SUPREME COURT OF QUEENSLAND

1. McMURDO P:  On 11 June 1999 in the Supreme Court at Brisbane the appellant was charged with three counts of supplying a dangerous drug to a minor, eight counts of indecent treatment of a child under 16, seven counts of unlawful carnal knowledge, one count of taking indecent photographs of a child under 16 (count 9), one count of assault occasioning bodily harm and one count of maintaining an unlawful sexual relationship with a child with a circumstance of aggravation.  On the same indictment, Inwood and Westerberg were charged with multiple related offences.  The appellant pleaded guilty to count 9 and not guilty to the remaining counts.  After a 12 day trial, he was convicted to three counts of supplying a dangerous drug to a minor, five counts of indecent dealing with a child under 16 years, six counts of unlawful carnal knowledge and one count of maintaining an unlawful sexual relationship with a child under 16 years with a circumstance of aggravation.  The indictment records acquittals in respect of three counts of indecent treatment (counts 7, 15 and 22) and one count of unlawful carnal knowledge (count 14).  These were directed acquittals.  The jury also acquitted the appellant of assault occasioning bodily harm (count 25).  The appellant was sentenced to varying terms of imprisonment, the longest being six years for maintaining an unlawful relationship with a circumstance of aggravation.

2. Mr Hunter, who appears for the appellant, now relies on only two grounds of appeal against conviction. Firstly, he claims the primary judge erred in admitting into evidence conversations between the witness Buffington and the appellant on 24 and 26 August 1998. His second argument is that counts 13, 16 and 26 should have been withdrawn from the jury or, alternatively, the verdicts of guilty in respect of those counts are unsafe and unsatisfactory. The application for leave to appeal against sentence is only pursued if the convictions on those counts are set aside.

The facts

3. The complainant was born on 15 June 1983 and was 13 to 14 years of age during the period covered by the indictment from 28 January 1997 until 22 January 1998.  I summarise her evidence in the order it was given.

4. At the end of 1996, the complainant's family moved to Mt Tamborine and the complainant commenced her schooling as a day student in Grade 9 at a nearby private school at the beginning of 1997; after about two terms she moved to an interstate boarding school, returning home for holidays.

5. The appellant operated a butcher shop at Mt Tamborine; his co-accused Inwood was an employee and his co-accused Westerberg was a supplier; he also employed an apprentice named Dale and one of the complainant's school mates, Stephen, aged about 15 or 16, as a clean-up boy.

6. In December 1996, whilst doing an errand for her mother, the complainant was whistled at as she walked past the shop; later that day she and a friend went into the shop to visit Dale who was known to her friend. She visited the shop regularly to see Stephen, soon visiting every day after school. She developed a sexual relationship with Stephen about half way through the first term of 1997; sexual encounters occurred in the toilets down an alleyway, at the back of the shop and on one occasion at her house.

7. Soon after meeting the appellant she told him she was 13 years old and he expressed surprise. The complainant had heard through Stephen that the appellant grew cannabis and she asked him for $15 worth. He took some cannabis from a big cryovac bag, placed it into a small clipseal bag and gave it to her in return for the $15 (count 1).

8. She had not used cannabis before and onsold it to other juveniles. Later she purchased more of the cannabis and smoked it in a homemade bong; it had a different effect to alcohol; it made her happy, very hyperactive and then she went to sleep.

9. She asked him for more drugs to sell to her friends; the appellant told her to come back the next day. She did so and handed him the money which he rejected saying, "We want you to suck us all off". Later, after the shop was closed and cleaned, she performed fellatio, firstly on Westerberg (count 2), then on Inwood (count 3) and then on the appellant (count 4). All three ejaculated. The appellant gave her a larger quantity of cannabis than on the first occasion (count 5).

10. The complainant appeared to be having difficulty recalling her evidence chronologically and said, "I'm going to jump ahead here, if you don't mind." During the second school term she rang the appellant from school and asked him to get her a bottle of vodka, a bottle of Baileys, two packs of cigarettes and $50 worth of dope to take on a school camp. He agreed and she went to the shop with the money but he again refused the money saying, "it's going to have to be sex". She agreed as she had told friends at school she was able to get the goods and she was having trouble making friends. The appellant took her clothes off and she lay on a metal tray at the back of the butcher shop looking at the white ceiling whilst she let him have sex (count 10); then Inwood had sex with her, stopped and ejaculated on the floor; when it was all over she ran out crying. This was the first time she had sex with them. The next day, which was the day before the drama camp, the appellant gave her the alcohol and drugs she requested (count 12). She was caught with the alcohol and cigarettes at the drama camp and was suspended from school for three days; the marijuana was successfully hidden from the teachers.

11. One school night during first term, at about 6 o'clock, she was sitting around drinking beer after the shop was closed and the appellant slid his hand up her skirt in front of Inwood and Dale and inserted two fingers into her vagina. She was wearing her school uniform (count 6).

12. On another occasion when she was talking to Stephen as he was washing up the dishes, the appellant came up behind her and fingered her again, putting his hand underneath her shorts.

