The Queen v B[1998] QCA 423

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 302 of 1998

Brisbane

[R v. B]

THE QUEEN

v.

B

 Appellant

McPherson JA

Thomas JA

White J

Judgment delivered 18 December 1998.

Separate reasons for judgment of each member of the Court:  each concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS: CRIMINAL - admissibility of confessional statements - statements to complainant in covertly recorded conversations - whether voluntarily  made - “person in authority” - s. 10 Criminal Law Amendment Act 1894 - whether to exclude as unfair trickery - undue pressure.

Collins v The Queen (1980) 31 ALR 357

Deokinanan v The Queen [1969] 1 AC 20

Dixon & Smith (1992) 62 A Crim R 465

Duke v The Queen (1989) 180 CLR 508

Ibrahim v The King [1914] AC 599

Jonkers v Police (1996) 67 SASR 401

McDermott v The King (1948) 76 CLR 501

Ousley v The Queen (1997) 71 ALJR 1548

R v Baldry (1852) 169 ER 568

R v Bodsworth (1968) 87 WN (Pt 1) (NSW) 290

R v Christou [1992] QB 979

R v Jeffries (1947) 47 SR (NSW) 284

R v Lee (1950) 82 CLR 133

R v McKay [1965] Qd R 240

R v  Scofield (1988) 37 A Crim R 197

R v Swaffield (1998) 78 ALJR 339

R v Thompson [1893] 2 QB 12

R v Todd (1901) 13 Man L R 364

R v Walbank [1996] 1 Qd R 78

R v Warwickshall (1783) 168 ER 234

R v Wilson [1967] 2 QB 406

Ridgeway v The Queen (1995) 184 CLR 19

Rothman v The Queen [1981] 1 SCR 640

Sinclair v The King (1946) 73 CLR 316

Criminal Law Amendment Act 1984, s. 10

Counsel:  Mr P Leask for the appellant

   Mr M C Chowdhury for the respondent

Solicitors:  Legal Aid Queensland for the appellant

   Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 24 November 1998

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 18 December 1998

1. I agree with the reasons of White J. for dismissing this appeal.

REASONS FOR JUDGMENT - THOMAS JA

Judgment delivered 18 December 1998

1. I agree with what White J has written. I wish to add some remarks on two of the grounds upon which it is contended that the appellant's admissions should have been excluded.
2. The admissions which the appellant made to his daughter (the complainant) were highly probative, notwithstanding his denial of full sexual intercourse. They reveal a depressingly familiar pattern of domination, the "training" justification ("to teach you what to avoid"), limited admissions of sexual impropriety and not a little hypocrisy. They were reliably recorded. That is a result which courts have been encouraging police to produce for a considerable time as it virtually eliminates allegations of fabrication that have taken up so much time in the courts over the past. In this case the end question is the reliability of the appellant's responses to his daughter's goading and encouragement to speak about the past. The collective wisdom of a jury is almost certainly the best touchstone for evaluating the reliability of such statements given the whole of the circumstances under which they were made.
3. Is there any ground of public policy or other ground upon which it is said that the judge should have kept these statements from the jury?

"Person in authority"

