De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1; Em v The Queen [2007] HCA 46; (2007) 232 CLR 67; Higgins v The Queen [2007] NSWCCA 56; IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300; Kadir v The Queen [2020] HCA 1; (2020) 94 ALJR 168; Mole v Prior (2016) 36 NTLR 171; Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1; Parker v Comptroller-General of Customs (2009) 83 ALJR 494; Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461; R v Esposito (1998) 45 NSWLR 442; R v Rooke (Unreported, NSW Court of Criminal Appeal, Newman, Levine and Barr JJ, No 60550/96, 2 September 1997); R v Ul-Haque [2007] NSWSC 1251; (2007) 177 A Crim R 348; Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 158 A Crim R 546; Rolfe v The Queen [2007] NSWCCA 155; (2007) 173 A Crim R 168; The Queen v Ali [2015] NSWCCA 72; The Queen v Bauer [2018] HCA 40; (2018) 92 ALJR 846; The Queen v Bertrand [2008] VSCA 182; (2008) 20 VR 222; The Queen v Centraco [2005] NSWCCA 11; The Queen v Downs [2019] NTSC 7; The Queen v Gregory-Roberts [2016] NSWCCA 92; The Queen v JGW [1999] NSWCCA 116; The Queen v Pritchard [1991] VicRp 8; [1991] 1 VR 84; The Queen v Shamouil (2006) 66 NSWLR 228; The Queen v Swaffield (1998) 192 CLR 159; The Queen v Tipiloura [2019] NTSC 92; The Queen v TJB (1998) 4 VR 621; The Queen v Tupou [2016] NTSC 56; The Queen v Ye Zhang [2000] NSWSC 1099; The Queen v Yirrawala [2015] NTSC 37; Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769; (2009) 258 ALR 598; WFS v The Queen [2011] VSCA 347; (2011) 33 VR 406, referred to.

Evidence (National Uniform Legislation) Act 2011 (NT) ss 55, 59, 81, 83, 84, 85, 90, 135, 137, 138, 142, 192A, Dictionary.

Police Administration Act 1978 (NT) s 14a, 76, 137, 138, 140, 144.

Australian Law Reform Commission, Evidence (Interim) Report (Report 26, Vol 1); Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15th ed, 2020).

Crown: Office of the Director of Public Prosecutions

The Queen v Visagie [2021] NTSC 73

• [1] The issues raised in this matter are whether an electronic record of interview ('EROI') of the accused by Police should be excluded from evidence at trial because: (a) the interview was conducted in a manner which: (i) was oppressive; (ii) involved an impropriety or contravention of an Australian law and the desirability of admitting the interview is not outweighed by the undesirability of admitting evidence obtained that way; (iii) makes it unlikely that the admissions and representations about admissions made by the accused were true; or (iv) makes it unfair to use them; or (b) because its probative value is outweighed by the danger of unfair prejudice to the accused.
• [2] The accused is charged with two counts involving a child who was six years old at the relevant time. The first is a count of attempting to procure a child to engage in an act of gross indecency, with the circumstance of aggravation that the accused was an adult. The second is a count of indecent dealing with a child, with the circumstance of aggravation that the child was under the age of 10 years.

• [3] The Crown's case is that, from time to time, the accused cared for the complainant, who was a six year old girl ('NE'), and her sister, who was eight years old ('TE'). Whilst on a holiday with her parents, at a time when her father had come out of the bathroom and removed his towel, NE said to her mother 'I touched [the accused's] one of those', pointing towards her father's penis. During a later conversation with her parents, NE told them she had touched the accused 'here', pulling down her pants and pointing to her crotch area. She also told them that the accused told her not to tell anyone. Police undertook an interview with NE, who said that 'sometimes he asks me to touch his bit where it's private'. She said this happened in the spare room at the accused's residence, when he was lying down and his penis was 'sticked upwards'. Asked what's happened in the spare room, she said 'touching private parts'. She said the accused unzipped his pants, took out his penis and asked her to touch it. She also said the accused told her that he thinks 'it feels nice'. She said this happened more than once. Asked what happens once he's pulled his 'pyjana' out, this being NE's word for penis, she answered 'I don't touch it'.
• [4] The accused was arrested on 22 November 2019 and the EROI was conducted that day. The officer in charge of the investigation, Federal Agent Sinead Done ('Done'), who was the principal Police officer conducting the EROI, gave oral evidence on the voir dire and was cross-examined on behalf of the accused. Done was partnered in the investigation with Detective Constable Duane Commandeur ('Commandeur'). The defence called the accused's wife, CS, who gave oral evidence on the voir dire and was cross-examined on behalf of the Crown.
• [5] After the EROI was conducted, NE was further interviewed by Police. In that second interview, NE made statements indicating she did touch the accused's penis.
• [6] The defence also challenges the admissibility at trial of both of the Police interviews with NE. That challenge is not the subject of these reasons.
• [7] The accused has denied any sexual contact with NE.
• [8] The accused contended that the EROI is inadmissible, in whole, or alternatively in part, by operation of one or more of ss 84, 85, 90, 135, 137 and/or 138 of the Evidence (National Uniform Legislation) Act 2011 (NT) ('UEA').[1] Pursuant to s 192A of the UEA, the parties sought a ruling on those matters in advance of the trial.

Prior representations and the hearsay rule - ss 59, 81

• [9] By s 59(1) of the UEA, evidence of a prior representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. This is referred to in the UEA as 'the hearsay rule'. There is no dispute that each statement made by the accused in the EROI constitutes a 'prior representation' for the purposes of the UEA.[2]
• [10] The UEA contains various exceptions to the hearsay rule. The Crown relies on the exceptions found in s 81(1) and (2).

• [11] Section 81(1) provides (relevantly) that the hearsay rule does not apply to evidence of an admission. The term 'admission' is defined to mean a previous representation that is: (a) made by a person who (relevantly) is or becomes a defendant in a criminal proceeding; and (b) adverse to the person's interest in the outcome of the proceeding.[3]
• [12] In his leading text, Stephen Odgers states that:[4]

...any acknowledgement of some relevant fact that tended to establish guilt, or liability, would be an admission. Indeed, any representation, adduced by the prosecution and capable of rationally affecting the assessment of the probability of the existence of facts asserted by a prosecution witness in relation to an alleged offence would constitute an admission.[5]

• [13] The defence argued that the authority cited by Odgers did not, by its ratio decidendi, sustain the proposition for which it was cited. The Queen v JGW concerned (relevantly) whether a Police interview with the accused should have been ruled inadmissible at trial because the accused had offered to make formal admissions as to the matters the Crown sought to establish from the interview. The appellant argued that having made the offer of such admissions, the interview had no evidentiary relevance and its probative value was outweighed by the danger of unfair prejudice to the accused if it were received. Wood CJ at CL (Barr and James JJ agreeing) referred (at [37]) to various propositions about the admissibility of questions and answers in a Police interview, as set out in Plevac v The Queen ('Plevac'),[6] including that:

(a) answers are admissible in evidence if they are relevant but not otherwise;

(b) an answer is relevant if it is an admission, or is capable of being regarded as an admission, of guilt or of a fact relevant to the proof of guilt;

(c) if an answer is not unequivocally an admission but is capable of being regarded as such, it is a question for the jury whether it is such, making it admissible; and

(d) an answer which is not capable of being regarded as an admission is on the face of it irrelevant and therefore inadmissible.

• [14] Wood CJ at CL rejected (at [40]-[41]) the appellant's submission as to relevance because answers given by the accused in the interview were capable of rationally affecting the assessment of the probability of the existence of the facts asserted by the complainant in relation to the offences charged. In my view, by that reasoning (which forms part of the ratio decidendi), the Court has held, consistently with Mr Odgers' proposition, that a representation adduced by the prosecution and capable of rationally affecting the assessment of the probability of the existence of facts asserted by a prosecution witness in relation to an alleged offence will constitute an admission. (It is clear from the term's definition that the representation referred to must be adverse to the accused's interest in the outcome of the proceeding.)
• [15] It has been held by the Victorian Court of Appeal, in considering the effect of the equivalent of s 83 of the UEA, that the words 'adverse to the person's interest in the outcome of the proceeding' in the definition of the term 'admission' direct attention to the proceeding in which the question of admissibility arises and, more particularly, to the matters in issue in the proceeding at the point when that question arises, so a representation as to a fact will not be an admission if there is 'no issue' in the proceeding with respect to that fact.[7]

Previous representations giving context to admissions

• [16] Section 81(2) of the UEA provides that the hearsay rule does not apply to evidence of a previous representation: (a) that was made in relation to an admission at the time the admission was made or shortly before or shortly after that time; and (b) to which it is reasonably necessary to refer in order to understand the admission.
• [17] The intention behind this provision was to permit the admission into evidence of assertions which qualify or modify an admission to ensure, in fairness to the defendant, that the admission is considered in context.[8]
• [18] In Nguyen v The Queen ('Nguyen'),[9] the High Court observed (at [22]) that:

It is to be expected that exculpatory statements made in a record of interview which also contains admissions will usually satisfy the requirements of s 81(2)(a) and (b). In the event that there is some doubt about the connection between an exculpatory statement and an admission, it should be borne in mind that what is to be made of a mixed statement is a matter for the jury, which might attach different degrees of credit to different parts of it. It has been observed that, under the Uniform Evidence Acts, provided relevant evidence is rationally capable of acceptance, questions of credibility and reliability are to be seen as squarely within the province of the jury. Considerations of this kind suggest that no narrow approach should be taken to the relationship between exculpatory statements and admissions. [citations omitted]

• [19] What is 'shortly before' or 'shortly after' the admission is to be determined by reference to whether the admission and the other representation were made on a 'single occasion', or within such time as excludes the intervention of self-serving after-thought, reconstruction or alteration.[10] It is not in dispute that representations made in the EROI about admissions made in the EROI were made shortly before or shortly after the admission within s 81(2).

