The Queen v Welsh[2007] QDC 74

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   Lael Welsh (the accused) is charged with a series of offences committed on Michelle Lange (the complainant) on 8, 9 April 2005. They first met in November 2004 on an internet-dating site. A relationship quickly developed between them. In February 2005 they became engaged, and in mid‑March commenced living together.  They lived together until 9 April 2005.  As a result of the incident which ended their relationship, the accused is charged with assault occasioning bodily harm, deprivation of liberty, torture, and rape. There is no doubt that something significant happened between them which caused her to leave their house on the morning of 9 April 2005.

2. [2]
   The complainant says that when they lived together she had to continually reassure the accused she loved him and was not going to leave him. She says that on the evening 8, 9 April 2005 over a period of about seven hours the accused repeatedly assaulted her, detained her in the house, and raped her.  Throughout this time, the accused was abusive, although, when she was able to shower in the morning (9 April 2005) he was tearful and asked her not to leave.

3. [3]
   The complainant formally complained to the police on 12 April 2005 (a Tuesday).  After providing the police with an account of the offences, she travelled with a police officer to the Redlands Hospital for a medical examination.  She also handed the police an apology dated 9 April 2005 written by the accused.  She then travelled to the Wynnum police station where she made a recorded telephone call to the accused.  Later on the same day the police executed a search warrant on the accused’s residence.  He was then charged with the present offences.

4. [4]
   Section 590A Code allows issues concerning the admissibility of evidence to be determined before trial.  In this application, the defence object to the prosecution’s proposed use at trial of the secretly recorded conversation between the complainant and the accused.

The issues

5. [5]
   The arguments developed by Mr Devlin SC can conveniently be broken into a number of issues.  Firstly, it is said that no inference of guilt can legitimately be drawn from the accused’s statements during the telephone conversation.  If this argument is correct, then the evidence should be excluded because it is irrelevant, or excluded on discretionary grounds because it is substantially irrelevant and at the same time potentially prejudicial.

6. [6]
   Secondly, it is said that any inference of guilt is compromised because of the form and circumstances of the conversation, and to use it against the accused at trial is unfair. This argument focuses on the reliability of any inference which may be drawn against the accused from the conversation. The other basis on which it is submitted the evidence should be excluded is that the accused’s right to silence was subverted by the telephone call, and once again, it would be unfair to use the evidence against him.

7. [7]
   The use of pretext phone calls to gather evidence against a suspect is a common investigative tool in Queensland.^[1]  In this case, the police officer used a pro forma sheet which sets out a suggested pretext call explanation when she spoke to the complainant.  Any pretext phone call, however, involves elements of deception, and an intent to obtain admissions of guilt from the suspect.  As a consequence, the use of a pretext phone call as evidence may impugn a suspect’s right to silence or otherwise be unfair.

Can an inference of guilt be drawn from the accused’s statements?

8. [8]
   The first issue to consider is whether an inference of guilt may be drawn from the accused’s statements during the telephone conversation. The defence position is that the accused’s statements are equivocal in that they are referrable either to the complainant’s allegation of rape, or to her allegation of assault (domestic violence).

9. [9]
   The accused did not expressly admit any particular conduct alleged against him, that is, he did not in terms admit he raped the complainant, or that he assaulted her. Are his responses therefore, viewed as a whole, equivocal in their meaning? The prosecution argument is that his responses impliedly accept the truth of the complainant’s accusation of rape and assault. The prosecution also rely on the argument that if the accusation of assault was true, but the accusation of rape untrue, one would expect him to deny the accusation of rape. As I interpret the complainant’s statements and questions, after the initial accusation of rape, her demand is to know why he raped her. The relevant passages appear on pp 3, 4 and 5 of the transcript of the pretext phone conversation:

“MLBut do you know why it’s over?

LWYeah I do.  I’ve made a big mistake and I just you know I think about it every day.

…

ML Lael you raped me and I’ll never ever, ever get over that.  My bruises are healing and by the end of the week they will all be gone.