4. Confessions made to persons in authority are to be excluded if they are the result of a threat or inducement. "It is ... a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made".[1] Long before that statement was made in the High Court the rule had been given statutory force in this state, with an express presumption that every confession made after a threat or promise by a person in authority should be deemed to have been induced unless the contrary is shown.[2]
5. There is of course a considerable overlapping of the grounds upon which judges in criminal courts exercise the discretion to exclude evidence on the grounds of involuntariness, unfairness, excessive prejudice and unreliability.[3]
6. On the subject of involuntariness, some recent cases in New South Wales and South Australia have extended the ambit of the term "person in authority"[4] so that it readily includes persons such as complainants in sexual cases. In my view these decisions unduly expand the "involuntariness" ground to take over other areas under which the courts have ample and more relevant powers to exclude such statements. The trend of these cases is to impose a load upon this rule that it was not designed to carry, and they ought not to be followed. I agree with White J that the proper approach in determining whether a confession is involuntary is to examine the view point of the accused person.[5] If the accused would see the person asking the questions as a person in authority, the courts have perceived an unacceptable risk of expectation by the accused of advantage by co-operating or of disadvantage by failing to co-operate, thereby inducing answers which might otherwise be withheld. The risk of one's will being overborne by a person in authority would seem to be the basis of the rule against reception of confessions unless they are voluntarily given.
7. In circumstances such as those in the present case, I am quite unable to see how this accused man could have regarded his daughter from whose company he had been separated since 1978 when she was 14 years old, as "a person in authority". The artificiality of the concept would produce considerable difficulty in application of the principles under this strand of the law. Even if she were to be regarded as a secret police agent at the time (which I do not think she was) she cannot have been seen by the appellant as a person having any authority over him whatsoever. Of course every human being has the capacity to influence another, but I do not think that factors of that kind are the basis of this particular rule of exclusion of otherwise admissible evidence. If such evidence is to be excluded it must surely be on the basis of unfairness or impropriety.
8. This is not a case that properly raises the ground of involuntariness. I turn to the true question which, as I see it, raises issues which were discussed in Swaffield.[6]

Unfair trickery

9. It is very difficult to be critical of the police conduct in this case. The complainant had come to them, and part of her story was that her father had made limited oral admissions to her over the phone. They gave to her reasonable and proper advice, calculated to obtain reliable evidence for the court. Uncorroborated oral statements alleged by one person and denied by another are a far less satisfactory source of evidence than something that is recorded. I see nothing improper in the police advising this complainant to try to replicate the type of admission that she claimed had already been made. In such a situation a search for corroboration is an important part of the police function, and they ought not necessarily take at face value what a complainant says if reasonable means exist of checking the accuracy of what she claims.
10. When one party knows that a conversation is being recorded and the other does not there is an imbalance and a potential unfairness, though no greater than any case where one party to a conversation knows that legal proceedings are imminent and the other does not. The benefit of the recording is that the jury has an accurate record to evaluate with the benefit of a full overview of the situation, including any manipulative conduct of the complainant. 11 This was a real conversation between two citizens who had a particular relationship with one another. The conversation was not concerned with any issue whether the appellant was choosing whether or not to speak to the police and did not infringe his right of choice in that matter.[7] There is little doubt in the present case that the complainant asked questions of the appellant which she hoped would produce admissions supporting the complaint that she had made. In that sense there was elicitation which is a factor that is given considerable weight in Swaffield. However I find it difficult to characterise this occasion as an unfair trick, and equally difficult to regard the complainant as a "state agent".[8] In Swaffield Kirby J regarded the critical question as "whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value". His Honour continued:

"In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent^[9]."

12. I would not regard this particular exercise as unfair or improper. The police advice to the complainant to have a further conversation with her father and their recording of it were appropriate responses to the situation. The relevant acts in the present case clearly falls within the broad category of cases recognised by Kirby J as "acceptable deception" by law enforcement officials.

"Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest (Ridgeway v The Queen (1995) 184 CLR 19 at 37; R v Christou [1992] QB 979 at 989; cf Rothman v The Queen [1981] 1 SCR 640 at 697).  There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice.  Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority (cf Ousley v The Queen (1997) 71 ALJR 1548).  Such facilities must be employed by any modern police service^[10]".

There is no ground upon which these admissions should have been excluded from the jury's consideration.

13. I would dismiss the appeal.

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 18 December 1998

1. The appellant was convicted on two counts of incest and two counts of indecent dealing with a girl under the age of 12 between 1974 and 1976 in the District Court at Charleville on 13 August 1998. The complainant who was born on 4 July 1964 was the appellant’s daughter.
2. The notice of appeal contains one ground but leave was sought and not opposed at the hearing of the appeal to substitute other grounds, namely:

• that a conversation between the complainant and the appellant in early 1997 ought to have been excluded where the content of the conversation was not capable of amounting to admissions of guilt;
• that a “pretext” conversation recorded by the police between the appellant and the complainant in September 1997 ought to have been excluded as involuntary and/or unfair in circumstances where admissions were obtained by inducement and undue insistence and pressure;
• that that conversation ought to have been excluded on the further ground that it contained persistent allegations of improper conduct and denials in circumstances where the repeated allegations would be over-emphasized to the jury and thus be unfair.