13. She remembered a time when she owed them money for drugs. She ran into Stephen who told her that they did not want money, but photographs of her. Stephen eventually persuaded her to agree and asked if he could watch. She said he could not watch but he could participate. Late on a Saturday afternoon the shop was closed and she took her clothes off and put on a butcher's apron. The appellant and Inwood told her and Stephen how to pose and Westerberg took 12-16 photos, including photographs of her performing oral sex on Stephen, Inwood touching her on the vagina and penetration of her vagina with a beer bottle (count 9). The photos were taken before her first act of sexual intercourse with the appellant.

14. She could not remember any incident between the incident where the appellant put his fingers inside her vagina and when the photographs were taken.

15. She went to Sydney on 14 March to visit her sister whose birthday was on 13 March. On 11 March she was at the butcher shop and she remembers Stephen spilling bleach which marked her black cord jeans. The appellant fingered her when she was talking to Stephen; he then performed oral sex on her, saying, "What is wrong? Don't you like it?" He asked for sexual intercourse; she declined but eventually agreed. They had intercourse in an awkward position which began with them standing against the smoke house but culminated in her sitting on his lap and moving up and down until he ejaculated. She wiped herself with a paper towel (count 13).

16. She returned from holiday in Sydney and commenced her second term at school. Dale was no longer employed at the butcher shop. She recalled sitting in the fridge on a cold day; the appellant grabbed his crotch and she performed oral sex on him but it was so cold he did not finish and they left the fridge (count 16 or, the appellant submits, count 7).

17. She could not remember the first occasion she gave Inwood oral sex but the second occasion was outside the freezer. He asked for and she gave him a "job on the rocks" which required her to suck his penis with ice in her mouth. This occurred on a different day to the incident in the fridge with the appellant.

18. She met Christine Buffington who started work in the shop in about April or May; they shared the same birthday in June.

19. Towards the end of the year in December just before Christmas, perhaps on Saturday, 13 December, Westerberg drove her home and they were feeling each other's genitals. She let him have sex with her in his car.

20. She became a boarder later in the year and was home on holidays at the end of 1997. On the day that her mother was to attend a masked ball in the evening, the complainant rang the appellant and asked him over. He gave her oral sex in the guest bedroom and then they had sexual intercourse (count 23). After he left, her mother came home to get her mask.

21. Before she went back to school for the fourth term she said to the appellant and Inwood that she was having her friends home at the end of the year; each week she would ring them and give them the name of a bottle of alcohol for them to purchase for her. In return, she would have sex with each of them. She had sex at the back of the shop with the appellant late one week night (count 20). She had sex with Inwood in the fridge whilst Stephen watched one Saturday before she went back to school.

22. The appellant and Inwood bet a carton of Corona beer that Inwood would not ejaculate as he had had sex with his wife that morning. Inwood entered her from behind and had sex with her for more than 15 minutes without ejaculating. She left the fridge and said to the appellant, "Guess what, you just won yourself a carton of beer." She was unsure whether she had had intercourse with anyone in the fridge before this occasion.

23. One night in the butcher shop, during either the third or fourth term holidays, she was using a lighter to give herself a "smiley" on the palm of her hand by pushing the flame of the lighter against the skin so that the burn would leave a mark resembling a smiley face. Inwood said, "We could give you a smiley" and the appellant grabbed her shoulders and pulled her down onto his stomach whilst Inwood held the hot lighter to her bottom; she was screaming at them to let her go and it was really painful (count 25).

24. She remembered an occasion when she was at the local private school and the appellant asked her to give him oral sex out the back of the shop. She did not want to and he began to masturbate in front of her pushing her head onto his penis. She kept refusing. A small amount of ejaculate was on his hand and he went to slap her across the face with it but missed. The appellant used to say that was the worst thing he had ever done to her (count 15).

25. On another occasion, after she commenced boarding, perhaps during her third term holidays, the appellant and Inwood thought it would be funny to tie her four limbs to the smoke house door. She could not move and was screaming to be released. Inwood started to suck her breast and bit her whilst the appellant was fingering her. She struggled until they untied her. Most of the time she had consented but this time she had not. When they untied her, she stared at the appellant in anger for about 15 seconds. She said "it was really awful" (count 17).

26. She gave the appellant a card and some scratchies for his birthday in October and he asked what else she had for him; he asked her for sex and she agreed. He gave her oral sex and they then had sexual intercourse on some hessian bags and a tarpaulin on the floor near the smoke house (count 19). She said "happy birthday" and left.

27. On another occasion at the back of the shop she had sex with the appellant whilst he sat on a salt bag and she sat across his lap. As he was moving, the shelves moved and something fell off them nearly hitting her (count 20).

28. She could not remember the last time she had intercourse with the appellant.

29. She had intercourse with the appellant on the salt bag a couple of times. On one occasion late on a Saturday afternoon the appellant asked her for sex and she eventually agreed. They had sex on the salt bag and after he finished he said, "You never seem too impressed." She said, "Wayne, do you know what I am thinking about every time this happens? … I am thinking about your wife and your children" (count 26 or, the appellant submits, count 14).