LW Yeah, yeah.  That’s what I.  That’s what I know I’ve got to live with.  I know that Michelle.  I know.  And I know it hurts and uhm you know so the best thing I can do is just work with you for a little bit and make sure I let you have your, have your bit of piece and get on with your life.  I’m so sorry though, I really am and I now that words and I know that I’m the monster now, that the person you know you’ve lost.  There was never that person it was always a big lie I guess.  But I just maybe one day you know I can find a bit piece and I might even start going back to church and all the rest of the stuff.  I need to do something Michelle.  I need to do something.

MLHave you talked to anyone about it?

…

MLBut you know I will never be able to forget what you did.  Ever time I close my eyes I still hear what you say and see what you were doing.

LWYeah.

MLYou have no idea what that feels like.

LWAll I can do is just get out of your life Michelle.  I know you want me out.  And I’m doing it, I’m doing it.  I’m really so sorry hey.  Really so sorry.  I’m just, just a mess.

ML The beating was bad enough, but how could you have raped me.  How could you have done that.  You know I was your fiancée. I just can’t get my head around that.  And no matter how many times I said no and tried to push you away, you just ripped my clothes off and raped me.  (silence)  Are you crying?

LW No.

ML Yes you are.

LW No I’m not.

ML Why are you crying?

LW I hate myself Michelle.

…

ML But do you think what you did was rape, or do you think it was just in my head or do you think I’m making it up, do you think I’m exaggerating.  Like do you see why it’s so hard for me to deal with?  (silence)  Talk to me.  Ui to do.

LW What do you want me to say?  What do I say?  What’s going to fix anything Michelle.

ML It’s not going to fix anything, but it’s going to make me feel better at least you’re saying sorry and you actually mean it.

LW I am sorry Michelle.

ML Sorry for what you did.

LW I’m sorry.”

10. [10]
    The question whether he would be expected to deny the accusation of rape is itself a question of fact, and one that a jury is equipped to determine in the light of all the circumstances. If the accusation of rape was untrue, or if it was true but he wished to deny it, one would expect him to selectively deny the accusation of rape. I believe a jury is entitled, acting reasonably, to conclude the accused impliedly accepted the truth of the complainant’s accusation of rape.

11. [11]
    The argument the complainant’s accusations are correctly seen as containing at least two separate accusations (rape, domestic violence) and that his statements therefore are equivocal since they might refer to either or both of the separate accusations, may be rejected for the following reasons. The first reason is that, although on analysis, the complainant’s statements may be broken down to a number of separate accusations, what is communicated by her statements is that the main thing on her mind is the rape. Consequently a jury could infer his statements are responses to the claim of rape. The other reason is that if the rape accusation is untrue, in the circumstances, one would expect him to dispute it.

12. [12]
    There is a further point. The submissions before me proceeded on the unstated assumption that the evidence was irrelevant unless his statements could be construed as an unequivocal acceptance of the rape accusation. In fact, the indictment against the accused charges him with assault, deprivation of liberty, torture, and rape. Accordingly, if his statements can be construed as an acceptance of either an assault accusation, or of a rape accusation, or of both assault and rape, then the evidence is admissible on a trial of the charges according to its tenor.

13. [13]
    On a trial, the probable forensic use of the evidence is as corroboration.^[2]  This suggests an interesting analogy to the tests developed to assist determine whether evidence, said to be consistent both with a complainant’s evidence and a defence case, should be left to a jury as corroboration.  A practical test applied by the courts is to ask whether the evidence, despite possessing “a certain consistency with both the prosecution and defence cases”, “is, nevertheless, capable of being regarded as possessing a higher degree of consistency with one case than with the other.”^[3]  This approach is interesting as it emphasises matters of degree and the potential value of the evidence.

The unfairness direction:  some general observations

14. [14]
    The admissibility of pretext telephone conversations are usually considered within the framework of the High Court’s judgment in Swaffield^.[4].  The unfairness discretion may be exercised in circumstances in which the reliability of the evidence is compromised by the manner in which it has been obtained,^[5] or if the accused person’s right to silence has been subverted.  In this case, I am asked to exclude the evidence because of unreliability and because the accused’s right to silence was impugned.