• [20] Generally speaking, wholly exculpatory representations are not admissions, because they are not adverse to the accused's interest in the outcome of the proceedings, and are therefore not admissible under s 81 of the UEA.
• [21] There is some controversy in the authorities as to whether a wholly exculpatory statement can constitute an 'admission'. There is some authority in support of the proposition that a wholly exculpatory statement which is a lie may be admissible as an 'admission' by conduct, however there is also authority to the contrary.[11] It is not necessary to resolve that controversy in this matter.
• [22] In Nguyen, the High Court observed (at [27]) that:

It is well settled that if the prosecution seeks to rely upon an out-of-court admission or other incriminating statement the whole statement made by the accused must be put before the jury including those hearsay statements by which the accused tried to exculpate himself or herself. This practice is not to be confused with questions of admissibility, although the two may share a common rationale. The practice may be understood to reflect the fundamental obligation ... that the prosecution put its case fully and fairly. The prosecution may not 'pick and choose' between statements which it says bear out its case and those which do not. [citations omitted]

• [23] The High Court held (at [41]) that where an accused provides both inculpatory and exculpatory statements to investigating Police officers, it is to be expected that, if the prosecutorial duty is to be met, the prosecutor will tender that evidence in the Crown case, unless there is good reason not to do so.

The EROI - Admissions, contextual statements, exculpatory statements

• [24] The Crown has identified various parts of the EROI as containing admissions admissible under s 81(1), statements giving context to admissions under s 81(2) and exculpatory statements which the prosecution would ordinarily tender as part of its prosecutorial duty. Each of those are addressed in turn below.

• [25] Substantial portions of the EROI show the accused making statements about his 'opportunity' to have committed the alleged offending, particularly statements: (a) that the accused babysat the complainant and her sister in his home not infrequently on an ad hoc basis; (b) as to how this babysitting began; (c) as to how often and on what occasions it occurs; (d) as to whether his wife is present when this occurs; (e) that there was a separate bedroom and bathroom in the accused's home that was used by the girls when they were babysat; and (f) as to occasions when the complainant and her sister were not together in the accused's home.
• [26] The Crown argued that such statements are 'admissions'. It was said they go to proof of the charge by establishing that the accused could have committed the alleged offending and so are adverse to the interest of the accused in the outcome of the proceeding.
• [27] The defence conceded that such statements were admissions within the meaning of s 81(1) of the UEA.[12]

• [28] The Crown argued that the EROI contains numerous statements by the accused about the 'relationship' between the accused and NE which would explain to the jury: (a) why the accused acted as he is alleged to have done, which might otherwise have appeared surprising and therefore implausible; and (b) why NE acted as she did, including by not immediately complaining at the time of the alleged offending, and by complaining in the way she did.
• [29] The defence argued that such statements are either exculpatory or not sufficiently connected to the alleged offending conduct to bear on the accused's interest in the outcome of the proceeding.
• [30] Properly analysed, such evidence is evidence bearing on the credibility of the complainant.[13] In the context of an 'oath on oath' case, generally speaking, statements about the 'relationship' between the accused and NE which could rationally explain the matters referred to in paragraph [28] above to the jury would be against the accused's interest in the outcome of the proceeding, and would fall within the definition of 'admission'.
• [31] During the EROI, the accused described a game (called 'hot dogs') he played with the girls after they got out of the bath and before they got dressed, in which he wrapped them up in a towel, carried them to the bed and rolled them out of the towel onto the bed. The Crown pointed to this as an instance of 'relationship' evidence. The defence argued that, as there is no allegation that the offending occurred during or related to a game of 'hot dogs', and as the game of 'hot dogs' is not evidence capable of establishing any sexual interest on the part of the accused, these statements are irrelevant and not admissions.
• [32] Similarly, the Crown pointed to the accused's answers to the question: 'Have you ... ever asked either of the girls to keep secrets?' and his answer: 'I've asked them not to talk about rude stuff.' Asked: 'What's rude stuff?', the accused referred to 'rude language' such as talking about 'butts' and 'being naked'. He said he had not said that 'it's a secret' but that 'it's just not appropriate to talk...about stuff like that'. He said he could not think of a specific time where he had said something was a secret and they should not tell anyone. He appeared to say that he had told them not to go running around saying they have a bath at his place, or speaking about the 'hot dogs' game or his seeing them naked, because that can be misconstrued. Again, the defence argued this is not an admission because he does not say, at any point, that he has told either child not to keep a secret.
• [33] In my view, such statements are admissions because they could be used by the jury (with the proper interpretation being a matter for them) to explain the alleged conduct of the accused and NE's reaction to it, which goes essentially to NE's credibility, and are thus adverse to the accused's interest in the outcome of the proceedings. They are 'admissions'.

Statements as to alleged offending - the 'fleecy shorts incident'

• [34] During the EROI, the accused was asked if the girls had ever had a reason to see his penis. In response to that and to further questioning, the accused made various statements, as follows:

(a) The accused said: '[NE] grabbed my shorts once', when he was wearing his 'terry fleecy shorts'. This is referred to in the EROI and in these reasons as 'the fleecy shorts incident'.

(b) Asked by Done to step her through that, the accused said that NE 'grabbed' or 'tugged' the crotch part of the shorts. He appeared to indicate that he was standing up at the time.

(c) He said she 'pulled them aside or up or whatever and not having underwear on my penis was really giving a wobble'.

(d) He said that it wasn't prolonged, he told her 'no', she might have tried to do it again, he said to her 'I don't like that' or 'we don't do that' or words to that effect, and tried to make it clear 'that's not what you do' and 'we don't do rude things'.

(e) Asked if he had ever had an erect penis in front of the girls, the accused answered 'part erect I guess' and said that during the fleecy shorts incident, 'it wasn't aroused ... but ... it may have been erect, yes.' He said he was not sexually aroused or 'getting off on it', but 'penis's [sic] do that'. When Done pointed out he was 59 years old and erections do not happen at his age, the accused said 'every morning it's erect' and if he needs to go to the toilet 'it's erect'. The EROI includes further questioning and answers about occasions upon which the accused's penis is erect or partially erect.

(f) Referred to the fleecy shorts incident and asked if his penis was erect at the time, he said: 'It was probably part; it wasn't like - 'boing' ... It might have been like part ... And the fact that she grabbed it that may have triggered it ... it's not an intentional reaction'.

(f) Asked what state his penis was in when he put the fleecy shorts on, the accused said 'I may have just come from the shower, often it's just half aroused ... sometimes, again when I'm just changing ... it's not unusual'. He said it was 'normal' for him to get an erection or part erection after a shower, after he rubs himself with a towel, and 'Yeah, fleecy shorts on a naked body'. He said it was not sexual arousal, but just 'being brushed up against' or rubbed, 'it does its thing'.

(g) Later, the accused was informed that NE had told Police about an occasion in the spare room, where he had unzipped his pants, pulled out his penis, asked her to touch it, he had laid down, it had been erect, and he asked her to touch it again and told her it feels good when she touches it. Still later, asked if he lay on the bed, the accused said: 'I, yeah, I've laid on the bed'. He then said he could not remember exactly where he was when she grabbed his crotch. He then agreed that he may have been lying on the bed wearing the fleecy shorts. He said he would be jumping the girls up and down on the bed and saying get dressed and over time, he got tired and has flopped on the bed and 'she's gone ... grab ... and ... grabbed me once or twice, usually go whoa, you know...'. Asked again, he said 'I don't recall it precisely but as best as I can recall ... she's grabbed at the lump and gone something like what's that ... and like whoa, and then ... it's [a] case of let's back up a little bit then, and ... I didn't ... flip out and panic at it'. He agreed that 'the lump' he was referring to was his semi-erect penis. He also said NE was naked at the time, having just got out of the bath.