The complainant gave evidence on voir dire about these conversations.  There were some differences between that account and before the jury but it is not necessary to detail them.

3. The complainant gave evidence that the appellant engaged in a course of sexual abuse against her from about the age of 6 until she was 11½ years occurring more than twice a month and that he had consumed alcohol prior to most but not all of these occurrences. The abuse took place when the other members of the family had left the house. She said that she was terrified of her father who, at the time of these offences would have been in his 30s. She described him as a cruel man who beat her and intimidated her.
4. The complainant was able to be specific about two occasions, the subject of the charges, when her father sexually abused her. The first occurred when she, her older sister and younger brother and mother were living at a particular address in Toowoomba. She was aged 9 years and in grade 4 at school. She and her sister had been on the early morning bread run with the appellant. He had been drinking for some time at a nearby hotel before taking them home. The sister was allowed to go out to play with friends but the complainant was detained by her father to have a sleep with him. The complainant said that they went into her parents’ bedroom, her mother was not at home, and after he removed her clothes he fondled her breasts and then applied brylcream to his fingers and rubbed her vagina before inserting his finger. The complainant told her father that this hurt and although he stopped that activity he rolled on to her and inserted his penis into her vagina. The complainant again told him to stop because it hurt her. He did so after a short while and then rubbed himself up and down on her vagina to ejaculation. When the complainant went to the toilet she noticed blood on her underwear and was upset. She washed out her clothing but did not tell her mother or anyone else because she was scared. Her father had told her that it was secret.
5. The second incident took place at another address in Toowoomba when the complainant was 11. She had commenced having her periods by this time. She had been at the local swimming pool and noticed that her father was watching her talk to a boy who was a neighbour. He took her home and “yelled” at her for talking to the boy. He then said “Daddy will teach you all these things, I’ve told you all that before, you don’t need to talk to other boys”. They then went into his bedroom where the appellant told her to take her top off. She was fighting him at this stage as he laid her on the bed and removed the rest of her swimsuit. He commenced fondling and touching her and then applied brylcream to himself and to her vagina and inserted his finger into her vagina. She screamed telling him to stop because it hurt and he did so. He then put his penis in her vagina but on this occasion went further than he had gone before and the complainant screamed at him that it hurt and pushed his hand out. He inserted his penis again and the complainant said that it hurt so much that she screamed and told him that she would tell her mother if he did not stop. He stopped and rubbed himself to ejaculation on her. The complainant said this was the last time he did anything to her.
6. The complainant said that she first complained about the abuse to her mother after her mother found a vulgar letter in her bedroom which had been given to her by a boy on the bus. She told her mother that it was not as bad as what her father had been doing to her. There was a confrontation between the complainant’s parents at which the complainant’s elder sister, who gave evidence, was present. Although the family attended at the police station the only person who appears to have spoken to the police was the complainant’s mother. A few days later the appellant moved away from the family unit. Until the mother remarried in 1978 the complainant saw her father in the presence of her mother occasionally but after 1978 she did not see him again for many years. Her mother died in 1979.
7. The complainant next had contact with her father when she was 18 and living in New South Wales. He telephoned her whilst he was visiting her sister in Warwick and “begged” her to visit him. She said she felt confused and emotional and did not know whether to see him and confront him about what had happened in the past. She went to Warwick but did not confront him because she was still scared of him.
8. The next contact was at the beginning of 1997 after the complainant had been able to find out where he lived. She said on voir dire and before the jury that she wanted him to acknowledge what he had done so that there could be some reconciliation between them and she could get on with her life. When she telephoned her father on this occasion she had not decided whether she would make an official complaint. In her evidence before the jury the complainant elaborated on the conversation. The appellant said that he wanted to see the complainant but she said that she could not see him until they had resolved some issues.