15. [15]
    The statement that two people are speaking on equal terms for the purpose of determining whether the silence of one involves an acceptance of the truth of an allegation by the other, does not involve the idea that both are exactly equal. The complainant and the accused in this case were to my mind speaking on equal terms during their telephone conversation on 12 April 2005.  She may have enjoyed psychological advantages in knowing the call was being recorded and because she was in a protected environment, but he was unaware of these advantages.  Again, the circumstance the accused may have been at a disadvantage because of his emotional state, or even because of moral considerations^[6] does not  mean it is unfair to use his words against him in a criminal trial.  What is important is that at the time of the telephone call their relationship did not involve any imbalance of power that would inhibit him from denying or disputing an untrue accusation he had raped her three days earlier and that his statements were freely made (voluntary).

16. [16]
    The unfairness and public policy discretions involve the exclusion of a voluntary and relevant confessional statement or admission by an accused. Although the exclusionary discretions are framed in very general language, their actual scope of operation is confined to circumstances in which the reception of a voluntary and relevant confessional statement or admission by an accused jeopardises his right to a fair trial. The observation made by the court in Lee^[7] that “the protection afforded by the rule that the statement must be voluntary goes so far that it is only reasonable to require that some substantial reason should be shown to justify a discretionary rejection of a voluntary admission” remains true today.

17. [17]
    The only other general observations I wish to make at this point concern the right to silence. The right to silence, like the common law rule excluding confessional statements not shown to be voluntarily made, is designed to protect the individual from the use of coercion by the State. Conversations with friends and others, by their nature voluntary, are outside the ambit of the right to silence. Accordingly, if the friend or other person later discloses the conversation to the police, the right to silence is not breached by the disclosure, and the unfairness discretion is not enlivened to suppress any admission by the accused during the conversation. Logically, neither a surreptitious recording of a conversation, nor an antecedent intention to disclose the conversation, provided the State is not involved, involves a violation of the right to silence. The test developed in the Canadian cases,^[8] and which in Swaffield were integrated into the unfairness discretion, is calculated to prevent the State subverting an accused’s right to silence by the use of friends or others in stage‑managed situations.  The test developed has built into it a number of discriminations:  whether the friend or other person should be regarded as an agent of the State at the time of the conversation, and whether the friend or other person elicited the admissions from the accused.  A concept such as elicitation is necessary because without a causal link between the conduct of the State agent^[9] and the volunteering of any admission or statement by the accused, the right to silence is not breached.

18. [18]
    Finally, I note the application of the test may involve matters of degree, thus Toohey, Gaudron, and Gummow JJ in Swaffield say the test “… looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned” (para 91), and “… the application of (the Canadian test) depends on the extent to which any admission was elicited” (para 97).  Ultimately, the application of the test involves a judgment about the extent to which the accused’s rights and privileges have been impugned.

The unfairness discretion (reliability)

19. [19]
    A jury, in my view, would be entitled to draw inferences against the accused from both his positive statements and his failure to answer the complainant’s accusations of rape. No unfairness emerges merely from the fact that she accused him of rape. On her evidence, she had been brutally raped by him only three days earlier, and it is not surprising (assuming for the moment her accusation is true) that she would accuse him of rape and demand an explanation. I am also satisfied that his emotional state, evident at times during the conversation, does not mean that the conversation, or more to the point, any inferences against the accused that may be drawn from the conversation, should be removed from the jury’s consideration^[10] by a discretionary rejection of the evidence.

20. [20]
    These conclusions also mean that the conditions for an exercise of the residual discretion to exclude evidence of limited probative value but of significant prejudicial effect does not arise.

The unfairness discretion (the right to silence)

21. [21]
    The Canadian tests imported into the unfairness discretion involve two separate inquiries: is the complainant an agent of the State; and, if she is, did she elicit the statement or admission from the accused?

