SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  This appeal against conviction must be dismissed for the reasons given by Holmes JA.

2. HOLMES JA:  The appellant appeals against his conviction after a trial of one count of indecent treatment of a child under 12 years on the grounds that a recorded telephone conversation between him and the complainant (the “pretext call”) ought not to have been admitted as evidence against him; or, alternatively, that the learned trial judge failed properly to direct the jury as to its use; and that the trial judge erred in failing to give a Longman^[1] direction.

The evidence

3. The complainant, K, was 14 when she was interviewed by police officers, and 15 when she gave evidence at the pre-trial hearing.  In the interview she said that when she was eight or nine years old, the appellant, who was a former work colleague of her mother’s, had stayed at her house.  She obeyed his instruction to meet him at night in his bedroom after her mother and her mother’s de facto husband had gone to sleep.  When she entered, he took her hand, pulled her onto the bed, removed her underpants and licked her vaginal area.  Afterwards, he told her not to tell her mother because he would “get in lots of trouble”. 

4. About a fortnight after being interviewed, K, at the instigation of the interviewing police officers, telephoned the appellant in a recorded call. Relevant portions of the conversation are as follows:

“…

KMmm, you remember that night when you came up and stayed up here with me and Mum?

DCWas it--

KRemember when, after we played Monopoly, you wanted me to go into the room with you?

DCGo into the room with ya?

KYeah, and you wanted to lick me out, which you did.

DCMmm.  Why you bringing that up now?

KI dunno, just wanted to know if it was going to happen again?

DCOh, what you interested in that?

KNot really, I was just asking, just wondering why you did it, cause you knew I was so young?

DCIs there someone with you there or?

KNo, Mum’s gone for a bike ride.  Just me at home being bored and I just wanted to know what was happening.

DCOh, um, yeah that was um, that was, that was a while ago that.

KYeah.

DCDoes that, does that upset you?

KSometimes, cause I’m really just starting to think about it now that I’m older.

DCOh and it was something, somethings um, especially if someones a bit intoxicated as well somethings aren’t; aren’t supposed to be.  Thing, things just happened and um, I mean, I guess, I guess um spur of the moment sort of thing it, it, yeah.

KYou weren’t really drunk

DCI was still intoxicated from the night before.  But, yeah you should, maybe we can get together and talk about it [K] not over the phone.  If, if it’s a, I’m glad you actually have, you know, if it has upset you that you, ya know that we can talk; we, you know you’re able to talk about it with me, that’s really good.

KYeah.

DCUm, yeah if, if, if you want to come down and hang out and um, yeah talk about it.

KYeah but I just wanna know if it’s gunna happen again?

DCNo.

KLike what happened that night and about how you licked me out and everything.

DCNo well that’s, that’s, that’s not the, that’s not the go, I’m a bit, bit, just a bit, a bit um confused ah [K] that you’re, you’re ringing me up at this time and asking but if you want to get together and, and, and chat about it but um, where are you?

...

DCMmm, well [K] I’m really, really sorry you feel, felt like that and, and ya know like I, I know you like a daughter and um ya know, like I, I love you heaps in, in that retrospect and, and you know, some things weren’t supposed to be.

KYeah.

DCBut um, as long as you don’t, as long you, you, you know how do you feel?  I mean you, you, don’t let yourself ya know, feel bad about whatever happened, I mean things happen, you know, we can’t work out why but sometimes things happen for a reason that we don’t understand and then I don’t understand um, I look back at certain things in my life and, and sort of like can’t figure out why things happened the way they did but I think they grow you as a person and if you’re able to do what you do and discuss it with, with ya know me, you um, yeah, can get some sort of an understanding.

...

DCOh, oh fair enough, have you spoke about this with anyone else?

KNah.

DCOkay.  What’s it, how does it make you feel?  Like what’s it?

KMakes me feel like, like fucking I get, fucking older guys fucking that have to feel like they have to do shit with fucking a little girl.

CDYou feel like all guys have to do stuff to a little girl?

KMmm, fuckin’ it feels pretty wrong, the way that I feel now, that fuckin’ someone how many years older than me had to do that to me.

DCYeah, I, I think you um, yeah, if, if you look into things ya know a certain way ya know you can always make yourself feel bad about something where as, ya know, like you can, you can make yourself be feeling bad about anything you want and I think people can jump to the wrong conclusions and, and feel bad for, for, for whatever reason and, and sort of like blame the situation or think of a situation that’s why you feel bad but as ya, as ya, ya, young, ya growing up, ya, ya feeling, ya feeling um bad about all sorts of things and you’re starting to realise that things aren’t as exciting in life as you would possibly want it to be.  I think you, you shouldn’t hold onto stuff that, that’s gunna make you feel sad.  I mean--

KWell what else am I supposed to do with it?