30. The appellant often told her he loved her and he and the co-accused sent her a birthday card when she was recovering from chicken pox.

31. When she returned from her boarding school at the end of term four she asked to collect the bottles of alcohol he had promised her. He gave her two bottles and she shared them at a party. Later that night she and her friends took a St Vincent de Paul's sign from upstairs and put it outside the butcher shop and spat on the shop windows. The next day when she was walking past the shop Inwood grabbed her and dragged her into the butcher shop; she was screaming for help. The appellant asked her why she spat on the shop windows but she denied responsibility. They talked and as she left she said, "You know, it would only take one phone call, one phone call and I could see you three bastards behind bars." The appellant said, "Don't you threaten me." Later that day she went to the police.

32. In early 1998, about a week before the spitting incident, she took an overdose of sleeping pills, phoning the appellant before phoning her mother.

33. Stephen, the clean-up boy, gave evidence that from 1995 he worked part time at the Eagle Heights butcher shop.  He commenced a sexual relationship with the complainant when he was about 15 or 16.  On a couple of occasions when sexual activity occurred, the appellant and Inwood were present.  The appellant and Inwood had given the complainant some alcohol; photographs of the complainant and him involved in sexual activity were taken as payment.  On another occasion he saw the complainant give the appellant a "head job".  He also saw Inwood having sex with the complainant in the butcher shop fridge; she was bent over and Inwood was behind her.  On another occasion, he saw the appellant have sex with the complainant on a metal cutting bench at the shop.  He also saw them having sex whilst the appellant was seated on a salt bag with the complainant sitting on top of him.

34. The appellant, Inwood, Westerberg and he discussed with each other their sexual exploits involving the complainant. Either the appellant or Inwood spoke of "giving her a whole lot of pot if she blew them all off".

35. The appellant, Inwood and Westerberg were arrested in June 1998. Stephen was interviewed by police in a number of tape recorded interviews which he afterwards discussed with the appellant and his co-accused. The appellant, Inwood and Westerberg met with him and listened to one of the taped interviews at the Yatala Pie Shop. They said the taped interview was "good and just leave it like it is". Each time he gave the police a statement he showed it to them. A couple of weeks after his third statement he told police the truth about the involvement of the appellant and Inwood.

36. The complainant's mother gave evidence that the complainant was born on 15 June 1983.  Around about 13 March, the birthday of the complainant's sister, she had an argument with the complainant and she became aware that the complainant had some marijuana in a brown paper bag; she arranged for her to have a week's visit with her older sister who was living and working in Sydney.  The complainant returned on the Easter weekend.

37. When the complainant attended a drama camp in term two she received a call from the headmistress about alcohol at the camp and the complainant was suspended from school for a couple of days. Later, for other unassociated reasons, she withdrew the complainant from the local school. She did not attend school for the rest of second term and then boarded interstate.

38. She knew the appellant, Inwood and Westerberg. She spoke to the appellant about her daughter's 14th birthday. The complainant spent a lot of time at the butcher shop during school holidays.

39. When the complainant was home for the Christmas holidays her mother attended a masked ball on 11 December. Inwood spoke to her at the shopping centre and suggested she should go home as the appellant was going over to her house and he and the complainant would "do something they'll regret". She returned home on the pretext of picking up the mask but saw no sign of the appellant.

40. On 12 January the complainant took an overdose of pills and was hospitalised overnight. About 10 days later she became aware of her daughter's complaint to the police.

41. Peter Farmer, aged 17 at the time of trial, worked at the butcher shop from April 1997 as a clean-up boy.  He met the complainant at the shop on his first afternoon at work; she was dressed in her school uniform.  One afternoon he opened the fridge and he saw the appellant and the complainant crouched down; they stood up as he opened the door, did up their flies and left the fridge.

42. Christine Buffington worked casually in the butcher shop from March to December 1997 and met the complainant there.  During this time Buffington had a sexual relationship with the appellant and Inwood, at times together; on one occasion she had intercourse with the co-accused Westerberg.  This sexual activity occurred either in the fridge or at the back of the shop.  Indecent photographs were taken of her.

43. A few months after she started work she saw the appellant in the fridge with the complainant and he was touching her on the waist; as she walked past he quickly pulled away. She asked him why he took the complainant home rather than to her parents. He said that she wanted sex with him all the time. She thought that while she was working at the shop he also told her he had sex with her twice on his birthday.

44. After she was interviewed by police, at their request she contacted the appellant and Inwood and arranged to meet them in the National Park whilst she was wired with a hidden tape recorder. During that conversation the appellant denied giving the complainant a lift home and "giving her a head job (sic)" but he said the complainant "fucked" him. She asked the appellant whether the complainant had given him two on his birthday and he replied, "No, that is what she said." Buffington said, "You told me she came in and gave you another one." The appellant said, "Yeah, she fucked me. Yes, she did, but they don't know that."

45. As the equipment did not record, at the request of police she again arranged to meet the appellant and Inwood at the back of the butcher shop where a successfully taped conversation took place.