22. [22]
    Is the complainant an agent of the State for the purposes of the Canadian tests? The test adopted in Broyles is this:  would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the State or its agents?  The court described the test as a simple test.  If simple, it is deceptively simple as it involves weighing what actually happened against what might have happened.  In this case, the complainant confirmed in evidence she did not want to contact the accused.  But for the police officer’s suggestion, she is unlikely to have contacted the accused.  During her evidence she said she was aware the conversation was to be recorded and might be able to be used as evidence.  She also said, however, that she was not coached on what to say before the phone call.  I note she said “… I guess I had my own reasons for wanting to make that telephone call” and “… at the time I was concerned about how could you do this to me?  Why have you done this to me?”  In terms of the test, the complainant is to be regarded as a State agent, although an element of artificiality exists in the classification in view of her comments that she had her own reasons for wanting to make the telephone call, and the circumstance that had she not gone to the police she may have had a similar exchange with the accused on the telephone.

Did the complainant elicit the accused’s statements?

23. [23]
    The test of elicitation developed in Broyles is intended to discriminate between conduct (on the part of a State agent) which subverts the right to silence, and conduct which does not.  The test does that by examining the causal relationship between the conduct of the State agent and the statements or admissions made by the accused, remembering always that the right to silence is not, as was said in Broyles, intended to prevent individuals from incriminating themselves per se.  In Broyles, the test is formulated as follows:

“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 eth accused was morel likely to talk?”

24. [24]
    The range of relevant factors in this case include:

1. The details of the relationship between the complainant and the accused. The complainant’s allegation of rape and ill-treatment by the accused over several hours on the evening of 8/9 April 2005 is part of the relevant relationship.
2. The fact that after the complainant was able to leave the home in which she lived with the accused on 9 April 2005, that he left a letter of apology addressed to her in her parent’s letter box.
3. And, that after the complainant spoke to the police on 12 April 2005, she, on the same day, gave the police the letter of apology written by the accused.
4. That he repeatedly attempted to contact her by telephone, and by SMS messages sent to her mobile phone. The attempts to contact her included a call to her on her mobile phone while the complainant was with the investigating police officer on 12 April 2005.
5. A review of the complainant’s mobile phone mailbox on 12 April 2005 showed that the accused sent her SMS messages which were at times apologetic^[11] and at times irritated.^[12] The complainant’s outbox contained one message to the accused. In the message she stated their relationship was over, and accused him of rape (“U raped me. My bruises will fade in a wk but not the emotional scars …”).
6. The police later on 12 April 2005 executed a search warrant at the accused’s house. When he was formally questioned by the police he declined to answer any questions, that is, he exercised his right to silence.

25. [25]
    Mr Devlin SC submitted the exchange between the complainant and the accused was the functional equivalent of an interrogation.  In terms of the test, the question is whether the complainant conducted her part of the conversation as someone in her position would ordinarily have done.  If the answer to this question is yes, presumably the exchange will not be considered the functional equivalent of an interrogation.  But what if the exchange to any impartial reader is the functional equivalent of an interrogation?  And, how is the test to be applied to a rape victim?  Would a rape victim not be expected, in some circumstances, to confront her alleged rapist?

26. [26]
    When the police officer raised the possibility of recording a phone conversation with the accused about the incident, the complainant obviously understood that any admission by the accused would be available to the police as evidence. In evidence she also said that she “had her own reasons for wanting to make that telephone call.” And, “At the time I was concerned about how could you do this to me? Why have you done this to me?” In the recorded conversation, after they agreed she would remove her property on the weekend, she asked him if he knew “why it’s over”, moments afterwards she accused him of rape. Her accusation was in terms (“Lael, you raped me and I’ll never ever, ever get over that …”) that are reminiscent her earlier SMS message (“ … U raped me. My bruises will fade in a wk but not the emotional scars …”). The SMS message was sent before the involvement of the police. As I interpret her evidence and statements, she wanted an explanation for the breach of trust involved in the rape she alleged. I think it probable (but not certain) that, if, before the involvement of the police, or in the absence of any police involvement, she had spoken to him, that a somewhat similar conversation would have taken place between them. If such a conversation had occurred before or in the absence of any police involvement, the use of any statement by the accused would not entail a breach of his right to silence.