“[H]e said, “What issues are those?”, and I said, Well, I want to talk about what you did to me when I was a little girl.”  His first words were, “Look, that’s all in the past, put it behind you, I have.  You know, just put it in the past.  Put it out of your mind.”  I said, “I can’t, I can’t put it out of my mind, I have lived with it all these years.  I can’t”,  and he said, “Oh well, you know, just push it out of the way. I have.”  I said, “I need you to acknowledge that - what you did.”  He said, “You know, I did things to you girls, but - or you, but it was only to teach you, to teach you what to stay away from”,  and I said, “No it wasn’t, you did those things for more reasons than those”, and that’s all he would say.  Then we got on to the subject of my daughter and other things.” R66.

9. Thereafter the complainant made a statement to the police because of the appellant’s failure to admit what had happened in the past. She came to Brisbane and on 29 September 1997 arrangements were made with the police for her to telephone her father which would be recorded.
10. It appears that for editing reasons Detective Hall, who had recorded the conversation, read the transcription of the conversation to the jury. After some introductory conversation the complainant said that she thought she might come up and see the appellant soon to which he replied that she was welcome as long as she gave him some notice so that he could clean up his house. The complainant said:

“There’s a few things I need to talk to you about first though before I come up, a few things I need to sort out if that’s okay with you.”  R.107.

The complainant reminded him that she had spoken to him on the last occasion about what happened when she was a little girl and that she was unable to get it out of her head and if she was to see him again she needed to talk to him about it.  She said she wanted to know how he felt about it these days.  The appellant responded:

“Well K, as far as I am concerned, it’s in the past and it’s best just forgotten, it was a mistake on my part.”

The complainant said that she knew that it was a mistake on his part and that he felt it was best left in the past but that it had happened on “quite a few times” and she could not stop thinking about them.  She added:

“I mean, Dad, you went all the way with me and I was a little girl.”

The appellant replied:

“No, I didn’t go all the way at all my dear.”

The communication continued,

“K [the complainant] said, “Yeah, you did.”  B said, “No, no, no.”  K said, “Yeah, you did.” B said, “When you talk about going all the way, you’re talking about someone that goes right in and all this sort of things.”  K said, “That’s right, Dad, you put your penis inside me when I was a little girl.”  B said, “Didn’t go inside you.”  K said “Yeah, you did Dad.” B said, “Did not.”  K said, “All right, whatever you say.”  B said, “No, definitely.”  K said, “Well you tell me how you see it?  You tell me how you see it? What you did to me, you tell me what you did to me?”  B said, “Listen, I don’t like talking about it K”.  K said, “I don’t like talking about it either, but if I want to see you, I have to get it out of the way and I want to come up and see you so I need to talk to you about it, it’s just that simple”.  B said, “K I was - I’d like to talk to you about it too, but I don’t like talking over the phone about it”.  K said, “Neither do I, but I can’t see you face-to-face until I get it sorted out.  I want to know how you feel.  I want to know what you remember.”  B said, “I remember.”  K said, “Because I remember everything, I’ll never forget, but I want to know what you remember.”  B said, “I remember I made a mistake.”  K said, “How many times, Dad?”  B said, “Oh it was more than one or two, I know that.”  K said, “A lot more than one or two, Dad.”  B said, “But you see K, it’s not the way you thought either, I don’t know where you got this.”  K said, “What do you mean not the way I thought Dad?  I felt, not thought, I felt, not thought, I felt.”  B said, “No, well listen.”  K said, “What you did to me.” B said, “Yeah well now, just listen, now just - just a minute.  You see, I was always under the belief that you teach people things.” K said, “You do teach people things, Dad, but when - when you are a little girl’s father, you don’t teach her how to have sex.”  B said, “Well I - I was, actually it started out with me, it was in a way it was to try and teach you what to avoid, you see.”  K said, “So you um, you had sex with me to teach me to avoid sex?  That doesn’t make sense.”  B said, “No, no I didn’t, I didn’t have - I didn’t have sex with you honey."  K said, “You did.”  B said, “No, no we played around, that was all.”  K said, “We didn’t play around and it was wasn’t playing.”  “Okay, we didn’t ever play, we didn’t sit down and play cards you had sex with me and it wasn’t playing.” B said, “K.  K I did not have sex, have sex insert it at all, I never penetrated or anything like that.”  R.107-8.