46. Police officer Turner interviewed the appellant on 29 June 1998 in a video and audio recorded interview.  He was advised that if he wished he could phone a friend or relative or lawyer and arrange to have a lawyer present during the interview.  The complainant's detailed allegations were put to him; he admitted taking the indecent photographs of the complainant which were located in the course of the execution of the search warrant that day but otherwise denied all the allegations.

47. Police officer Walker became involved in this investigation on 29 June 1998 when he was one of a number of police officers who executed a search warrant on Eagle Heights Quality Meats butcher shop.

48. A number of indecent photographs were found but did not show the face of the woman involved; the photos were later established to be of Buffington. Indecent photographs of the complainant were found; with them were photographs of the appellant and the co-accused Inwood. No cannabis was located.

49. He interviewed Christine Buffington and took two statements from her, the first in relation to her knowledge of the complainant and the second as to Buffington's relationship with the appellant; Buffington did not then implicate the appellant or his co-accused. On 24 August she provided a further statement which implicated the appellant. At Walker's request, Buffington arranged a meeting with the appellant and the co-accused Inwood and wore a body wire recording device which was relayed to a separate receiving device where Walker could clearly hear the conversation. Attempts to use a night recording device to film the meeting did not produce any identifiable pictures. The technical officers from Brisbane advised Walker that the tapes may not have recorded; he suggested she makes notes of her conversation to the best of her recollection. He made his own notes about 40 minutes later. The conversation relevant to this appellant, was as follows: the appellant said the complainant's statement read like a Penthouse; Buffington asked him about the photographs involving her; the appellant said that he was sick; Buffington asked the appellant what if the police questioned her and she told them that she saw Inwood and the appellant drop the complainant off in the car; Buffington asked him about the head job with Stephen and the complainant that occurred in the car; the appellant admitted he "fucked" the complainant; the appellant denied supplying the complainant with drugs; Buffington asked him whether the complainant had sex with the appellant on his birthday to which he replied, "No, she had sex with me"; the appellant told Buffington, "If the coppers come around just tell them to fuck off"; Buffington mentioned an incident where the complainant had sex with the appellant twice in the one day and the appellant replied, "Look, they don't know anything about that. Don't mention that"'; and the appellant and Buffington recalled an incident where she saw the appellant and the complainant in the fridge at the butcher shop touching each other's hips.

50. The next morning police officer Walker was informed the tape recording had been unsuccessful. Buffington agreed to another meeting where she was again wired and a conversation which included the following was tape recorded:

"B [Buffington]:  Um, when you fucked me, and you fucked her, who was better?

BK [appellant]:  Hey?

B:  Who was better?

BK:  You were fuckin heaps hey.

B:  Why not her?

BK:  Hey?

B:  Why not her?

BK:  The only fucking good thing about her, at the time, was her age.

B:  Age?

BK:  Yeah, it's the only fucking kick there was, hey, the age.

B:  But then, what did you get out of it, keep doing it, but?

BK:  It was only four time hey.  They come up with four fuckin charges with carnal knowledge.  That's it hey.

B:  Yeah, but how many times did you fuck her?

BK:  Na that's about fucking it hey.

B:  About four?

BK:  Yeah that's about it.

B:  Hey.

BK:  You've seen what it used to fucking parade around like hey, you've seen what it used to parade around like, a fuckin hey.

B:  It was great for you but not really for me.  I put up, you know, I don't fucking have salami stuck up me, I don't have fucking frozen dildos fucking stuck up me.  I don't have friggin …

BK:  That one had it too hey, fucking dildos.

B:  Yeah.

BK:  …

B:  You did that to her too?

BK:  Hey

B:  You make one for her too?

BK:  Yeah she done it herself hey, try to be an adult.

BK:  Yeah no one deserves fucking nothing hey.  I deserve a kick in the arse.

B:  You deserve more than a fucking kick in the arse.

BK:  I don't, no cunt deserves to go to jail though.

B:  But paedophile.  You fuck a 14 year old, Wayne, how old are you, 31?

BK:  Mmm.

B:  What's fucking wrong with you really?

BK:  Huh.

B:  Why, why young?

BK:  Because they can't, I've never really had any young ones, fuck never ever hey.

B:  Never had what?

BK:  Never had any of them fucking youngings hey.  You've seen the old sheilas I look at hey.

B:  Yeah, but why her then?

BK:  Fucking all then, I dunno fucking do any of them fucking touch her hey.

B:  Yeh well you used to say to them fucking you know.

BK:  Fucking oath, but this, I dunno, I mean fucking bird, fuck … come along.

B:  Yeah, but even though she wanted it, you should have been smart enough not to do it because of her age.

BK:  ……….Yeah.  I took the photos and fucking yeah ……….

B:  Life's fucked.  The whole fucking mountain's going to know.

BK:  They don't know about you.  Hey, ……….as soon as they come and see ya, say you've never seen anyone touch her or anything.

B:  I'd say nothing.  I need to fucking know where I stand and what the fucking you know.

BK:  Just you and me had an affair and fucking.

…

BK:  Just remember no-one knows nothing hey.

B:  Did you used to fucking do it up the arse with her.

BK:  No.