• [35] The Crown argued that the above statements by the accused about this incident are admissions or representations about admissions because they are capable of rationally affecting the assessment of the probability that NE's evidence that she touched the accused's penis after he invited her to do so is true. It was said that either the statements are admissions or representations about admissions going directly to the charged conduct or they are relationship evidence.
• [36] The defence argued that, with one exception, all statements about the fleecy shorts incident are not sufficiently connected with the allegation by NE to amount to an admission. The exception is the statements referred to in paragraph [34](g) above. The defence said it was for the Crown to establish these statements were admissions, but accepted that, if they were ruled admissible as admissions, then all statements in the EROI about the fleecy shorts incident would be admissible as falling within s 81(2) of the UEA.
• [37] There can be little doubt that the statements referred to in paragraph [34](g) above are admissions. The accused admitted, or appeared to admit, to facts that are rationally capable of being understood as some of the core actions or components of the alleged offending conduct. Such statements are clearly against his interest in the outcome of the proceeding and admissible as [14]missions.14 To the extent that the accused's statements about the fleecy shorts incident are open to more than one interpretation or inference, that does not render admissions inadmissible, even if one interpretation or inference is consistent with[15]nnocence.15 Further, as the defence has accepted, once the statements in paragraph [34](g) above are considered admissible as admissions, all statements relating to the fleecy shorts incident are admissible as representations about admissions within s 81(2) of the UEA. If not admissions for this reason, like the statements about the 'hot dogs' game, these statements would be admissions comprising relationship evidence.

Conclusion as to admissions, contextual statements, exculpatory statements

• [38] For the reasons set out above, the EROI is admissible notwithstanding the hearsay rule because it comprises: (a) 'admissions' within s 81(1); (b) representations about admissions with s 81(2); and (c) wholly exculpatory statements which the prosecutor is obliged to tender along with the inculpatory ones.
• [39] The bases upon which this otherwise admissible evidence might be excluded are addressed below.

Exclusion of admissions - ss 84, 85, 90

Section 84 - Oppressive conduct

• [40] Section 84(1) of the UEA provides that evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by: (a) violent, oppressive, inhuman or degrading conduct; or (b) a threat of conduct of that kind. Section 84(2) provides that s 84(1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.
• [41] Section 84 of the ENULA is concerned with whether the admissions were voluntarily made or the result of the conduct described therein, or the threat of such conduct.[16] In this context, 'voluntary' means made in the exercise of a free choice to speak or be silent.[17] The defence did not argue that Police engaged in violent, inhuman or degrading conduct; rather it was argued that the Police conduct was 'oppressive'.
• [42] The New South Wales Court of Appeal considered the scope of that term in Habib v Nationwide News Pty Ltd ('Habib').[18] The Court observed (at [245]) that the dictionary definition of: (a) 'oppressive' included 'burdensome, unjustly harsh ... causing discomfort because uncomfortably great, intense'; and (b) 'oppression' was 'the exercise of authority or power in a burdensome, cruel or unjust manner'. Oppressive conduct is not limited to physical conduct, and extends to encompass mental and psychological pressure.[19] The assumption of unlawful powers of direction, control and detention may amount to oppression in the relevant sense.[20]
• [43] In Habib, the Court also held (at [234]) that, in order to raise a s 84 issue as required by s 84(2), there must be some evidence that indicates through legitimate reasoning that there is a reasonable possibility an admission or its making were influenced by (relevantly) oppression.
• [44] Section 84 does not require the isolation of a single reason, event, incident or instance of conduct; rather, there may be a number of factors working together that, when combined, caused the admission to be made, and if the Crown has failed to negative that oppressive conduct on the part of Police is one of those factors, then the evidence is inadmissible.[21]
• [45] In Plevac, the New South Wales Court of Criminal Appeal observed that Police may interrogate a suspect who is willing to answer their questions, and the interrogation may include putting to the suspect the facts as the Police know or believe them to be in order to ascertain what the suspect will say about them. It is only when such questioning amounts to intimidation, persistent importunity or sustained or undue insistence or pressure that questions of voluntariness will arise. Questioning is not to be regarded as unfair merely because it is persistent.
• [46] In The Queen v Pritchard,[22] the Victorian Court of Criminal Appeal observed (at 91) that questioning amounting to cross-examination tending to extort admissions or to overcome mental resistance to the making of admissions may render admissions inadmissible, as may questions in which disbelief is repeatedly expressed in the accused's denials of complicity and questions designed to obtain damaging admissions. The Court also observed (at 92) that a polite but clever cross-examination may operate insidiously to induce unfairly the giving of incriminating answers. The Court also observed (at 93) that, because the cross-examiner of the accused at trial would not be permitted to express their incredulity or total disbelief in the accused's answers, the jury should not be permitted to see that done by Police in a recorded interview.

Section 85 - Unreliability

• [47] There is no dispute that the challenged admissions were made in circumstances falling within s 85(1) of the UEA. Section 85(2) provides that evidence of an admission is not admissible unless the circumstances in which it was made were such as to make it unlikely that the truth of the admission was adversely affected. By s 85(3), the court may take into account (relevantly) any relevant condition or characteristic of the accused (including age, personality, education, any mental, intellectual or physical disability); and the nature of the questions and the manner in which they were put.
• [48] Section 85 of the UEA is concerned with whether the circumstances adversely affected the 'truth of the admission'. It is not directly concerned with whether the evidence has been improperly or illegally obtained, or general considerations of fairness, and nor is the provision concerned with the voluntariness of the confession, except to the extent that it might bear on the assessment of reliability in the relevant sense.[23]
• [49] The enquiry also does not raise any consideration of whether the admissions made were, in fact, true.[24] The relevant enquiry is whether circumstances such as the accused's personal characteristics and the level of compliance with procedural safeguards may have affected the truth of the confession.[25]

[50] The operation of the provision and the relevant factors and considerations were identified by Barr J in R v GP[26] (at [30]) in the following terms:

The prosecution in the present case must satisfy the court on the balance of probabilities that the admissions relied on were made in circumstances that were not likely to affect their truth adversely [Bin Sulaeman v R [2013] NSWCCA 283 at [81]]. As trial judge, I must determine whether the reliability of the admissions may have been impaired by the way in which they were obtained. In this exercise, I need to consider all the circumstances. Those circumstances include the characteristics of the accused person making the admission, including age, personality, education and any mental, intellectual or physical disability affecting him. The circumstances would also include, where they exist, misconduct by those interrogating, the procedural safeguards adopted, and whether there was any impairment of the ability of the person making the admission to make a rational decision.

• [51] In other words, the enquiry is whether the circumstances were such that it was unlikely that the accused made a false confession.[27]

Section 90 - Unfairness

• [52] Section 90 of the UEA provides that the court may refuse to admit evidence of an admission if, having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. The accused bears the onus of establishing the facts giving rise to unfairness on the balance of probabilities.[28]
• [53] In The Queen v Jennings ('Jennings'),[29] Grant CJ made (at [12]-[14]) the following points about the operation of s 90. First, the focus of the enquiry is not upon whether the circumstances in which the admission was made were fair or unfair; rather, it is on whether, having regard to those circumstances, it would be unfair to an accused to use the evidence at trial.[30] Secondly, the consequences which follow from illegal or improper conduct by investigating authorities fall to be dealt with under s 138 of the UEA, and are not to be dealt with under s 90. Thirdly, it is not possible to mark out the full extent of the meaning of 'fairness' in this context. The unfairness discretion is capable of operating in relation to procedural rights and forensic disadvantages. Some circumstances which might give rise to unfairness in the nature of forensic disadvantage include the admission of a statement made by an accused to another person if that person is not called as a witness, and where the manner in which the accused was questioned has led to apparent inconsistencies which might be used to impair his credit as a witness.[31] Fourthly, admission of evidence is not unfair simply because it has potentially inculpatory effect.[32] Fifthly, assuming there is otherwise no relevant unfairness, that some of the admissions may be subject to different interpretations does not require their exclusion - what the admissions convey is a question properly determined by the jury.[33]

Exclusion of prejudicial evidence - ss 138, 135, 137

Section 138 - Impropriety or contravention of law

[54] Section 138 of the UEA provides, in essence, that evidence obtained improperly or in 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. 'Desirability' reflects the public interest in the admission of reliable evidence for the conviction of wrongdoers.[34] 'Undesirability' recognises the public interest in not giving curial approval or encouragement to illegally or improperly obtaining evidence generally.[35] Section 138(3) sets out matters that the court may take into account under s 138(1). The burden is on the party seeking exclusion of the evidence to establish that it was improperly obtained.[36]

• [55] The defence submitted that there was both a contravention of law and impropriety. The UEA contains no general or specific definition of 'impropriety'. In this context, the method or conduct will only be 'improper' in the relevant sense if it is clearly inconsistent with the minimum standards which society should expect and require of law enforcement officers.[37]

Sections 135 and 137 - Unfair prejudice

[56] Section 135 of the UEA confers a general discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; (b) be misleading or confusing; or (c) cause or result in undue waste of time. The term 'probative value' is defined to mean 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'.[38]

• [57] So far as the balancing exercise is concerned, it is not argued that the EROI might be misleading or confusing, or would cause or result in undue waste of time. Evidence is only unfairly prejudicial if it would deprive an accused of a fair trial. An accused will be deprived of a fair trial if there is a real risk that the evidence will be misused by the jury in some unfair way.[39]

[58] Section 137 of the UEA is restricted in its operation to criminal proceedings, and requires the court to refuse to admit evidence adduced by the Crown 'if its probative value is outweighed by the danger of unfair prejudice to the defendant'. Again, in order for there to be a danger of unfair prejudice to the accused '[t]here must be a real risk that the evidence will be misused by the jury in some way that the risk will exist notwithstanding the proper directions which it should be assumed the Court will give'.[40] In Festa v The Queen,[41] McHugh J described (at [51]) the test as follows:

It is only when the probative value of the evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.