27. [27]
    This consideration leads to the question whether the action of the investigating police officer in asking the complainant to participate in a pretext phone call subverted the accused’s procedural rights and privileges. This is a relevant question to ask, because in some cases, although the other aspects of the Canadian tests may not point to an exclusion of the conversation, it may be clear the accused’s right to silence has been subverted by the fact the phone call was made.

28. [28]
    The relevant considerations on this aspect are these. The complainant saw the investigating police officer on 12 April 2005.  On that day the police officer arranged for a medical examination of the complainant.  The letter of apology from the accused was also retrieved and handed to the investigating police officer.  The police officer also knew the accused was attempting to contact the complainant by phone (one phone call from the accused was received in the presence of the police officer).  The letter of apology is equivocal as the “wrong” for which apology is made is not specified.  In this case, the accused had not yet been questioned and the police were still gathering evidence.  A written apology by an accused for the commission of an offence alleged may be important to the investigating authorities, and in the event of a prosecution, of great probative value on trial.  If an apology, voluntarily made by an accused, is genuinely equivocal, it is not unreasonable for the investigating police to endeavour to clarify the true meaning of the apology.^[13]  The investigating police officer, in organising the recorded telephone call, apparently followed a protocol followed by the police.  One of the documents tendered was a “pretext call explanation” which contained a suggested wording for the pretext call explanation and a suggested wording for the handover of the telephone to the pretext caller.  In all the circumstances, I do not think the investigating police officer’s role in instigating the recorded telephone call involved any impropriety on her part, and no impropriety that should lead to the discretionary rejection of the evidence.

29. [29]
    The second set of factors in the Canadian test concern the nature of the relationship between the State agent and the accused. Senior counsel submitted the accused was in a vulnerable state following the breakdown of their relationship. The accused might, it was suggested, be liable or vulnerable to the use of extravagant language and to manipulation by the complainant. As I pointed out earlier, a statement that two people are speaking on equal terms for the purpose of drawing an inference from a failure of one to deny an accusation by the other does not mean that the two are equal in all respects. In this case, the complainant knew the conversation was being recorded and the accused did not. The complainant may also have felt supported emotionally by the fact that she was telephoning from a police station. These advantages presumably exist in all cases where a pretext call is made by a complainant from a police station. If one listens to the tape, it is clear the accused became distressed at times during the call. It is not unusual for an accused to become distressed or upset during the course of confession. Nor, for that matter, is it unusual for a witness in a criminal trial to become distressed when testifying. The fact the accused was distressed at times during the telephone conversation is relevant to the reliability of any inference the jury may be invited to draw from his statements during the conversation. What is important within the test is not whether he was distressed at times, or even whether he was emotionally “vulnerable” to manipulation, but whether he was in fact manipulated in some way affecting his right to silence. As I interpret the conversation, after a brief discussion about when she would collect her property from the house, he commented that he realised “there’s no more of anything and communications not happening”, she responded by asking him if he knew why the relationship was over, and then, shortly afterwards accused him of rape. Her accusation of rape, and his apology effectively repeat his earlier written apology and her earlier SMS accusation of rape. The balance of the exchange between them is essentially a repetition and elaboration of the same accusation and apology.

30. [30]
    In answering the questions posed in the Canadian test in many cases the conclusion will turn on matters of degree. In this case the form of the exchange was interrogative. Looking more deeply at the exchange between them what she wanted to know is why he raped her. She was not, in other words, seeking an admission of rape from him, but seeking an explanation for his conduct. The reason she was not seeking an admission of rape is because in her understanding he had already made that admission in his written apology and in his earlier SMS messages that day^[14]. In these circumstances, despite the form of the exchange, I am satisfied the complainant did not elicit any relevant inference of guilt that may be drawn from the telephone conversation, and that his right to silence was not impugned.

31. [31]
    The conclusions I have reached mean that the application to exclude the evidence is refused.