R v Anderson[2008] QDC 137

DISTRICT COURT OF QUEENSLAND

1. [1]
   There is an indictment before the court charging the defendant with seven offences. The complainant in each charge is the same person. The complainant and the defendant were together in a relationship for some time.

2. [2]
   The defendant makes application to have excluded from the evidence to be used at trial, the conversation recorded in a pretext telephone call between the defendant and the complainant on 16 May 2006.

3. [3]
   In May 2006 the defendant was charged with the offence of assault occasioning bodily harm in respect of the same complainant.

4. [4]
   In relation to this charge, on 12 May 2006 the defendant appeared before the Magistrates Court Brisbane and he was granted bail to appear again in July 2006. The bail conditions included a requirement that the defendant have no contact “whatsoever either directly or indirectly” with the complainant “except through his legal representation”.

5. [5]
   On 16 May 2006 the same complainant made a further complaint against the defendant, a complaint of rape. Plainclothes Senior Constable Smith of Ferny Grove Criminal Investigation Branch was contacted by an officer at The Gap police station. Senior Constable Smith and his partner drove to The Gap police station, picked up the complainant, and brought her back to the Ferny Grove police station. These officers had not been involved with the defendant or the complainant prior to this occasion.

6. [6]
   Count 2 on the indictment is an offence of rape said to have been committed on or about 27 January 2006. Count 1 on the indictment is an offence of assault occasioning bodily harm said to have been committed on or about 27 January 2006. Count 3 is an offence of deprivation of liberty said to have been committed on or about 27 January 2006. All three offences appear to relate to the one occasion.

7. [7]
   Senior Constable Smith made arrangements for the complainant to conduct a pretext telephone conversation with the defendant in relation to the alleged offending said to have been committed in January 2006. This conversation was duly recorded.

8. [8]
   In the course of argument in this application, I raised whether, in light of the bail conditions, there was an illegality in the police having arranged for the complainant to contact the defendant for the purpose of the pretext telephone call. In consequence, Senior Constable Smith was called by the Crown to give evidence in these proceedings.

9. [9]
   The effect of Senior Constable Smith’s evidence was that he had the means of knowing, prior to arranging the pretext call, that the no‑contact bail condition existed, but that he did not know of it until later that day when taking a statement from the complainant. Importantly, Senior Constable Smith stated that if he had been aware of the no‑contact bail condition prior to having the complainant conduct the pretext call, he would not have caused the call to be made.

10. [10]
    I accept Senior Constable Smith’s evidence. I would not exclude the pretext call conversation on the basis that the evidence was obtained illegally. In view of the conclusion that I have come to in this application, it is unnecessary for me to give reasons in respect of this aspect.

11. [11]
    As noted above, some few days prior to the making of the pretext telephone call, the defendant was charged with having assaulted the complainant. I infer that the charge resulted from a complaint made by the complainant.

12. [12]
    I listened to the audio cassette of the pretext telephone call when it was played in court during the hearing of the application. However, since then, I have had the advantage of listening to the recording a number of times. The transcript of the conversation is incomplete and inaccurate. It is also important to hear the conversation to appreciate the tone and flow of the conversation.

13. [13]
    After some initial conversation between the defendant and the complainant, the complainant, sounding as if she is crying, asked the defendant if he feels badly about everything. The defendant, also sounding as if he is crying, replied that he does and told the complainant that he was “so sorry”. The conversation between the defendant and the complainant is then as follows (I do not set out the whole of the conversation):

“COMPLAINANT:   Can you just tell me something please.

DEFENDANT:   What?

COMPLAINANT:   Do you remember what you did in January?

DEFENDANT:   What?

COMPLAINANT:   When you like hit me and stuff.

DEFENDANT:   Yeah.

COMPLAINANT:   I just want you to tell me that you remember what you did.

DEFENDANT:   Yeah I do.

COMPLAINANT:   Do you remember having sex with me?

DEFENDANT:   Why, are you doing something?

COMPLAINANT:   What?

DEFENDANT:   Have you done something?

COMPLAINANT:   No.  I just want you to apologise to me about everything …

DEFENDANT:   I am.

COMPLAINANT:   … and I won’t do it.

DEFENDANT:   I just want to say it in person …

COMPLAINANT:   No. Please just tell me now, I can’t handle it.

DEFENDANT:   Yes, I do, I do.

COMPLAINANT:   You are putting me through hell.

DEFENDANT:   Yes. I am putting myself through hell.

COMPLAINANT:   Well then just tell me that you remember what you did.

DEFENDANT:   Yes I do. I am so sorry.

COMPLAINANT:   Do you remember having sex with me when I told you not to?

DEFENDANT:   Yes.

COMPLAINANT:   What?

DEFENDANT:   Yes.

COMPLAINANT:   After you bashed me up and then you had sex with me.

DEFENDANT:   Where are you?

COMPLAINANT:   I am at home.

DEFENDANT:   I will come up … (the exact words are not discernable but the defendant stated to the effect that he would come up to see the complainant on his break).

COMPLAINANT:   Well, just tell me that you remember doing it.

DEFENDANT:   Yes I do. I am so sorry.

COMPLAINANT:   Why did you do that?

DEFENDANT:   Who knows.

COMPLAINANT:   To calm me down?

DEFENDANT:   Yes.

COMPLAINANT:   You said it was to calm me down.

DEFENDANT:   Yes.