• [59] The defence argued that there is a real risk that the jury may use the accused's words, mannerisms, behaviour and demeanour in the EROI in an irrational or emotional way, logically unconnected with the facts in issue in the case. The risk was said to arise from both characteristics of the accused, together with various aspects of the way the EROI was conducted by Police. Each of those matters will be considered below.

[60] The defence further argued that, given the general abhorrence held by the community for sexual offending against young children, the risk of unfairness and/or prejudice is enhanced in this case, and such risk is unlikely to be removed by a direction to the jury. The defence relied on two authorities for this proposition. The first was an observation by Gibbs CJ in De Jesus v The Queen[42] that '[s]exual cases...are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard'. His Honour was there dealing with an information charging two or more counts constituting a series of offences of a similar character where the evidence of implication in one of the offences is not admissible towards proof of guilt of the other offence. His Honour was not speaking of sexual cases generally.

[61] The second was observations by Callaway JA in The Queen v TJB[43] that 'some sexual offences, and particularly those of an unnatural or repellent character like offences against young children, are peculiarly likely to arouse prejudice'; 'although criminal trials are generally conducted on the assumption that a jury will comply with the judge's directions, it is acknowledged in the authorities that warnings about propensity evidence are not always effective'; and '[t]here are nevertheless cases where the risk of prejudice is unacceptable [and] it will often be found that that is so in the case of offences of an unnatural character or offences that arouse strong emotions or excite revulsion'. Like De Jesus v The Queen, this was a case concerning an application to sever an indictment charging multiple counts of sexual offending against two victims.

• [62] Notwithstanding the different legal issue in those authorities, it may be accepted that there is the potential for the jury to approach the evidence put before it with greater emotion, particularly antipathy, towards the accused and with less logic and reason, in cases involving allegations of sexual offending against young children, meaning that the risk of prejudice or unfairness to the accused is heightened. It may also be accepted that the capacity for a direction from the judge to put emotion aside and approach the evidence logically, reasonably and objectively is lessened in such cases.

Probative value of the admissions, contextual statements, exculpatory statements in the EROI

• [63] The admissions and representations about admissions in the EROI have the probative value identified in paragraphs [25] to [27] (opportunity evidence), [28] to [33] (relationship evidence) and [34] to [38] (fleecy shorts evidence) above.
• [64] The defence argued that, because the accused's opportunity to commit the alleged offending is not in issue, and is the subject of other evidence (text messages from NE's parents to the accused about babysitting arrangements and, particularly, agreed facts[44] as to the babysitting arrangements), the admissions have virtually no probative value whatsoever. It is said that the accused's opportunity is not in issue and probative value goes to proof of an issue.[45] While it may be accepted for present purposes that the admission or likely admission of other evidence that establishes the same fact will reduce the probative value of the proposed evidence,[46] the EROI contains admissions about opportunity which are not the subject of the agreed facts (such as the use by the girls of the spare bedroom, and that there are times when NE is not with her sister). Further, the EROI contains admissions extending beyond opportunity evidence to the matters already referred to above. Those other admissions have significant probative value for the reasons referred to above. Further, there is little about the opportunity evidence per se which could give rise to unfairness in the trial or prejudice to the accused.

• [65] The accused's wife's, CS's, evidence on the voir dire was in the form of a statement (Exhibit D6) and oral testimony. She said the accused had been a Police officer in the New South Wales Police Force, and had later worked for the New South Wales Police Association, up until about 2003. She and the accused had been married for 30 years.
• [66] CS said that, around the time and since the accused left the NSW Police Association employment in 2003, she had seen him be very anxious of many things, a lot of the time. That anxiety manifested in various behaviours included avoidance, of both places and interactions with people, even in ordinary social settings like grocery shopping, and developing routines at home for things like washing hands, bathing and changing from 'outside clothes' to 'inside clothes' and vice versa. She said if he gets anxious he may start shaking, moving his arms or legs or just talking and talking and talking, trying to explain things over and over again. In cross-examination, CS agreed that the talking and explaining was done to have the listener think what he was saying was correct. CS said, when he is anxious, the accused clasps his hands together and revolves his thumbs quickly round each other, or shakes his fist, and if he's talking and there is a surface in front of him he will use two fingers or the side of his hand to rap on the surface to emphasise what he is explaining. CS said she had not seen the accused do that last gesture often, but he might do it when he is particularly upset and then stand up, which is like a cue to her that he is simply not coping with having the conversation. She also said the accused is very private and very careful with, and does not like sharing, his personal information. She said that, if someone presses the accused for personal information, particularly a stranger, his responses can become inflated, louder, upset and 'ramped up'. She said she thought the accused would feel very unsafe and anxious about being arrested or questioned by Police, and would get distressed and agitated and anxious, and would not be able to think clearly. She said that, if his phone was taken and kept by a stranger, and was gone through in his presence, she would expect him to get very upset, start to 'ramp up', get angry or distressed, and potentially a bit disorientated and confused about what was happening. CS's evidence was that these behaviours were different to those she has observed in her many interactions with people in her work as a Defence chaplain and pastoral counsellor. She also said the accused had, from time to time, taken medications for his anxiety. This evidence was unchallenged and I accept it.
• [67] When the accused's fitness for custody was assessed at the Palmerston Watch House, he indicated that he suffers from anxiety as a health condition. This was recorded by the Police member tasked with supervising the persons in custody, Angus Smith ('Smith'), on the Custody Assessment Form. It was not, however, conveyed to Done.
• [68] At the commencement of the EROI, Done asked the accused how he was feeling and he said he felt 'anxious, stressed, confused'. He denied being on any medications. Asked if there was a medical condition the officers should be aware of, the accused said 'I do suffer from anxiety, but I am not on medication at the moment, I was over it but...'. Asked if he felt well enough to participate in the EROI, the accused said '[a]t this stage, sure'. He was told to let the officers know if that changed and he was not comfortable anymore.
• [69] In the early stages of the EROI, when asked numerous background questions about his residences, his mother, his wife and his education he said: 'I'm confused as to why all that's relevant to anything... Cause I, yeah, I, it's making me more anxious, this, I don't like talking about my history, that's all and I don't like my details being recorded. I, that's just me, I'm very private.' Done's response was that this is an official Police interview that is being recorded.
• [70] During the EROI, after answering whether he had asked the girls not to talk about 'rude stuff', the accused said he felt like he was being pushed into a corner and things were being taken out of context and he was 'getting really anxious and ... flustered and confused and upset'. After the first interrogation of his phone (see below), and explaining his anxiety when asked for private information such as his driver's licence, and that he was 'flipping out' after being asked for his PIN code to his phone, he said 'my heart's going a hundred miles an hour and I'm ... you are crawling around my life and I'm freaking. I understand that you're trying to do a job but ... That's why I'm getting this way'. Done's response was to offer the accused some water and a one minute break was taken while Done remained in the interview room with the accused.
• [71] After the break, the further phone interrogation about photographs and kept messages occurred (see below), there were questions about travel, a spare phone and the internet, and a further phone interrogation about his browsing history (see below). After a five minute break, there was a further fairly lengthy discussion about the fleecy shorts incident, some other matters, and then the accused made the statements set out in paragraph [34](g) above, ie where he appeared to agree that he was lying on the bed in the spare bedroom when the fleecy shorts incident occurred. The accused did not make any further references to his anxiety, or say he did not wish to continue with the interview.
• [72] In my observations of the accused in the EROI, in the early stages, his demeanour appeared relatively calm, he spoke at a normal volume level and speed, and sat relatively still in the chair. His answers were often long-winded, he often started a new sentence without completing the sentence he was saying, and he commonly volunteered additional information, multiple times, after finishing his answer to a question. Across the course of the EROI, the accused became more animated, gesticulated more with his hands, spoke more loudly, and sometimes stumbled over his words or repeated words many times before completing a sentence. Quite often during the EROI, the accused rapped the table with his index finger or two fingers or his hand, emphasising what he was saying. As the EROI progressed, this animated behaviour occurred more often and became more pronounced. At near half way through the EROI, when he said he was feeling anxious, flustered, confused and upset (see above), the accused was visibly distressed and anxious - he placed his hands on his head, and rubbed and held his head, multiple times, and he spoke rapidly and with extensive hand gestures. It was also around this time that, when he was not gesticulating or rapping the table, the accused's hands were clasped together with his thumbs rolling around each other. A little later, when Done was interrogating the accused's phone and he explained how he was 'flipping out' (see above), he was again clearly distressed and anxious. During the one minute break, he sat with his hands clasped together with his thumbs rolling around each other. Later, when explaining how and when he gets erections, the accused again placed his hands on his head, held his head, rubbed his head and looked visibly distressed. At about one and a half hours into the EROI, when the accused was told, for the first time, of the specific allegation made by NE (see below), his arms were folded across his chest, but his answers to questions were very long-winded, disjointed, often with unnecessary or complicating details, and with some words repeated many times, almost like a stammer. Shortly thereafter, when the accused described the 'hot dogs' game and the girls jumping on the bed, his rapping of the table was quite firm and loud. His speech thereafter, including when he agreed that the fleecy shorts incident may have occurred when he was lying on the bed, was long-winded, disjointed, rather erratic and repetitive. He was clearly exhibiting what CS's evidence established as his signs of suffering substantial anxiety manifesting in his behaviours and demeanour and causing him some confusion.
• [73] The defence argued that the manifestations in the EROI of the accused's anxiety (his words, his mannerisms, his demeanour and his behaviour) established oppression within s 84 of the UEA, created circumstances in which it would be unfair to the accused to use the EROI within s 90 of the UEA, and/or created a danger of unfair prejudice to the accused which outweighed the EROI's probative value within ss 135 or 137 of the UEA. The defence said the oppression and/or unfairness was enhanced because the accused's anxiety was substantially contributed to by various flaws in the way the EROI was conducted. The asserted flaws are addressed below and at the end of these reasons I consider the combined effect of the accused's anxiety and the asserted flaws that I accept to be relevant flaws.
• [74] The Crown argued that there was nothing in the EROI or CS's evidence to suggest that the accused's statements in the EROI made when suffering anxiety would be more likely to be untrue or inaccurate, and his performance in the EROI demonstrated that, despite any anxiety, he had the presence of mind to continue to confine his admissions consistently with his overarching narrative of having done nothing wrong.
• [75] To my mind, there is considerable force in the defence's submission. For example, when he first described the fleecy shorts incident, the accused said he could not recall the precise circumstances, but appeared to be referring to a situation in which he was standing up and NE 'grabbed' his penis on the outside of his shorts. Much later in the EROI, after being told of the specific allegation, the accused agreed that it could have happened when he was lying down on the bed in the spare bedroom. This is an admission to an instance which is far closer to the specific allegation than he had originally described (giving it significant probative value). I find that the accused is unlikely to have agreed to such a proposition if he was not suffering the heightened degree of anxiety attributable to some or all of the flaws in the EROI addressed below. Further, I consider there to be a real risk that the accused's words, mannerisms, behaviour and demeanour could be perceived by the jury as odd, inapt to the circumstances or coincident with guilt.