11. The exchange continued along similar lines until the appellant said,

“What - what - what I was trying to do - well, look, it was a mistake on my part and I will admit that.  It was a big mistake on my part, but at the time I thought that I was doing a thing that would teach you not to let other people do to you.”  R.109.

The appellant continued saying that he was sorry and would undo it if he could and had made a mistake. The complainant added that it was more than one mistake and that she had had to pay for it over many years.  The appellant said:

“I do realise it and - and you may not believe this but I am dead set against all these people who do things with children and that.  I hate them like hell.”  R.109.

The complainant expressed some astonishment as to how he could hate such people and yet be one of them and had done it to her.  The appellant responded that he was trying to explain that he had make a mistake many years ago.  After some further exchanges the appellant said that he just wanted to be “Dad and daughter” and the complainant responded, “We can’t ever do that until we work through what you did to me” and that perhaps it could happen “down the line” and that he would have to face what he had done to her.  The conversation concluded with questions by the appellant as to whether she still lived in a particular place and whether she worked and finished with expressions of affection.

12. A further conversation was initiated by telephone with the appellant which was recorded but was excluded by the learned trial judge on the ground that it was unintelligible.
13. The appellant gave evidence at his trial that the mistakes to which he referred in the tape recorded conversation were nothing to do with sex but disciplinary matters which had occurred in the past including stopping the complainant from doing things or going out. He denied the specific acts alleged by the complainant but admitted that he had twice touched his daughter “on the private part”. He said that in the early part of 1975 he had come home “with a couple of beers” and had started “fooling around” with his daughter, “having a bit of a tickle”. The complainant was dancing around behind him “so I just crouched down and swung me hand back like that and just intending to grab her on the funny bone, you know”. He said that he “sort [of] misjudged” what he was doing and his hand hit her on the leg. He gathered her dress up and his fingers touched her in the groin area.
14. On the second occasion which occurred about 18 months later the appellant had come home from work and gone into the bathroom. As he walked in he saw his daughter standing up in the bath naked. He apologised and said he was annoyed by what he thought was a provocative pose, recalled that he had recently “caught her with a boy” and got cranky so he “swung around and I patted K on the inside [of] the leg and I said, “Don’t ever let boys touch you there” ... I touched her where I shouldn’t have.” R.161.
15. The appellant was interviewed by the police on 13 December 1997. His interview was read to the jury by Detective Sergeant Ferry again, apparently, for reasons of editing. In that interview the appellant admitted to a wider range of inappropriate sexual contact with the complainant than he gave in evidence but at no time admitted to sexual intercourse or indecent dealing of the kind constituting the charges. He there tended to blame any inappropriate activity on drink.
16. Although the appellant raises as a ground of appeal that the learned trial judge erred in admitting evidence of the unrecorded conversation in early 1997 because it contained no admissions relating to the charges, Mr Leask, who appeared for the appellant, conceded that if the pretext conversation of 29 September 1997 was admitted then counsel below would have wanted the earlier conversations before the jury to put the inducement in context. It is, accordingly, unnecessary to say anything more about the earlier conversation except that in the context of the evidence as a whole it could be viewed as containing admissions of sexual impropriety.
17. The appellant contends that the recorded conversation on 29 September 1997 should have been excluded on the ground that the admissions made were not made voluntarily but were obtained as the result of inducement. This was not the basis for the application to exclude below where exclusion was sought on general grounds of unfairness. No reference was made to s. 10 of the Criminal Law Amendment Act 1894 but it is now submitted that the learned trial judge ought, himself, to have raised it, R v Walbank [1996] 1 Qd R 78.
18. The appellant contends that the complainant’s statements that she would not see him until he had admitted what she said he had done to her was an inducement which operated on his mind to make the admissions that he did, and at all relevant times the complainant was a person in authority within the meaning of s. 10. A difficulty for the appellant who gave evidence at his trial is that he gave no evidence to this effect.
19. Section 10 provides:

“No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.”