B:  No, just up the fanny.

BK:  Mmm.

B:  Did you used to sit on the fucking bag like you used to do me?

BK:  I couldn't even really tell you hey.

B:  How can photos, now work this out, you took photos you said this the other night, you took photos of her before I even started.  How can they have been done before I even started when I was here working, things were getting done to me and youse were talking about photos fucking you know that were getting done on that.

BK:  I couldn't even tell when they were done hey.  I honestly don't remember when I've fully racked me brain ……….

B:  So you reckon, you reckon I was better than what she was and you only say that because you …

BK:  You, fucking oath.

B:  … want me to hear that.

BK:  No fucking way ………. totally different hey.  That's what I'm saying, all it was was her fucking age.

B:  Hey?

BK:  All it was was her age.

B:  Her age?

BK:  Yeah.

B:  Yeah, but there's a lot of kids walking around at that age.

BK:  Mmm."

51. Paediatrician, Dr Richard Roylance, examined the complainant on 9 March 1998 when she was 14 years of age.  A genital examination disclosed a mid line ridge or thickening of the hymen but he could otherwise detect no obvious abnormalities in the hymen.  When asked whether his observations were consistent with the complainant's allegations that she had intercourse probably at least 15 times, he replied:

"… in general the more frequent the intercourse has been, the more vigorously physical it has been, the more likely it is that I would expect to find physical changes.  So I find that unusual.  I would normally expect to find some changes with that degree of sexual intercourse but the physical findings are not – do not preclude that history."

52. After the first examination, he saw photographs of the complainant that showed a bottle inserted into the vaginal cavity. He re-examined the complainant but his observations remained the same. He noted:

"… it was of itself interesting that having seen an object deeply inserted into the vaginal cavity, I would have expected that object itself to have produced some changes.

…

What I think it speaks to is just how elastic this particular area can be, and over some years we have been sort of explaining that depending on the amount of relaxation, depending on lubrication and other factors, it is – I suppose we shouldn't be surprised.  People give birth through the same canal, but just how elastic that area can be, and that concept that things can go through that area reasonable sized, not leave any changes, I think it is continually coming back to us as being the reality.

… the normal physical findings do not exclude the history of penetration."

53. The posterior fourchette can be abraded during intercourse; it is unusual for such abrasions to produce lasting scarring.

54. The defence admitted that the complainant commenced at the local private school on 29 January 1997 and finished at that school on 7 May 1997. Term 1 commenced on 29 January 1997 and finished on 27 March 1997. Term 2 commenced on 14 April 1997. The drama camp commenced on 18 April 1997. The complainant's parents were phoned by the principal on 19 April 1997. The complainant was suspended for 21 and 22 April 1997. The complainant commenced at the interstate boarding school on 15 July 1997 at the commencement of term 3. Term 3 finished on 19 September 1997. Term 4 commenced on 6 October 1997 and finished on 3 December 1997.

55. Neither the appellant nor his co-accused gave or called evidence.

Should the evidence obtained by Buffington at the request of police have been excluded?

56. At the trial, counsel for the appellant objected to the admissibility of the evidence of conversations between Buffington and the appellant after he was arrested and charged on 29 June 1998. The learned trial judge ruled that the evidence was admissible and declined to exclude it on the basis of unfairness to the appellant.

57. Mr Hunter, who appeared for the appellant, submitted that as the appellant had been charged and the investigatory phase of the case had concluded, a proper exercise of judicial discretion required exclusion of the confession on the grounds of unfairness.

58. Mr Hunter relied on the following comments made by Macrossan CJ and Mackenzie J in R v Davidson:TP^[1]PT

"Proper and effective police investigations of crime will always rely on questioning and also the use of informants but still a point will be reached in the work of police officers when their freedom of questioning and the form which it will permitted to take will be curtailed.  When a person has been charged a clear stage has been reached and it will be obvious to police officers that the accused's right to silence must be allowed for.  From that point on, they will have at the forefront of their minds the accused person's entitlement to be protected against compulsion to provide proof against himself.  It is relatively easy to state rules of fairness which should regulate further police contact with the accused person after that stage is reached and the Judges' Rules provide guidance in this area.  But the Judges' Rules are not over-rigid in their selection of the point at which police processes and the form of police contact with the accused commence to be relatively closely regulated.  A stage which is less than precisely capable of objective identification is the stage when police have made up their minds to charge a person even though they have not actually done so.  The distinction between two broad stages of police and prosecution work, namely the investigatory stage and the accusatory stage with a significance for the rights of citizens who may be involved, has been commented upon from time to time, for example by Mason CJ in Van der Meer at 661; and by Stephen J in Alexander (1981) 145 CLR 395 at 418.  It is obvious that if there did not exist a rule like r 2 and some underlying general concept of a requirement for fair treatment of citizens, unscrupulous police officers could delay the making of a formal charge and collect additional evidence in ways that might be oppressive or unfair.  A general concept of procedural fairness finds expression in the Judges' Rules."