• [76] The accused was arrested at 8.39am on 22 November 2019 in Parap. At the time of arrest, a caution consistent with s 140 of the Police Administration Act 1978 (NT) ('PAA') was administered by Done, the accused was searched and the property he had in his possession, including his mobile phone, was taken from him by Police. The phone was handed to Done by the officer who took it from the accused. The accused asked for his wife to be contacted and informed of his arrest.
• [77] The accused was taken to Palmerston Watch House, processed into custody and the EROI commenced at 10.00am. About halfway through the EROI, Done told the accused she was interested in his phone because it would show communications between himself and NE's parents about babysitting arrangements. The accused told her that he regularly deletes text messages from his phone so he may or may not have the communications she sought. Done asked the accused to give her the passcode for the phone. The accused asked why. Done said 'so we can have a look'. The accused asked 'do I have to?' and Done told him he did not. He said there was nothing to hide but he was curious as to why. Done said she wanted to find the text messages. She told him she was happy for him to use the phone whilst it sat on the desk to see if he could locate text messages from NE's mother. The accused then located NE's mother in his contact list and said he blocks all calls because 'I'm neurotic ... [s]o, hence why I get very edgy about, it's to do with my anxiety'. Asked to explain 'neurotic', the accused said he gets very anxious if he has to provide his driver's licence to enter a club or buy alcohol and then said he was 'flipping out' and so on (see above), was offered water and the one minute break was taken.
• [78] After the break, Done asked if the accused used social media (he said he did not because of his anxiety), asked if he ever took photographs of NE and her sister (he said he did 'but always nothing less than the swimming costume'), asked what the accused used to take photographs with and if he had any other mobile phones. She then asked the accused to unlock the phone again so she could look to see if there were any photographs of the girls on it. The accused then navigated the phone to locate the photographs and showed Done what was there. She then asked to go back and have another look at messages. She asked why he had kept some from 2017, asked why he did not have more recent messages from NE's mother, asked how he travelled back and forth interstate, and later asked about whether he had internet access at his residences. Asked how he accessed the internet, the accused said he did so with his phone. Done then asked him to bring up the browser on his phone, and shelooked at and manipulated the phone to see if there was a browser history or bookmarks.
• [79] The defence submitted that Done had seized the accused's phone at the time of his arrest for an 'evidentiary purpose' rather than a 'safety purpose', seizure for an evidentiary purpose required a warrant, no such warrant was obtained and so the seizure was unlawful. The Crown pointed to s 144(1) of the PAA, which permits a member of Police to search a person in lawful custody, and s 144(2), which permits a member to seize anything (relevantly) relating to an offence found as a result of a search under s 144(1). The phone was a thing relating to an offence in the sense that it contained, and Done suspected it contained, communications between the accused and NE's parents about his babysitting NE.
• [80] It is unnecessary to determine whether a search warrant was required for Done herself to access and view the data on the phone (messages, photographs, browsing history, etc), and whether or not she could have obtained one. Done did not access and view the phone's data herself, she viewed the data after the accused agreed and accessed the phone using his PIN code and accessed its contents by looking (at Done's request) at various of its storage systems or applications. At the highest, Done scrolled through text messages in a screen the accused opened, and Done held the phone and clicked on the browser history and book marks at the browser page the accused had accessed.
• [81] The Crown argued that once the phone was lawfully seized into Police custody for 'evidentiary purposes' (ie because it is a thing 'relating to an offence'), there was nothing improper in asking the accused in an EROI to access the phone and show Police its contents. Defence argued that it was improper to proceed this way without re-administering a caution to the accused to the effect that he did not have to give consent, and anything found on the phone could be used in evidence against him. As set out above, the accused did ask if he had to give Done his PIN code and she told him he did not.
• [82] The defence argued this was insufficient as a caution because it lacked the second limb as to the use that could be made of what was found on the phone, and that if he had heard that, he may well have denied access to the phone, and said nothing further in the EROI. The Crown argued there is no requirement to give a caution in relation to 'real evidence', ie not what the accused might say, but the data found on the phone. Here, of course, what is in issue is the admissibility of what the accused said during the EROI, not what was found on the phone.
• [83] I do not consider that a failure to tell the accused that anything found on his phone could be used in evidence against him was an impropriety or would render the admission of the EROI unfair to the accused. Given the accused's previous employment, the initial s 140 caution upon his arrest, the further s 140 caution and his re-iteration of the meaning of it at the beginning of the EROI (which was not long after his arrest), I find he would have known that anything inculpatory found on the phone could be used against him in evidence if charged. Further, the accused would have known the contents of his phone before he agreed to provide his PIN code. Nothing inculpatory was found on the phone and the accused did not say anything inculpatory during the questioning about the phone.
• [84] The defence argued that, when asking for his PIN code, Done misrepresented to the accused what she wanted to see on the phone, in that she told him she was interested in communications with NE's parents, but actually or additionally she intended to see whether he had taken any inappropriate photographs of the girls and whether he had accessed any child abuse material on the internet. The Crown argued that whether such a motive might render the EROI inadmissible turned on whether there was a deliberate misrepresentation of the purpose of asking the accused to access the data on the phone in the EROI. As I understood the defence's argument, it asserted that Done's misrepresentation was deliberate.
• [85] Done's evidence was that her interest in the accused's phone was, primarily, the text messages for corroboration of, effectively, the accused's opportunity to commit the offending, and also the possibility of other information on the phone relating to, effectively, child abuse material. She agreed she was interested in the phone for three reasons, namely: (i) those text messages;(ii) photographs or videos of the girls; and (iii) other child abuse material. She agreed that she did not, when she asked him to unlock the phone, tell the accused she wanted to look for photographs or his browsing history, and then gave the following evidence:

So you had in mind what you wanted to do but you told him, 'I just want to look at the text messages'?---Well, that's what I did want to do at that time.