20. The appellant relies particularly on comments by Wood J in R v Scofield (1988) 37 A Crim R 197 to show that the complainant was a “person in authority” when the conversations took place. His Honour observed at 200:

“It seems to me from the reported decisions that if the person offering the inducement is the victim of a criminal offence in which category I would include a complainant in a sexual case, then he or she would answer the description of a “person in authority”.”

Taken in isolation that may seem well outside the accepted meaning of “person in authority” but it needs to be considered not only in the circumstances of the case but also by reference to the authorities mentioned by his Honour.

21. It is convenient first to make some general observations about the admissibility of confessional statements. Section 10 provides that confessions which are obtained in certain specified circumstances are involuntary and are to be excluded. It is but one aspect of the common law rule excluding the admission of confessions not voluntarily made. That common law rule continues in Queensland without being confined by s. 10, R v McKay [1965] Qd R 240; R v Walbank. Its most quoted exposition is by Lord Sumner in his speech in Ibrahim v The King [1914] AC 599 at 610:

“[T]he rule which excludes evidence of statements made by a prisoner, when they are induced by hope held out, or fear inspired, by a person in authority, is a rule of policy.  “A confession forced from the mind by the flattery of hope or by the torture of fear comes in so questionable a shape, when it is to be considered as evidence of guilt, that no credit ought to be given to it”: R v Warwickshall (1783) 1 Leach, 263; 168 ER 234.  It is not that the law presumes such statements to be untrue, but from the danger of receiving such evidence judges have thought it better to reject it for the due administration of justice: R v Baldry (1852) 2 Den Cr C 430 at 445; 169 ER 568 at 574.” 

22. Dixon J observed in Sinclair v The King (1946) 73 CLR 316 at 334-5:

“The argument is that the admissible evidence of a confession must be an expression of the independent will of the confessionalist and, moreover, must derive from the circumstances in which it is made that assurance of trustworthiness which the law finds in the improbability of a false admission being made of incriminating facts.”

As Brennan CJ noted in R v Swaffield (1998) 78 ALJR 339 at 341:

“Although unreliability has remained the raison d’être of this rule of exclusion, the nature and effect of the inducement became the touchstone of its application.”

23. The High Court in R v Lee (1950) 82 CLR 133 at 144 adopted Dixon J’s statement in McDermott v The King (1948) 76 CLR 501 at 511 of the common law rule regarding confessional statements:

“These rules, stated in abbreviated form, are - (1)that such a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as a result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, and (2) that such a statement is not voluntary if it is preceded by an inducement, such as a threat or promise held out by a person in authority unless the inducement is shown to have been removed. These two “rules” are, of course, well established, but it is important, we think, in this case to observe that they seem to be not really two independent and co-ordinate rules.  There seems to be really one rule, the rule that a statement must be voluntarily in order to be admissible.  Anyone of a variety of elements, including a threat or promise by a person in authority, will suffice to deprive it of a voluntary character.  It is implicit in the statement of the rule, and it is now well settled, that the Crown has the burden of satisfying the trial judge in every case as to the voluntary character of a statement before it becomes admissible.”

24. Accordingly, as Brennan CJ observed in Swaffield at p. 342, unreliability and the overbearing of the confessionalist’s will are twin justifications of the rule excluding confessions that are not voluntary. Therefore the effect of conduct by those in authority upon the confessionalist must be examined to determine whether the confessionalist’s will was overborne, Collins v The Queen (1980) 31 ALR 357 at 307. Any confessional statement must be considered in the circumstances in which it was made and by reference to the age, background and psychological condition of the confessionalist, Collins 343.
25. An important question in this case is whether the complainant was “a person in authority”. Dixon J in McDermott said that the expression “person in authority” includes “officers of police and the like, the prosecutor, and others concerned in preferring the charge”. Although not always expressed in subjective terms, the preponderance of authority suggests that the impression or perception which the confessionalist might have in relation to the person rather than the person’s actual authority objectively ascertained will determine whether the person is a person in authority for the purposes of the rule or the legislation. The Privy Council in Deokinanan v The Queen [1969] 1 AC 20 quoted with approval the dictum of Bain J in R v Todd (1901) 13 Man L R 364 at 376:

“A person in authority means, generally speaking, anyone who has authority or control over the accused or over the proceedings or the prosecution against him.  And the reason that it is a rule of law that confessions made as a result of inducements held out to persons in authority are inadmissible is clearly this, that the authority that the accused knows such persons to possess may well be supposed in the majority of instances both to animate his hopes of favour on the one hand and on the other to inspire him with awe ...”.