COMPLAINANT:   Did you think it calmed me down?

DEFENDANT:   No. It shocked you, like scared you.

COMPLAINANT:   Because you were having sex with me when I’m asking you not to.

DEFENDANT:   No. I suppose.

COMPLAINANT:   Yeah that, you remember doing that though don’t you?

DEFENDANT:   Do you want me to come with you now.

COMPLAINANT:   No. Just tell me. I need to hear this from you.

DEFENDANT:   Why?

COMPLAINANT:   Because I do.

DEFENDANT:   To use as evidence.

COMPLAINANT:   No. I just want to hear it from you.

DEFENDANT:   Yes I do (unintelligible).

…”

14. [14]
    Section 10 of the Criminal Law Amendment Act 1894 provides:

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

15. [15]
    In my view, in the circumstances of this case, the complainant is clearly “a person in authority” when the conversation took place.

16. [16]
    In R v Burt [2000] 1 Qd R 28, the Court of Appeal cited the following passage from R v Dixon^[1]:

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

17. [17]
    White J, with whom the other members of the court agreed, stated in Burt at para 45:

“Whilst there is no doubt that a complainant in a sexual prosecution may be characterised a person in authority, the circumstances of each case must be examined with some care to avoid elevating that person to a role which, in truth, that person does not fill. It is the impression upon the mind of the appellant which is the governing factor …”

18. [18]
    In Burt, White J determined that there was nothing in the fairly guarded responses by the appellant in that case which suggested that “he had any inkling or apprehension that his daughter was a person who might put ‘the wheels of prosecution’ in motion”.

19. [19]
    An entirely different situation exists in this case. Whilst the defendant has not given evidence in this application, the known circumstances leading up to the pretext telephone call and the content of the call, make it unnecessary for him to have done so. In my view, the defendant, and any reasonable person in the position of the defendant, would have perceived the complainant, at the time of the telephone conversation, to be a person well capable of putting the wheels of prosecution in motion. The complainant had demonstrated that she was capable of causing a prosecution to commence against the defendant. She had caused his arrest on the offence of assault occasioning bodily harm only days earlier.

20. [20]
    As soon as the complainant asked if he remembered having sex with her (in January), the defendant responded:

“Why, are you doing something?”…“Have you done something?”

In context, it is plain that the defendant was asking if the complainant was in the process of making a complaint to police in relation to a sexual offence. The content of the conversation evidences the defendant’s perception that the complainant was capable of commencing a prosecution against him in relation to a sexual offence.

21. [21]
    The passage in the conversation in bold above discloses an implied threat or a promise by the complainant to the defendant. In context, the passage in bold can only be read as a promise by the complainant that if the defendant apologised to her about everything, she would not complain to the police about a sexual offence (“and I won’t do it”). This promise is also an implied threat: if the defendant did not apologise for everything, the complainant would complain to police.

22. [22]
    Section 10 of the Criminal Law Amendment Act provides that every confession made after a threat or promise by a person in authority shall be deemed to have been induced by the threat or promise unless the contrary is shown. There is nothing in the material which shows that the threat or promise did not induce the confession.

23. [23]
    On the contrary, the flow of the conversation strongly suggests that the threat or promise did induce the confession. Immediately after having been asked whether he remembered having sex with the complainant, the defendant was guarded and non-responsive, wanting to know if the complainant was “doing something”. The threat or promise was then made. It was only shortly after the threat or promise was made that the complainant again asked if the defendant remembered having sex (when told not to) and the defendant then made the confession. It is difficult to conclude other than that the threat or promise induced the confession. The complainant’s insistence that the defendant “just” tell her that he remembers having sex with her when told not to, must be seen as the expression or form of the apology required by the complainant of the defendant. It was clearly in the defendant’s interests to try to placate the complainant by telling her that which she wished to hear.

24. [24]
    In the circumstances, it is unnecessary to make a determination in relation to the application for discretionary exclusion of the evidence. However, it is noted that, even if the complainant were not a person in authority, the complainant’s conversation in the pretext call is concerning. Whilst all pretext telephone conversations are necessarily founded on a misrepresentation to a defendant as to the nature and purpose of the conversation, the complainant’s conversation in this case involved direct lies to the defendant that she was not complaining to police about a sexual offence in January and that an apology would satisfy her. The defendant was also implored to tell the complainant that he remembered what he had done because “you are putting me through hell” and to “put me out of my misery… you owe me that much”. The complainant’s questioning throughout was pertinacious and her lies repeated. In response to questions by the defendant, the complainant told him that she was at home, the conversation was not evidence-gathering and that she was not “setting” him up. The complainant was, of course, an agent of the State. In the circumstances, there seems a sound argument that the defendant was deliberately deceived into giving up his right to silence in circumstances in which he had demonstrated that he did not intend to do so. Overall, the complainant’s conversation seems highly manipulative.

25. [25]
    I make it plain that I have no criticism whatsoever of the complainant personally. As with all persons in her position, the complainant was called upon to conduct a pretext telephone conversation without any meaningful instruction or guidance as to what was acceptable and what was not, for this purpose.

26. [26]
    For the reasons expressed above, any conversation subsequent to the making of the threat or promise cannot be received in evidence and is excluded. Whilst the conversation prior to the making of the threat or promise is admissible, the probative value seems slight and outweighed by its prejudicial effect. However, if necessary, I shall hear argument on this matter.