59. In Davidson police arranged for Don, a person whom the accused knew and trusted, to speak to Davidson whilst he was in custody serving a sentence in respect of an unrelated matter.  Don was wired with a secreted recording device.  Davidson made admissions to Don of his active involvement in the murder.  Davidson had not refused to answer police questions; he had been questioned by police about the victim's death and although he attributed principal responsibility to another had offered to assist the police with their investigations; the investigation was still in the investigatory stage at the time Davidson confessed to Don and the charge was most serious.  The majorityTP^[2]PT concluded that the trial judge acted correctly in declining to exclude the evidence.

60. The High Court has most recently considered this issue in R v SwaffieldTP^[3]PT and Pavic v The Queen.TP^[4]PT Swaffield was charged with breaking and entering and arson.  He declined to be formally interviewed by police and was discharged at committal.  An undercover police officer had a conversation with Swaffield during which he pretended that his brother-in-law was in trouble for burning a car.  Swaffield admitted to the officer his involvement in the fire.  Fresh charges were laid against him and the trial judge declined to exclude that evidence.  Swaffield was convicted and the Court of Appeal allowed the appeal, quashed the conviction and entered a verdict of acquittal.  On appeal, the High Court unanimously concluded that the admissions were rightly excluded by the Court of Appeal. 

61. The majority (Toohey, Gaudron and Gummow JJ) stated four bases for excluding such confessional evidence. The first concerned voluntariness: was the statement made in the exercise of a free choice to speak or be silent in that the will of the accused was not overborne.TP^[5]PT  Accepting that the statement was made voluntarily, the second basis justifying exclusion was that it would be unfair to the accused to admit the confessed statement.  The third basis was that on public policy grounds it would be unacceptable to admit the statement into evidence, notwithstanding that it was made voluntarily and would not be unfair to the accused.  The fourth basis was the discretion to reject evidence the prejudicial impact of which is greater than its probative value to guard against a miscarriage of justice.TP^[6]PT

62. The majority discussed the Canadian authorities of R v HebertTP^[7]PT and R v Broyles.TP^[8]PT  In Hebert, McLachlin J said:TP^[9]PT

"The common law rules related to the right to silence suggest that the scope of the right in the pre-trial detention period must be based on the fundamental concept of the suspect's right to choose whether to speak to the authorities or remain silent."

and recognised that the decision to speak to police must be the product of an "operating mind."TP^[10]PT

63. The relevant facts in Broyles have similarities with this case.  Broyles was charged with murder; the evidence against him was largely circumstantial but included a statement which Broyles made to a friend after his arrest and after he had been cautioned that he was not required to say anything.  The friend visited Broyles in prison at the request of the police and wore a secret recording device.  The friend questioned the accused about the killing of the deceased.  The court identified the relevant questions as being, first, whether the friend was an agent of the State and, second, whether the accused's statement had been elicited by the friend.   The court answered each question affirmatively, noting that the admissions were made in answer to questions in the nature of an interrogation, not just in the natural flow of conversation and excluded the evidence.

64. The majority in Swaffield and Pavic noted that where the accused's freedom to choose to speak to police has been impugned, the court has a discretion to reject the evidence and will look at all the circumstances.TP^[11]PT  In Swaffield's case they concluded that there had been no illegality and that although there had been a breach of Rule 2 of the Judges' Rules which required a police officer to warn a suspect once the police officer had made up his mind to charge a person with a crime, that did not dictate exclusion of the admissions.TP^[12]PT  They then considered the test used by the Canadian authorities, firstly, did the subterfuge obtain admissions likely to be in violation of an informed right to choose whether or not to speak to police, and secondly, was the admission elicited.  They concluded that the admissions were elicited by an undercover police officer in clear breach of the informed right to choose whether or not to speak and were rightly excluded.

65. On the other hand, Pavic was informed by police officers of his right to remain silent and was questioned in an interview in which he exercised that right. At the end of the interview, the police officers told Pavic that they believed he had committed the offence of murder however he was not charged and was released from custody. Clancy, a close friend of Pavic, was interviewed by police and at the conclusion of that interview the police believed they had enough evidence to charge Pavic with the murder. Nevertheless they suggested to Clancy that he, on behalf of the police, speak with Pavic and carry a secreted recording device. Clancy agreed and Pavic made taped admissions to involvement in the killing. The trial judge declined to exclude that confession and Pavic was subsequently convicted of murder.

66. The majority identified the facts and issues in Pavic as close to those in Broyles.  As to the first issue, the meeting occurred at the request of the police who provided the recording device, and Clancy must be regarded as an agent of the State.  The second issue was whether the admissions by Pavic were elicited by Clancy or were made in the course of a conversation; was it an interrogation?TP^[13]PT  A substantial portion of that conversation is set out in the judgment of Kirby J.TP^[14]PT  The majority concluded that there was no justification to interfere with the trial judge's refusal to exclude the evidence even though the trial judge had concluded that the admissions were volunteered by him to Clancy "in a somewhat limited fashion".TP^[15]PT