26. In Deokinanan an acquaintance had been to a prison to see the appellant at the request of the appellant’s brother and in the course of their conversation the appellant asked him to recover money which he had stolen. The acquaintance said that he would try to help him. He told the police and in due course was placed in a cell, ostensibly for some wrong-doing, into which the appellant was introduced. The appellant made further confessional statements to him. Their Lordships agreed that there was no inducement held out by the acquaintance to the appellant and even if there had been, the acquaintance, although by then a potential witness for the prosecution of the appellant, would not have been regarded by the appellant as a person in authority, at 31.
27. In R v Wilson [1967] 2 QB 406 a case referred to by the Privy Council and Wood J in Scofield, Parker CJ noted at 415 that there was no clear definition as to who does and who does not come within the category of a person in authority. A householder whose home had been broken into and whose property had been stolen was dissatisfied with the police progress and traced the appellant himself. He offered him money for the recovery of his goods. The appellant “was worried” about the householder’s position but nonetheless made admissions and arranged for the return of his goods. The Court of Appeal held the householder to be a person in authority even though, in a practical sense, he would have been unable to prevent a prosecution from being instituted or to stultify a prosecution once on foot. So too, in R v Thompson [1893] 2 QB 12, the chairman of a company whose money was said to have been embezzled by the accused, was held to be in a position of authority.
28. Similarly Matheson J in Jonkers v Police (1996) 67 SASR 401 concluded that a “foster” mother of a 15 year old girl who was living in the family as part of a placement arranged by a Government department was a person in authority for the purposes of receiving confessional statements by a man whom the girl accused of indecently assaulting her. His Honour said:

“Mrs Owen was in a very real sense in loco parentis, and it was within her “power to place the wheels and the prosecution in motion”.  Within the meaning of the old authorities, she was “a person in authority” (R v Scofield (1988) 37 A Crim R 197),” at 408.

29. In Dixon & Smith (1992) 62 A Crim R 465 Wood J with whom Hunt CJ at CL and Sharpe J agreed, after an extensive review of the authorities said at 483:

“As a matter of principle, it seems to me proper to have regard to the impression conveyed by the person offering the inducement.  There is support for this in the authorities reviewed, and it reflects the purpose behind both the common law and section 410, to exclude confessions obtained under influence, or as the result of threat or offer of favour.  Unless the inducement comes from a person supposed by the accused to have some capacity to carry it into effect, it would be unlikely to elicit a confession that would otherwise be withheld.  I would accordingly hold that a person in authority includes any person concerned in the arrest, detention or examination of the accused, or who has an interest in respect of the events, or who otherwise is seen by the accused by virtue of his position, as capable of influencing the course of the prosecution, or the manner in which he is treated in respect of it.”