DCWell I mean, I, I wouldn’t, it depends on the way you look at something [K], that, that makes you feel bad.  Like I’m, I’m trying, I’m struggling with that sort of thing at the moment, I’m, I’m struggling with, with bits and pieces, ya know of stuff that makes me feel bad at the moment and I’ve actually realised a lot of it’s got to do with um how much exercise you get and, and, and the, the, the diet and the way you eat and all that sort of thing actually affects your kidneys, makes your kidneys release toxins into your body believe it or not which actually makes you feel bad about everything.  It makes the situation, any situation, a lot of situations, it makes it, makes it look, you know, feel, feel bad and you shouldn’t feel bad about that [K], ya know like--

KWell how else am I supposed to feel, be all lovey dovey and happy about it?

DCWell, I dunno if you should be lovey dovey and happy about it, ya know it’s, it’s, it’s um, ya know; it’s something that’s um, yeah, obviously on your mind but you need to, ya know, well it’s, it’s good that you spoke to me about it and, and, and that’s, that’s really good [K].  I think that gets it, gets it, ya know off ya, off, off your mind and I’m glad that you, you actually have.  But honestly um, I’ve sort of like looked back at that, that night as a, as a, as a dream, as if it didn’t really happen like the next morning and that, I sort of like yeah, it was pretty, pretty bizarre thing for, for, to happen I think. I--

KWhat did you get out of it?

DCWell nothing really, I mean it’s, it’s, I’m not in, ya know I’ve, I’ve.  That’s what I couldn’t work out, I mean it’s sort of like, ya know you come in and, and into my room at that time--

KCause you asked me to.

DCand one thing lead to another

KBecause I was so young

DCWell, don’t look at it like that I mean if it’s, we, we discussed it and you come in, I mean you were going to come in for a cuddle whatever the case may be at, I looked at it the next day.  I’m not into that, I’m not, I mean, I can’t see the point in that sort of stuff, I, I’m not interested in, in, in young people, I, I just don’t understand it, I guess, it was there and it just happened.  I mean you’ve been with people before and you look at it the next day and go why was I with him ya know like, that’s just so not my type, it’s just sort of like that was so wrong, ya know you’ve, you’ve would’ve realised that yourself, ya know, so.  I, that was, that was the thing I mean I can’t understand it, I mean I’m, I’m into, into adults, I mean I, kids, kids have got nothing that, to offer me, I’ve, not interested in, little kids, it’s, it’s ya know I’ve got girlfriends and all that sort of thing, I’m just not interested, ya know, as you can probably imagine.  So you sort of like look at it, ya know the next day and like what the, ya know, what was going on and um and that’s, that’s something that’s it’s, it’s pretty well freaked me out as well and it’s sort of like as you’re talking about it ya know, I spent a lot of time thinking about stuff myself and it pretty well freaked me out that, that something like that could happen, it’s sort of like yeah, really spun me, out of my tree.  But um yeah, so I’m glad you’re actually, able to talk to me about it because I, you know, I, I’m glad to talk about it myself, really glad to talk about it, what, what, what happened, cause it’s, it’s sort of like, yeah I’ve, I’ve kept it inside me as well and it’s, it’s, well it’s just weird, it’s just really bizarre, spins me out of my tree, but um yeah.

…”

5. K said that she was not told what she should say to the appellant, and no-one communicated with her during the course of the call. One of the police officers who interviewed her and arranged the pretext call gave evidence that she and her fellow officer had gone through a “pretext explanation” with K. (What that entailed was not explored in evidence.) They had shown K how to use the equipment and then left the room, shutting the door and remaining outside until K emerged, having completed her call.

6. K’s mother said in evidence that in February 2009, her daughter disclosed some conduct by the mother’s de facto husband which led her to contact the police. After she had done so, K went on to tell her that the appellant had told her to come to his room after her mother and her mother’s de facto husband had gone to bed.  Her mother asked what had happened.  She responded,

“He licked me out.”

7. The appellant gave evidence at the trial. He said that on a visit to K’s mother he had woken briefly one night to see someone with dark hair lying down beside him. Because he was sleepy and intoxicated, he took it to be his girlfriend who was, in fact, in Sydney.  When K made the telephone call to him in February 2009, he did not know what to think.  He understood her to be referring to that night and entertained the possibility that something untoward might have happened then.  During the telephone call, he was trying to establish what K was talking about and why she was making the accusation.  It was only after the telephone call was over, and he had the opportunity to collect his thoughts, that he was convinced what she had suggested was impossible.  He had not performed oral sex on the girl.