Well, you didn't tell him that you wanted to [sic] images or caution him at any stage later. You just conducted a wide ranging interrogation of his phone in an evidentiary EROI?---Well, I definitely got in to look for the text messages and then I can't remember at what point I've decided that that's exhausted, let's move on. I don't recall but ultimately I looked for those three things.

• [86] I am not satisfied, to the requisite degree, that Done had always intended to 'interrogate' the accused's phone for those three reasons (text messages, photographs and child abuse material) and had deliberately misled the accused by only telling him she wanted to see the text messages. The phone 'interrogation' was done in three stages, separated by other questioning. It cannot be said that the accused's initial agreement relating to the text messages then resulted in Done viewing the phone's photograph and internet browsing data. Before each stage, Done told the accused what she wanted to see and it was open to the accused, each time, to refuse Done's request to have further access to the phone for that purpose. It is also consistent with her evidence that the viewing of the photographs and the browser history happened after the accused's indication that he did take photographs and accessed the internet on his phone.
• [87] On the basis of CS's evidence referred to above, I find that the interrogation of the accused's phone significantly contributed to his increased and substantial anxiety level in the latter half of the EROI. This finding is relevant to my conclusions set out below.

• [88] By s 137(2) of the PAA, a Police member may, for a reasonable period, hold a person in custody to enable them to be questioned or investigations to be carried out to obtain evidence of or in relation to an offence. Section 138 of the PAA provides that in determining what is a reasonable period under s 137(2), the court must take into account various matters, including the time taken to communicate with a legal adviser, friend or relative of the detained person and the time taken by a legal adviser, friend or relative to arrive at the place where the questioning or the investigation took place.
• [89] By s 140 of the PAA, before a person in custody is questioned under s 137(2), the investigating member must inform them (relevantly) that they may communicate with or attempt to communicate with a friend or relative to inform them of their whereabouts and, unless (relevantly) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed, the investigating member must defer any questioning for a time that is reasonable in the circumstances and afford the person reasonable facilities to enable them to make or attempt the communication.
• [90] There is no direct statutory obligation upon Police members to defer questioning to enable a person in custody to seek or obtain legal advice. However, Police General Order Q1 (Exhibit D3) provides that:

(a) If any person being questioned requests that a third person be present, the member shall accommodate this request unless it is impractical to do so, provided the third person does not hinder or obstruct the interview (cl 4.6).

(b) If the person being questioned requests a consultation with a legal representative, the person should be given every reasonable opportunity to do so. If the person states they do not wish to make a statement or answer questions until after consulting a legal representative, the interview shall be deferred for a period as is reasonably necessary to enable the person to obtain legal advice (cl 4.7).

• [91] General Orders are made by the Commissioner of Police pursuant to s 14A of the PAA. A member commits a breach of discipline if they fail to obey a general order issued under s 14A (s 76(d), PAA).
• [92] CS's evidence was that between 7.30am and 8.00am on 22 November 2019, she received a call from a female Police officer (now known to be Done) who was looking for the accused and said she wanted to speak to him but would not say why. CS then spoke to the accused and told him about the conversation, and suggested he may need a lawyer. He dismissed the possibility. CS did an internet search for a lawyer and called the local firm Ward Keller, but got no answer.
• [93] Later that morning, before 9.38am, she received a phone call from a Police member, who told her that the accused had been arrested and he was at Palmerston Police Station. The police custody records (Exhibit D1) entry at 9.42am, showed that CS was called by Done and Commandeur at the accused's request and recorded that the accused spoke to his wife for approximately five minutes. CS's evidence was that she told the Police member that the accused was going to need a lawyer, that she would be organising a lawyer straight away, and asked the member to let the accused know. CS's evidence was that she did not recall speaking to her husband at the time of the call from Done. She said if she had spoken to the accused, she would have told him she was trying to get him a lawyer. In the EROI, the accused acknowledged that he had had the opportunity to speak to his wife.
• [94] CS's evidence was that, not long after she got off the phone, at 9.49am, she got a call back from an administrative staff person at Ward Keller, who told her that one of their criminal lawyers was in court but would be able to speak to the accused in about an hour. CS said that, at 9.58am, she called the Palmerston Police Station and spoke to a person called 'Angus' (now known to be Smith). The police custody records entry at 10.03am showed that Smith received a call from the accused's wife.
• [95] CS's evidence was that she told Smith she was the accused's wife and that she had organised a lawyer from Ward Keller, and that she wanted to speak to the accused to let him know. She told him the accused would be expecting her call. Smith told her she could not speak to the accused because he was being interviewed. She asked him to interrupt the interview and tell the accused that a lawyer would be coming soon. Smith told her he could not interrupt the interview. CS asked for the interview to be interrupted again, and told Smith the accused was allowed to have a lawyer. Smith refused.
• [96] Police custody records entry at 10.03am showed that, in the phone call with Smith, the accused's wife was asking to speak with him 'to let him know she was in the process of organising a lawyer' and she was told that Smith could not currently speak to him, but would let him know as soon as possible.
• [97] Police custody records entry at 9.58am showed that the accused was taken into an interview room with Done and Commanduer. It is clear that the EROI commenced at 10.00am.
• [98] CS's evidence was that she spoke to the lawyer from Ward Keller at 10.24am.
• [99] Police custody records entry at 12.03pm showed that CS called again asking to see the accused and was told that Smith would ask Done and Commandeur to call her when available. Police custody records entry at 12.05pm showed the accused was returned to his cell from the EROI. Police custody records entry at 12.12pm showed that the accused contacted CS by phone whilst in his cell with Done at the cell.
• [100] It is clear that the accused asked for his wife to be called at the time of his arrest in Parap at 8.39am. He was told by Done that arrangements would be made for that to happen. The Police custody records showed CS spoke to the accused shortly before 9.42am (before the EROI) and shortly before 12.12pm (after the EROI). Done gave evidence that the accused spoke on the phone to CS twice, once not long after he was processed into custody at the Palmerston Watch House and once after the EROI. Done had no recollection of the accused saying he wanted to see a lawyer, and said she was certain he did not because, if he had said so to her, that would have 'changed things'. Asked whether she would have facilitated access to a lawyer if it came to her attention that the accused had asked for one, Done said she would have confirmed with the accused that he wanted to see a lawyer, and if so, she would have facilitated it. She also agreed she would have interrupted the EROI if Smith had told her, after the EROI began, that the accused's wife had called to say she had arranged a lawyer for the accused, after checking that was what the accused wanted.
• [101] There is an issue as to whether CS told Smith she was organising a lawyer (as is recorded in the Police custody records) or that she had organised a lawyer (as CS attested). When she was challenged about this in cross-examination, CS's evidence was that she believed, on the basis of her conversation with the administrative person from Ward Keller, that she had organised a lawyer, who would be able to help as soon as she returned from court, and that is what she told Smith. There is no reason to doubt CS's testimony. She took contemporaneous notes of the calls she made that morning (although they do not record the detail of what she said to Smith) and, aside from this issue, her evidence was generally corroborated by the Police custody records. I prefer her recollections of what she told Smith and what Smith told her over what is recorded in the Police custody records.
• [102] I find that CS told Smith that she had organised a lawyer for the accused and that she wanted the accused to be told that; that Smith told CS the accused could not be told that because he was being interviewed; and that Smith declined to interrupt the interview to inform the accused about his wife having obtained a lawyer for him. I find that Done was unaware of this conversation. I also find that, if Done had been made aware of it, she would have interrupted the EROI to permit the accused a reasonable opportunity to take legal advice if he wanted to. There was no suggestion of urgency or of any reason the EROI could not wait for a few hours.
• [103] On the basis of these findings, there was no contravention of s 140 of the PAA or of cll 4.6 or 4.7 of General Order Q1, specifically because the accused did speak to his wife before being questioned, and because the accused himself did not ask for a lawyer or the opportunity to get legal advice.
• [104] However, the accused was deprived of a critical piece of information, namely, that his wife had organised him a lawyer. I note that, after being asked in the EROI if the girls had ever seen him naked, the accused said that he was hesitant because he knew that things could be misinterpreted and said 'I'm wondering at what point do I need to get some legal advice'. He was told that is up to him. He was never told that his wife had organised him a lawyer who could provide him legal advice. In such circumstances, the spirit of General Order Q1, if not the letter, has not been honoured. It seems to me that the failure of Smith to interrupt the EROI, which had only just begun, to inform the accused that his wife had organised a lawyer for him, denied the accused the reasonable opportunity to consider whether he wanted and, if he did to obtain, legal advice before proceeding with the EROI. In my view, that was clearly inconsistent with the minimum standards which society should expect and require of law enforcement officers. Consequently, that comprised an impropriety within s 138(1) of the UEA, bringing the EROI within its terms. Furthermore, given what CS said to Smith about the accused's entitlement to have a lawyer, and that the EROI had only just begun when she called, I find that Smith's failure to interrupt and inform Done that the accused's wife had obtained a lawyer was in reckless disregard for the protections of accused persons which General Order Q1 is intended to promote.
• [105] That conclusion requires consideration of the desirability of admitting the EROI against the undesirability of admitting an EROI obtained in such circumstances. The probative value of the EROI is significant, as set out in paragraphs [64] to [65] above. The evidence is important to the proceedings. There is considerable public interest in admitting the EROI in circumstances where it contains admissions and representations which bear on the credibility of the child complainant's evidence in this 'oath on oath' case involving allegations of a reasonably (but not gr[47]ely) serious nature.47 There is considerable public interest in requiring law enforcement officers to take reasonable steps to facilitate an accused person's access to legal advice prior to their being questioned. This is particularly so where the accused suffers from a mental health condition such as anxiety, which he disclosed at the outset and during the EROI, which could affect his ability to make decisions to participate in questioning and to answer specific questions and could also affect his words, mannerisms, behaviour and demeanour in the EROI, and which makes his access to legal advice all the more important. As set out above, I consider the impropriety to have been reckless. While the matter is finely balanced, I consider that the desirability of admitting the EROI does not outweigh the undesirability of admitting the EROI.