30. Returning to the facts in Scofield, the accused had been charged with an offence of indecently interfering with his young son. He and his wife were separated. She challenged him with allegations of this type and told him that he could not see their children unless he admitted what he had done. In one conversation she told him that he would have to go to the police station and tell what he had done before she would let him see the children, which he did. During the trial it was contended that he made the admissions only so that he could see the children. The confessional statements were excluded because they were held not to be voluntary.
31. Whilst there is no doubt that a complainant in a sexual prosecution may be characterised a person in authority, the circumstances of each case must be examined with some care to avoid elevating that person in a role which, in truth, that person does not fill. It is the impression upon the mind of the complainant which is the governing factor. There is nothing in the fairly guarded responses by the appellant which suggests that he had any inkling or apprehension that his daughter was a person who might put “the wheels of prosecution” in motion. This was quite a different relationship in fact from those in Thompson, Wilson, Scofield and Jonkers where the inequality in the relationship, in terms of the power of the person to whom the admissions were made was apparent to the confessionalist. Even the persistent accusations by the complainant were no more and, I would suggest, appeared to be no more to the appellant, than the stubbornness of a child. I would not conclude that the complainant was a person in authority in respect of the appellant for the purposes of s. 10.
32. That is a threshold question and issues of inducement only arise if the complainant is so characterised. It is, however, useful to say a few words about the nature of the alleged inducement. The appellant contends that by conditioning him seeing the complainant upon admissions of sexual intercourse and other inappropriate conduct towards her his admissions were unlawfully obtained by inducement. In practical terms, the complainant’s conduct did not produce the admissions which she was sought to obtain. Although the judge did not have the advantage of hearing the tape and therefore the tone of voice of each participant, expressions such as “if that’s okay with you” do not suggest undue pressure. It is important to recall the admonition in R v Bodsworth (1968) 87 WN (Pt 1) (NSW) 290 at 299: “to avoid putting ingenious constructions on colourless words so as to detect the hint of improper inducement, as was at one time the case, but rather to construe the words only according to their natural, obvious and commonsense meaning”.
33. The appellant was not induced to make the statements of admission which he did make in the hope that his daughter would come to see him. Although the complainant raised the appellant’s past abuse in the context of coming to see him, there is no suggestion in the appellant’s responses that had she raised the abuse without mentioning visiting him, his responses containing admissions would have been withheld, Dixon & Smith at 483. The clear flavour of the conversations is at least of equality between the two. There was no suggestion by the appellant when he gave evidence that any pressure by the complainant caused him to say what he did. Rather he sought to explain the statements away as not being admissions of any improper conduct of the kind upon which the charges were based.
34. The second ground of appeal is that even if the admissions were made voluntarily the inducement was such that the evidence should have been excluded on the grounds of unfairness. As I have said, this was the basis upon which the matter proceeded before the learned trial judge. In Duke v The Queen (1989) 180 CLR 508 Brennan J observed of the discretion to exclude on the grounds of unfairness:

“If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded.  Trickery, misrepresentation, omission to enquire into material facts less they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification - to name but some improprieties - may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or be silent.”

As was said in R v Lee at 144 quoting from two passages by Street J in R v Jeffries (1947) 47 SR (NSW) 284 at 311-14, it was a question of degree in each case and for the presiding judge to determine, in the light of all the circumstances, whether the statements or admissions of the accused had been extracted from him under conditions which rendered it unjust to allow his own words to be given in evidence against him.

35. The appellant contends that the inducement offered by the complainant was such that it would be unfair to have allowed his evidence to go before the jury. There was no unfair inducement in my opinion extended by the complainant to her father such as to cause him to make admissions against his interest. The tone of the conversation was, as I have commented, at least of equality if not suggesting some level of control by the appellant. The learned trial judge appropriately left the question of inducement to the jury when assessing the conversations.
36. The further basis upon which the appellant contends that the conversation should have been excluded was that he was subjected to undue persistence in allegations of wrong-doing by the complainant and that would, accordingly, have unduly prejudiced him in the eyes of the jury. The allegations and denials have been set out above. The conversation between the complainant and the appellant was read into evidence by Detective Hall and was repeated by Detective Ferry because it was put to the appellant at his record of interview. If there was any potential for prejudice, arising out of the complainant’s persistence his Honour recognised it.
37. He was prepared to rule that those portions of the conversation where the complainant repeatedly put propositions to the appellant followed by denials could be excluded but that the admissions were to be retained. Experienced counsel for the appellant below wanted the whole of the conversation in, if the admissions were to be retained, in order to balance the admissions with the denials, a course not open to criticism. Although it is unlikely that the complainant would have been permitted to give her evidence in a trial in the matter in which she spoke to the appellant, there was nothing improper involved in her insistence on the appellant’s wrong doing and no unfairness was accorded to the appellant in admitting the conversation.
38. In my view no error has been demonstrated by declining to exclude the conversations.
39. I would dismiss the appeal.