67. The relevant facts and issues in this case have similarities with Pavic.  There is no suggestion the admissions were not voluntary in the sense the appellant was overborne.  The major issue for consideration is unfairness to the appellant and requires a consideration of all relevant circumstances.  Prior to being charged the appellant had already made admissions to Buffington of sexual impropriety with the complainant.  The appellant was not in custody at the time he made the admissions to Buffington; he appeared aware of his rights when interviewed by police officers and later when speaking to Buffington, advising her to tell the police to "fuck off"; he admitted to police only the offence of which he knew they had damning evidence implicating him; in respect of the remaining offences, he did not exercise his right to remain silent but positively denied involvement to police.  Although he did not know  Buffington was acting as a police agent, she did not tell lies to induce his admissions; any trickery was limited to the fact that unbeknown to him, she was an agent for the police. The conversations breached Rule 2 of the Judges' Rules in that Buffington was acting as an agent of the police; the appellant had already been charged with the offences and was not warned of his right to remain silent. On the other hand, the appellant was not in custody and was in an environment in which he felt comfortable and from which he could freely withdraw.TP^[16]PT On one view, the admissions made to Buffington were selective.  There is nothing to suggest that anything in the way the admissions were elicited created a danger as to their reliability; the appellant appeared to have chosen to speak with Buffington, although it was not an informed choice in that he was unaware she was acting as an agent for police.

68. Applying the Canadian test in Broyles, adopted in Swaffield and Pavic, it is clear that Buffington was acting as an agent for police.  The crucial issue is whether the admissions were made in the course of conversation or an interrogation.TP^[17]PT  The conversation set out at [50] of these reasons is remarkably comparable in style to the conversation between Pavic and Clancy.TP^[18]PT  Although Buffington asked questions of the appellant, this was done in a conversational rather than interrogational manner and the appellant was selective in his admissions.  These facts do not necessitate discretionary exclusion.  As the learned trial judge pointed out, the parties were, at worst for the appellant, on equal footing, with the appellant perceiving Buffington as vulnerable.

69. There are no public policy grounds requiring the exercise of the discretion in favour of excluding the confessional statements to Buffington. The complaint made and the charges brought related to serious offences which are notoriously difficult to prove because of the secrecy which ordinarily surrounds their commission. I am not persuaded that obtaining evidence in this manner infringed public policy considerations so as to require their exclusion; nor was that approach taken by the majority in Swaffield and Pavic.

70. The final basis for discretionary exclusion is that the prejudicial impact outweighs the probative value of the evidence. The damning evidence from the appellant's own mouth was certainly prejudicial but also extremely probative. There was no requirement for the evidence to be excluded on this basis.

71. The consideration that the appellant had already been charged and therefore the investigative process ordinarily concluded is a factor to consider in the exercise of the discretion to exclude admissions obtained by a police agent on the basis of unfairness, but it is not conclusive. Police officers are not necessarily precluded from obtaining further evidence to strengthen their case simply because the defendant has been charged; all relevant factors must be considered. The circumstances of this case set out above and especially the conversational rather than the interrogational nature of the confessions do not compel the exclusion of the Buffington conversations. I am unpersuaded that the trial judge's refusal to exclude the evidence of the conversations warrants interference by this Court: House v The King.TP^[19]PT

Should counts 13, 16 and 26 have been left for the jury's consideration?  Alternatively, were the verdicts in respect of those counts unsafe and unsatisfactory?

Count 13

72. The indictment alleged count 13 occurred between 20 April and 8 May 1997. In the opening the prosecutor said the offence was the second time the appellant had intercourse with the complainant. It occurred at night-time on a school day; the complainant was wearing her uniform; the appellant sucked her breasts, performed oral sex upon her, put his fingers inside her and then had sexual intercourse with her; there was some conversation which included a statement by the appellant to the effect of "What is wrong? Don't you like it?" Intercourse commenced as they stood against the steel smokehouse door, however the appellant achieved only partial penetration because of the awkward position and they completed the act with him squatting on the ground and her straddling him. Inwood was watching throughout. The evidence given by the complainant is set out in [15].

73. There were substantial differences between the complainant's account of this incident as particularised in the opening and her evidence. She said she was wearing black jeans that had bleach spilt on them, not school clothes as opened; she said that Stephen was present when the appellant put his fingers in her, whilst it was opened that Inwood was present throughout; it was opened that the appellant sucked her breasts, whilst she did not mention this in her oral evidence. The prosecution in its opening of count 8 (the sucking of Inwood's penis with sausage-shaped ice in her mouth) said that it was on this occasion that she splashed bleach on her jeans. The complainant's evidence was that the incident occurred on 11 March, before the dates alleged in the indictment.

74. The complainant had to give detailed evidence of a large number of matters which occurred some years earlier; she was only 16 years old at trial; it is hardly surprising that she was confused as to details; the inconsistencies in her evidence were pointed out to the jury in the course of the defence address; the complainant was consistent in her evidence that this incident took place after some persistence on the part of the appellant and concluded with carnal knowledge in an awkward position against the smokehouse door, finishing with the complainant wiping herself with a paper towel. The date is not an element of the offence and need not be proved beyond reasonable doubt where, as here, it has no essential relation to the charge.TP^[20]PT  Unlike R v K,TP^[21]PT the count was sufficiently identified to allow the jury, if they accepted the complainant's evidence beyond reasonable doubt as to the essential elements, to convict the appellant. 