• [106] When he was arrested, the accused was told that he was under arrest for indecently dealing with a child under the age of 10. This was repeated to him in the EROI after 15 ½ minutes of 'background' questions. A further two minutes later, the accused was told that the child is NE. At that point, Done asked the accused what he could tell her about NE. After many detailed questions about the babysitting arrangements, some 36 minutes into the EROI, the accused was asked about games he plays with the girls and he described the 'hot dogs' game, said that he has obviously seen them naked, for example when they need help to change clothes, and then said:

I try to be as appropriate as I can and lift her up like a sack and that sort of stuff, so - um - I - ah - see where this going, I don't know, I'm questioning everything now, so I mean yeah, I've seen them naked, I don't think that - that would be out of the ordinary or where that would be a concern , I - I don't know.

• [107] The accused then described bath time and was then asked if the girls have seen him naked. That was when the accused wondered at what point he should get legal advice (see above). At this point, almost 40 minutes into the EROI, the accused asked whether he will be charged and asked to be told what the allegation is. Done's answer was: 'that you have indecently dealt with a child under the age of 10 named' NE. The accused said he did not understand what indecent dealing means. Done answered:

... so that's kind of where I am going now with my, with my questioning is, I've asked if they've ever seen you naked ... and you've said not intentionally ... I'd like to hear more about that and your explanation.'

• [108] The accused proceeded to answer that and further questions. He then described the fleecy shorts incident. The accused was asked whether there are other times when the girls may have seen his penis, whether he has asked either of them to touch it, or said that it feels good if they touch it, or if he has ever had an erect penis in front of them, and if he has asked either of them to keep secrets. There was then the phone interrogation and more questions about the fleecy shorts incident, erections and other things.
• [109] Almost one and a half hours into the two hour EROI, Done put to the accused that NE had told Police about an occasion in the spare bedroom where he had pulled down his zip, pulled out his erect penis, asked her to touch it, laid down, asked her to touch it again and told her it feels good when she touches it. That was the first time the accused was made aware of the specific allegation against him.
• [110] The defence argued that this failure to put the specific allegation to the accused at a much earlier time in the EROI, particularly when he expressly asked to be told, gives rise to unfairness within s 90 of the UEA because of the large amount of irrelevant but prejudicial material contained in the EROI as a result. By way of example, the defence pointed to the accused's statement about having seen the girls naked, which he volunteered because he was casting about seeking to explain an allegation of indecent dealing, which he did not understand and of which no particulars had been given. The defence submitted that such statements raise the risk of the jury's misuse of the evidence as evidence that the accused committed the alleged conduct, which it could not be when there is no suggestion that the alleged offending occurred when NE was naked. Other irrelevant matters pointed to are that the girls had sleepovers (NE's complaint was that the alleged offending occurred in the day time); that there are toys and books in the accused's home (there is no allegation connected to a toy or a book); the description of bath time (there is no allegation relating to bath time); the girls having seen the accused naked (there is no allegation of offending when the accused was naked); questions about what both or either girl had seen or been told (there is no allegation of offending against TE); questions about the accused's interactions with other children (there is no allegation of offending against other children); questions about the accused's car (the allegations have nothing to do with a car). The defence said the natural assumption by the jury will be that the accused has been asked these questions for good reason and, in the context of the nature of the alleged offending and other questions about pornography, masturbation and accidental erections, there is a real risk that the jury will use these aspects of the EROI to improperly reason towards guilt. The defence argued that, in addition, the accused's increasing anxiety, which is likely attributable (at least in part) to his lack of knowledge about the specifics of the alleged offending, and the prolonged questioning on many irrelevant topics, will further arouse the suspicion of the jury and raise the risk of improper use of the EROI.
• [111] The Crown argued that there was a reasonable legitimate forensic purpose for asking these questions and/or offered to edit the EROI to remove irrelevant material, such as the questioning about TE. As to the latter, it is difficult to see, for example, how questions such as 'have they ever had reason to see your penis' can be edited in a way not noticeable to the jury to sound like 'has she ever had reason to see your penis'. There are also many answers by the accused which use the word 'they' (and related pronouns) rather than 'she' (and related pronouns).
• [112] In my view, there is a large amount of material in the EROI which is irrelevant or barely relevant or which is relevant as relationship evidence, that raises a real risk that the jury will misuse it in reasoning towards the accused's guilt, for the reasons identified by the defence.
• [113] The Crown argued that the essential components of the specific allegation were effectively put to the accused by Done much earlier in the EROI, namely when Done asked the accused if he had ever asked NE or TE to touch his penis, or told them that it feels good if they touch his penis. The difficulty with that submission is that this occurred almost 45 minutes into the EROI, and some 5 minutes after the accused asked to be informed of the specific allegation, and after he disclosed the fleecy shorts incident. Further, the accused then had no idea that these comprised the specific allegations in respect of which he was being investigated. To my mind, this points to unfairness to the accused of admitting the EROI or those parts of it which include the fleecy shorts incident admissions.
• [114] I also agree with the defence submission that the failure to identify, early in the EROI, what the specific allegation is would have contributed to the accused's significant levels of anxiety because he was unaware whether anything he might say would somehow implicate him in the alleged offending. In addition, it seems to me that this failure may raise a question about whether the accused's consent to participate, or to continue to participate in the EROI, can be said to be freely given and so, whether any admissions, were voluntary. Given the conclusions below, it is not necessary to consider this possibility further.

• [115] When Done identified the specific allegation to the accused, she added the question: 'why would she tell me something like that?' Shortly thereafter, she added: 'it's quite a story for a six year old girl to come up with'.
• [116] The defence argued, and the Crown conceded, that these questions were impermissible for the reasons identified by the High Court in Palmer v The Queen.[48] As that decision makes clear, in an 'oath on oath' case, to raise the accused's inability to explain why a complainant would lie is to reverse the onus of proof by inviting the jury to accept the complainant's evidence unless the accused can give an explanation, and to focus on irrelevancies comprising speculation about the complainant's possible motives to lie, rather than on the evidence in the case.
• [117] The Crown argued that these questions can be edited out, leaving the accused's answers to go before the jury. The defence argued that to do so would be unfair to the accused because, in those answers, he is clearly struggling to address the improper questions, ie to explain why NE would lie.
• [118] To my mind, there would be a significant degree of unfairness in allowing to be put to the jury the accused's answers to such improper questions, particularly answers in which he was unable to explain why NE would lie or make up such a story, and stated that he cannot recall an instance in which he asked her to touch his penis, cannot think of an instance where he pulled his zip down in front of her, and would be 'speculating' or 'racking his brains'.

• [119] The defence raised numerous other matters which were said to cumulatively add to the matters of unfairness or danger of prejudice already referred to. Those matters included:

(a) Done displayed a lack of neutrality in the EROI by referring to the accused as 'the offender' at the beginning of the EROI, expressing incredulity about an answer given by the accused, referring to the accused's description of events as a 'story'[49], and observing that the accused's memory about the fleecy shorts incident had improved as the EROI progressed.

(b) Done began the EROI by suggesting that the accused used aliases or was known by different names.

(c) The questioning of the accused about the fleecy shorts incident was unduly prolonged and repetitive.

(d) Done instructed the accused not to leave anything out, even if he thought it was obvious or not necessary, and to give her as much detail as possible, which caused the accused to give lengthy, rambling answers, and which was improper because it is inconsistent with the caution that the accused need not say or do anything.

• [120] The significance of these matters is slight relative to the matters referred to above. Given the conclusions below, it is unnecessary to consider them specifically.