The admission of the pretext call

8. The appellant argued that the admission of the recording of the telephone conversation, although not objected to at trial, had led to a miscarriage of justice. K was an “agent of the State” in the expression adopted by the High Court in R v Swaffield,^[2] and she had elicited the statements by the appellant said to constitute admissions.  Reliance was placed on the considerations set out by the Supreme Court of Canada in Queen v Broyles,^[3] which met with the approval of the High Court in Swaffield:^[4]

“The first set of factors concerns the nature of the exchange between the accused and the state agent.  Did the state agent actively seek out information such that the exchange could be characterised as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done?  The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.

The second set of factors concerns the nature of the relationship between the state agent and the accused.  Did the state agent exploit any special characteristics of the relationship to extract the statement?  Was there a relationship of trust between the state agent and the accused?  Was the accused obligated or vulnerable to the state agent?  Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?”

9. In the present case, the appellant said, the admissions were the result of specific questions and interrogation by K. She had set out, in a role she would not ordinarily have taken but for police urging, to get an admission from the appellant, who had previously made none. Because she did not reveal the purpose of her telephone call, using a ruse – that she was calling to investigate the possibility of a visit – the appellant was put at a disadvantage. The responses relied on by the Crown as admissions were the product of leading questions amounting to a functional interrogation. It should also be taken into account that the conversation had produced no explicit admission by the appellant; rather, it left open an inference of guilt because of his manner of responding.

10. It may be accepted that K, acting as she was at the instigation of the police officers in making the telephone call, was an “agent of the State”. This was not a case, however, in which the conversation was arranged in order to overcome a previously exercised right of silence by the appellant. In terms of the factors identified in Broyles, there was nothing in the relationship between the appellant and K which would call for exercise of the discretion in favour of exclusion; he was in no sense vulnerable to her.  The conversation itself did not amount to an interrogation.  There was very little by way of direct questioning by K.  Rather, she gave prompts in her references to the events of the night in question, to which the appellant responded, apparently freely and at length; indeed, he said he was “really glad to talk about it”.  The appellant felt at liberty to question K on a number of occasions, taking something of a counselling role.  It is clear, when one listens to the recording, that the appellant was not overborne or confused, although he was mildly wary at different points in the conversation.

11. While the appellant made no explicit admissions, his responses, in the context of K having made the specific allegation that he had “lick[ed] [her] out”,

“why you bringing that up now?”

“oh, what you interested in that?”

“… that was a while ago … .”

“things just happened ... spur of the moment sort of thing … .”

“I’ve sort of like looked back at that ... night as a ... dream, as if it didn’t really happen like the next morning and that ... it was pretty, pretty, bizarre thing ... to happen”. 

“… that was so wrong ... I can’t understand it, I mean I'm ... into adults ... kids have got nothing ... to offer me… .”

could plainly be regarded as tacit admissions to the conduct of which he was accused.  I do not consider, had the learned trial judge been asked to exercise her discretion to exclude the evidence, that she would have been obliged, in these circumstances, to have done so.  Its admission has not resulted in any miscarriage of justice. 

The direction as to the use of the pretext call recording

12. Neither counsel at trial sought any particular direction about the use of the pretext recording. The learned judge directed the jury as follows:

“So in relation to the phone call then, you have to decide exactly what was said, obviously, and whether it amounted to an admission that he did, in fact, indecently deal with her in the way that the complainant has described.

Remember, of course, that the accused has given evidence under oath, and he’s given an explanation of why he spoke to the complainant and his comments to the complainant.  Does that make a difference to you?  Does that provide an innocent explanation for the conversation?”

The judge reprised parts of the conversation which the Crown relied on as admissions and then summarised the evidence that the appellant had given about it, with some references to the transcript.  Having done so, her Honour reminded the jury that the accused was under no obligation to give evidence and had assumed no burden of proof. 

13. The appellant argued that the learned judge had wrongly shifted the onus to him by asking whether his evidence provided “an innocent explanation”, an error which was not corrected by her later direction as to the absence of any burden on him. The jury ought also have been told that before acting on the parts of the recording relied on by the Crown as admissions, it was necessary that they be satisfied that they were truthful and accurate,^[5] and more particularly, in accordance with Barca v The Queen,^[6] that the appellant had, by his “speech, silence or conduct”,^[7] admitted the truth of what was said to him.  As to the latter, it was not necessary merely to tell the jury what the law was, but to relate it to the facts of the case.^[8] 

14. The phrase “amounted to an admission” would not, the appellant said, have the meaning for jurors that it did for lawyers; they should have been told specifically that they should act on the responses only if satisfied that they amounted to an acceptance of the truth of what was asserted. That was particularly so where it was possible that the appellant’s responses indicated not agreement to K’s specific allegations, but a more general acknowledgment of wrongdoing in bringing her into his bedroom; a consciousness of guilt of the kind relied on by the Crown in R v ON,^[9] which might be referable to an awareness of inappropriate conduct rather than guilt of the offence charged.