Count 16

75. The particulars in the prosecution opening of counts 7 and 16 were very close. The prosecutor conceded at the close of the prosecution case that count 7 should be taken away from the jury as no evidence of it had been given by the complainant; the jury were directed to acquit. Count 7 was alleged to have occurred during the first term whereas count 16 was alleged to have occurred between 7 May and 14 July 1997. The complainant gave evidence of only one act of indecent dealing by the appellant in the refrigerator. There was an inconsistency between her evidence on this point and her evidence at the committal where she said there had been only one incident in the refrigerator and that had involved intercourse. The appellant submits that inconsistency and the lack of clarity as to whether the evidence related to count 7 or count 16 required that both counts should have been taken away from the jury.

76. As has been noted, the complainant had difficulty in recalling the chronological order of events and some details. She said this offence occurred in the fridge on a very cold day; for that reason the jury were entitled to conclude that this was the offence which occurred in the colder months between May and July (count 16) rather than that which occurred in the warmer months of first term (count 7). Defence counsel at trial submitted to the jury that they could not be satisfied this evidence related to count 16 rather than count 7; the jury rejected that submission and were entitled so to do.

Count 26

77. The complainant's evidence as to count 26 was that sexual intercourse took place with the appellant on a salt bag at the back of the shop.TP^[22]PT  This count was opened as the last time sexual intercourse took place but in her evidence the complainant said she could not recall the last time she had intercourse with the appellant. Her meaning was not clear; she may have meant she could not remember the date this occurred.  The ambiguity was not clarified at trial.  A similar incident was particularised in respect of count 14 but the complainant gave evidence of only one such incident.  The jury were directed to acquit on count 14.

78. For the reasons already given in respect of counts 13 and 16, such confusion as to detail was understandable; these inconsistencies were matters for the jury to consider when assessing the complainant's reliability generally; the ambiguity as to the meaning of her statement that she could not recall the last time she had intercourse does not mean the verdict is flawed. Defence counsel submitted to the jury that the complainant had confused counts 14 and 26 and that they could not be satisfied of the appellant's guilt on count 26. The jury was entitled to reject that submission if they accepted the complainant's evidence as to the elements beyond reasonable doubt.

79. Counts 13, 16 and 26 were rightly left for the jury's consideration and the verdicts of guilty on those counts were reasonably open on the evidence.

80. The application for leave to appeal against sentence was dependent upon the success of the appeal against convictions in respect of counts 13, 16 and 26 in whole or in part. The failure of those grounds of appeal make it unnecessary to further consider that application.

81. I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.

82. DAVIES JA:  I have had the advantage of reading the reasons for judgment of the President.  I agree with her that the appeal against conviction should be dismissed and that the application for leave to appeal against sentence should be refused.  And subject to what I say below with respect to the first ground of appeal against conviction I agree generally with her Honour's reasons for those conclusions.

83. There are, in my opinion, four reasons why evidence of the appellant's admissions to Ms Buffington were rightly admitted.

84. In the first place, as the President has pointed out, the recorded conversation between the appellant and Ms BuffingtonTP^[23]PT was, in form, somewhat similar to that between Pavic and Clancy which the High Court held to be rightly admitted in Pavic.TP^[24]PT  Making the difficult distinction which the joint judgment in that case seems to require,TP^[25]PT the admissions by the appellant to Ms Buffington were made more in the course of conversation than pursuant to an interrogation by her.

85. Secondly, this was not a case in which Ms Buffington was asked to obtain admissions from the appellant in circumstances in which he had not made them before. On the contrary she swore that he had admitted to her, while she was still working in the butcher's shop, that he had had intercourse with the complainant. So the purpose on 26 August, as it had been on the abortive attempt on 24 August, was to obtain incontrovertible confirmation of an admission already obtained in circumstances which were unexceptionable.

86. Thirdly, there could be no reason to doubt the reliability of the admissions made in the recorded conversation. Indeed, as Brennan CJ said of Clancy in Pavic,TP^[26]PT the fact that she was regarded as trustworthy by the appellant is an indicator of the reliability of his admissions.

87. And fourthly, this was not a case in which the appellant, having been earlier cautioned, had chosen not to speak to the police. He had willingly spoken to them but denied having intercourse with the complainant. If the failure to administer a caution before Ms Buffington's recorded conversation with the appellant can be said to have denied him any right, it was probably not a right to remain silent but more likely a right to continue to give an inconsistent and exculpatory account of relevant events. Indeed, in view of the reliability of the admissions and the appellant's failure to give evidence it may, at least at this stage, be described, not too inaccurately, as a right to lie.

88. All of those reasons are relevant to both the fairness and the public policy discretions.TP^[27]PT  Nor it is necessary to consider whether any of those reasons alone would have been sufficient to justify the admission of the evidence.  It is sufficient to say that, together, they plainly do.

89. WILLIAMS J:  I agree with the reasons for judgment of Davies JA and with the orders he proposes.