• [121] As set out in paragraphs [104] and [105] above relating to the failure to inform the accused that his wife had organised a lawyer for him, the EROI was obtained improperly or in consequence of an impropriety, and the desirability of admitting the EROI does not outweigh the undesirability of admitting it within s 138(1) of the UEA. The whole EROI is inadmissible on this basis.
• [122] As regards the admissions referred to in paragraph [34](g) above about the fleecy shorts incident having occurred whilst he was lying on the bed in the spare room, for the reasons set out in paragraphs [75], [87], [104] and [114] and accepting what is set out in paragraph [119](c) above, I conclude that the circumstances in which those admissions were made were such as to make it likely that the truth of the admission was adversely affected. The admissions referred to in paragraph [34](g) above about the fleecy shorts incident having occurred whilst he was lying on the bed in the spare room are not admissible pursuant to s 85(2) of the UEA.
• [123] For the reasons set out in paragraphs [75], [87], [104]-[105], [114] and [118], and accepting what is set out in paragraph [119](c) above, the EROI involved mental and psychological pressure on the accused arising from a number of factors combining to cause the admissions in the EROI to be made, namely his anxiety, the interrogation of his phone, the failure of Police to inform him that his wife had organised him a lawyer, the failure to put the specific allegation to him earlier, the many irrelevant questions or subjects covered, the questions requiring him to explain why NE would lie, and continuing with the EROI despite knowing the accused suffered anxiety, said he was at various points feeling very anxious, and began exhibiting clear signs that he was. In combination, the admissions in the EROI and the making of them were influenced by oppression in the conduct of the EROI within s 84(1)(a) of the UEA. The whole of the EROI is inadmissible.
• [124] For the same reasons, having regard to the circumstances in which the EROI was conducted, it would be unfair to the accused to use the evidence in the trial within s 90 of the UEA. The whole of the EROI is inadmissible.
• [125] For the reasons set out in paragraphs [62], [64], [75], [105] and [112] above, the EROI has significant probative value, but that is outweighed by the danger of unfair prejudice to the accused within s 137 of the UEA. The whole of the EROI is inadmissible.

[1] While the Outline of Defence Submissions on the Voir Dire on the Electronic Record of Interview dated 20 May 2021 appears to raise relevance under s 55 of the UEA as a ground for inadmissibility (see last unnumbered subparagraph of paragraph 3), no specific submission was made about relevance either in writing or orally. Furthermore, the defence conceded that the EROI contains admissions and representations about admissions within s 81(1) and (2) (see Defence (Further) Submissions on the Voir Dire on the Electronic Record of Interview dated 27 May 2021).

[2] See the definitions of 'prior representation' and 'representation' in Part 1 of the Dictionary.

[4] Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15th ed, 2020) [EA.81.60].

[5] Citing The Queen v JGW [1999] NSWCCA 116 at [39]- [41] per Wood CJ at CL (Barr and James JJ agreeing).

[6] (1995) 84 A Crim R 570 at 579-580 per Badgery-Parker, Dunford and Simpson JJ.

[7] See Abernethy v The Queen [2020] VSCA 96 at [57]- [58] per Niall and Emerton JJA.

[8] See Australian Law Reform Commission, Evidence (Interim) Report (Report 26, Vol 1) [755], extracted in Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15th ed, 2020) [EA.81.240].

[9] (2020) 94 ALJR 686 per Kiefel CJ, Bell, Gageler, Keane and Gordon JJ.

[10] See Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769; (2009) 258 ALR 598 at [48], [50] and [54] per Barrett J.

[11] See The Queen v Tupou [2016] NTSC 56 at [47]- [51] per Barr J and the cases there referred to. See also Carr v The Queen [2002] TASSC 60; (2002) 11 Tas R 362; The Queen v Bertrand [2008] VSCA 182; (2008) 20 VR 222 at [46].

[12] Given the agreed facts referred to in paragraph [64] below, and the proposition referred to in paragraph [15] above, it may be that the concession was unwarranted. In any event, the outcome in this matter does not turn on the characterisation of these statements as admissions.

[13] See, for example, WFS v The Queen [2011] VSCA 347; (2011) 33 VR 406 at [87] per Robson AJA (Buchanan JA and Whelan AJA agreeing).

[14] See, for example, Rolfe v The Queen [2007] NSWCCA 155; (2007) 173 A Crim R 168 at [67] per Giles JA ('Rolfe'), cited in The Queen v Gregory-Roberts [2016] NSWCCA 92 ('Gregory-Roberts') at [95] per Schmidt J (McCallum and R A Hulme JJ agreeing). In Rolfe, reference is made (at [68]-[69]) to The Queen v Centraco [2005] NSWCCA 11, in which it was held that an acknowledgement by the accused of a debt to her employer was admissible as an admission of a fact relevant to each of the three counts of obtaining money by deception, even though it could not have been determinative of any of the counts.

[15] See The Queen v Ali [2015] NSWCCA 72, cited in Gregory-Roberts at [96] per Schmidt J (McCallum and R A Hulme JJ agreeing).

[16] The Queen v Downs [2019] NTSC 7 ('Downs') at [18] per Grant CJ.

[17] See Higgins v The Queen [2007] NSWCCA 56 at [28] per Hoeben J (Sully and Bell JJ agreeing) ('Higgins').

[18] [2010] NSWCA 34; (2010) 76 NSWLR 299.

[19] Higgins at [26] per Hoeben J, cited in Habib at [246] per Hodgson, Tobias and McColl JJA.

[20] R v Ul-Haque [2007] NSWSC 1251; (2007) 177 A Crim R 348, cited in Habib at [248] per Hodgson, Tobias and McColl JJA.

[21] See The Queen v Ye Zhang [2000] NSWSC 1099 at [44] per Simpson J, cited in Higgins at [26] per Hoeben J (Sully and Bell JJ agreeing).

[22] [1991] VicRp 8; [1991] 1 VR 84 per Crockett, McGarvie and Beach JJ.

[25] Ibid at [30], citing R v GP (2015) 35 NTLR 117 at [30].

[26] (2015) 35 NTLR 117.

[27] Downs at [30] per Grant CJ , citing R v Esposito (1998) 45 NSWLR 442 at 459-460; R v Rooke (Unreported, NSW Court of Criminal Appeal, Newman, Levine and Barr JJ, No 60550/96, 2 September 1997).

[29] [2020] NTSC 71.

[30] Citing Em v The Queen [2007] HCA 46; (2007) 232 CLR 67 at [107] per Gummow and Hayne JJ.

[31] Citing The Queen v Swaffield (1998) 192 CLR 159 at [78] per Toohey, Gaudron and Gummow JJ.

[32] Citing The Queen v Tipiloura [2019] NTSC 92 at [23] per Grant CJ.

[33] Citing The Queen v Yirrawala [2015] NTSC 37 at [8] per Kelly J. See also the cases cited in paragraphs [13] and [18] above.

[34] Kadir v The Queen [2020] HCA 1; (2020) 94 ALJR 168 at [48] Kiefel CJ, Bell, Keane, Nettle and Edelman JJ.

[35] Ibid at [13] per Kiefel CJ, Bell, Keane, Nettle and Edelman JJ.

[36] Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at [28] per French CJ.

[37] Mole v Prior (2016) 36 NTLR 171 at [30] per Riley CJ, Kelly and Hiley JJ, citing Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 158 A Crim R 546 at [23] per Basten JA (Barr J agreeing).

[39] See The Queen v Bauer [2018] HCA 40; (2018) 92 ALJR 846 at [73] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ.

[40] Jennings at [20] per Grant CJ, citing The Queen v Shamouil (2006) 66 NSWLR 228 at [72] per Spiegelman CJ (Simpson and Adams JJ agreeing).

[41] (2001) 208 CLR 593.

[42] [1986] HCA 65; (1986) 61 ALJR 1 at 3 per Gibbs CJ.

[43] (1998) 4 VR 621 at 629, 631 per Callaway JA (Phillips CJ and Buchanan JA agreeing).

[44] At the voir dire on 24, 28 May 2021, the parties informed me that the agreed facts regarding these matters would be provided shortly after the hearing, to be tendered and taken into account on the voir dire. The agreed facts were provided on 10 September 2021.

[45] Citing Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 at 528 per McHugh J, who was there speaking of how prejudicial effect and probative value are 'incommensurables'.

[46] An assessment of probative value must be made in conjunction with all the other evidence to be adduced in the proceeding: Aytugrul v The Queen [2012] HCA 15; (2012) 247 CLR 170 at [30] per French CJ, Hayne, Crennan and Bell JJ; IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 at [45] per French CJ, Kiefel, Bell and Keane JJ.

[47] The maximum penalties for the alleged offending are imprisonment for five years for Count 1 and imprisonment for 14 years for Count 2.

[48] [1998] HCA 2; (1998) 193 CLR 1 at [7]- [11] per Brennan CJ, Gaudron and Gummow JJ.

[49] This point was ultimately resolved by my ruling, after watching and listening to the EROI that Done did not actually use the word 'story', but 'sorry'.