15. I do not think that the learned judge’s reference to considering whether the appellant’s evidence provided an innocent explanation for the conversation amounted to any shifting of the onus to the appellant. It was, in context, no more than a direction to the jury to consider the appellant’s evidence which was, if accepted, capable of explaining the conversation. It was followed by a clear direction about where the onus lay, in which the trial judge pointed out that a rejection of the defence evidence would still leave the jury in the position of having to consider whether it was satisfied that the prosecution had proved the offence.

16. This was not a case like R v ON in which the prosecutor relied on the conversation as evidence of consciousness of guilt without identifying statements constituting admissions.  Nor was the jury in any doubt as to which statements the Crown was characterising as admissions; immediately after the directions set out at paragraph 11 above, the learned judge went on to remind them of those parts of the conversation.

17. I do not accept that the members of the jury would have had any difficulty, having been reminded of the questions and answers relied on, in understanding what her Honour meant when she told them that they had to decide whether what was said amounted to an admission. It was a more succinct way of saying that they had to be satisfied

“that the accused has by his speech, silence or conduct admitted [the] truth [of the statements].”^[10]

It was inherent in the direction that the jury must be satisfied that what was said was an acceptance, based in reality, of what K alleged.  No error has been shown in her directions in this regard.

The failure to give a Longman direction

18. Before summing up, the learned trial judge asked whether counsel for the appellant sought a Longman direction dealing with K’s delay in complaining and its consequences.  Counsel disavowed any need for such a direction, observing that both appellant and complainant were focussed on one incident, albeit giving different versions of it, and suggesting, instead, that a more general direction of the kind discussed in Robinson,^[11] dealing with particular features of the case – the delay, K’s age and a false allegation K had made that her mother had punched her – should be given.

19. Having pointed out that the Crown case rested heavily on K, the learned judge gave the following direction:

“So your assessment of her is most important.  You’ll need to scrutinise her evidence with great care before you can arrive at a conclusion of guilt, and you need to look at a number of factors when you’re scrutinising her evidence.  For example, look at the delay between the alleged offence and the complaint, has it deprived the accused of an opportunity to properly examine the complainant about the circumstances of the offence?  Has it affected her memory? Of course, that factor is tempered somewhat by the fact that the accused says that he knew the night of which she spoke.  In fact, he remembered having this dream.  Look at the age of the complainant, she was very young at the time that she says this thing happened, and there’s some suggestion that she was having troubles with Ray as well, and Ray was living at the house around this time.

Look at her, I called it her troubles, around this time.  The difficulties she was having at school and those sorts of things, does that make any difference to your assessment of her credibility or not?  It’s a matter for you.

Also look at this question of what the defence say are false allegations made to the counsellor about her mother.  Now, in relation to that, you’ll remember when she was cross-examined, she was asked whether she’d said anything to the counsellor about her mother, and she said that she had never said that her mother bashed her.  That she might have said that her mother verbally abused her, but her mother had only ever slapped her twice in her whole life, and that was not without good cause, effectively.”

Her Honour went on to remind the jury of some further aspects of the evidence concerning what K had said about her mother’s behaviour to her.

20. Counsel for the appellant here contended that a Longman direction was required.  The trial judge should have warned the jury that it would be dangerous to convict on K’s evidence alone because of the disadvantage arising from the delay in complaint, in diminishing the appellant’s capacity to test K’s evidence and to assemble any medical or DNA evidence in response. 

21. It should be noted immediately that K’s evidence lacked corroboration only if the appellant’s responses in the recorded telephone call were not accepted as admissions. In any event, the jury was reminded of the delay in complaint and told to consider whether it had deprived the appellant of the opportunity to properly examine K about the circumstances of the offence. There seems little prospect, given the nature of the assault, that had there been immediate complaint a medical examination of K would have yielded any evidence. DNA testing might have been productive, but that was not a suggestion raised at the trial; in those circumstances I do not think it was incumbent on the learned judge to raise the prospect.  The appellant was able, as his counsel at trial conceded, to identify the night in question so there is no question of disadvantage in that sense.

22. The direction given, it seems to me, properly addressed the issues which were actually raised as requiring caution when the jury considered K’s evidence: the effects of the delay on memory (hers and that of the appellant), her age at the time, the domestic context in which she was living and the possible false allegations made by her about her mother. It was appropriate to the circumstances of the case and manifests no error.

Order

23. I would dismiss the appeal against conviction.

24. DAUBNEY J:  I respectfully agree with the reasons for judgment of Holmes JA and with the order she proposes.