DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the defence for the exclusion of a pretext telephone call made by the complainant’s mother to the defendant on 7 November 2010.
2. [2]
   The defendant is charged with the following counts:

   1. (a)
      Indecent treatment of JP on a date unknown between 1 January 2006 and 29 May 2008 at Rockhampton with circumstances of aggravation;
   2. (b)
      Indecent treatment of JP on a date unknown between 1 January 2006 and 29 May 2008 at Rockhampton with circumstances of aggravation;
   3. (c)
      Indecent treatment of JP on a date unknown between 1 January 2006 and 29 May 2008 at Rockhampton with circumstances of aggravation; and
   4. (d)
      Indecent treatment of JP on a date unknown between 1 January 2006 and 29 May 2008 at Rockhampton with circumstances of aggravation.

Summary of the evidence

Complainant’s mother’s statement

3. [3]
   The complainant’s mother has provided a statement dated 7 November 2010.  She lived at an address in north Rockhampton with her five children and her husband the defendant.  The complainant was born in May 2002.
4. [4]
   As at 4 November 2010 there were arguments between the defendant and the mother about his interactions with a 15 year old girl KB.  The defendant typed on his Ipod touch “Sorry I couldn’t remain faithful”. The mother confronted the defendant yelling “What does that mean?” The defendant said he meant he was watching pornography.  He then said he couldn’t get his problem under control before he hurt JP (the complainant) with it.  
5. [5]
   He thereafter made some admissions to her as to inappropriate conduct with JP. After this the defendant and the mother met with RP, a pastor of their church for the purpose of counselling. He made further admissions to RP. 
6. [6]
   While at counselling the defendant said he was going to post an apology letter on Facebook and then commit suicide.  It was decided the defendant should go to hospital and get help for his suicidal thoughts.  The defendant was later accepted into the mental health unit “MHU” of the Rockhampton Hospital.  

The Pastor’s statement

7. [7]
   RB the pastor has provided a statement dated 8 November 2010.  He says the defendant and the mother attended a counselling session on 4 November 2010 at the church.  During the meeting he alleges the defendant made admissions of inappropriate sexual conduct with JP. 
8. [8]
   At this stage the defendant said he was contemplating harming himself.  The pastor told him he obviously had psychological issues that needed addressing.  It was agreed that he would go to the MHU.  The pastor told him to be honest and asked him how many times it had happened with JP. The defendant said it happened four or five times.  

The first 93A statement

9. [9]
   The first 93A tape with JP was conducted on 7 November 2010. She told the police that when she was younger she used to shower with her dad (T13.50).  He used to put her in the shower with her two siblings and he then got in himself (T14.1).  He used to rub shampoo all over her body (T15.31).  She later said that he would put shampoo on her hair and tell her rub this on her hair or he would do it for her (T17.12). She didn’t think that anyone had touched her at any place they shouldn’t have (T18.10).  She then said that when she showered with daddy he touched her on the bottom (T18.42).  She didn’t think she’d showered with daddy by herself (T19.21).

10. [10]
    It may be seen there were no disclosures by the child as to the offences charged.

Hospital records

[11]  The hospital records reveal that the defendant was seen at the Rockhampton Base Hospital at 1920 on 4 November 2010. He was diagnosed with depression, suicidal ideation and self harm (pp158). It was noted in another document “suicidal ideation (different plans) (see pp 159 of EX 2).  It was later noted he was a high suicide risk (pp163). He had actually plans for this- he had searched the internet (pp164.) It was later noted he had a flat effect, flat mood and impaired judgment (pp167). The police were notified he was in the mental health unit (pp171.) The principal diagnosis was “situational” with “PTSD” (pp173). Further he was admitted as a voluntary patient with a high risk of suicide/self harm (pp173). There is a schedule of daily activities at pp190-193. On 5 November 2010 even though he was playing some games he was flat and tearful (pp202). He was prescribed temazepam, diazepam and olanzapine. He was discharged on 9 November 2010. He was seen in outpatients on 19 November 2010 (pp144-145).

Pretext call (Exhibit 1)

12. [12]
    The pretext call was conducted at 5.50 pm on 7 November 2010. At this stage the defendant was in the MHU. The police knew this as the call was made to that unit. I infer the pretext call was conducted as the complainant had failed to make any disclosures in the first 93A tape conducted earlier that day.
13. [13]
    There is no evidence of any attempt by the police to check to see whether the defendant was in a fit state to be spoken to.   
14. [14]
    There appears to have been some reluctance on the part of the mother to speak to the defendant. At T2.40 the police (with reference to an off tape conversation) said to her “I know this is very hard T. but we- we’ve spoken about this … and you can do it.”

15. [15]
    At T5.50 the mother told the defendant “I’m trying to work up to the nastier questions. I’m trying to deal with the ones that I’m not too worried about first.”  
16. [16]
    She then commenced a discussion about the pornography.  Then in my opinion she started to cross-examine the defendant. She said at T6.22 “But see I don’t know what you mean by nasty KP” further “All of this is nasty to me so that’s a very vague description.”  She later asked “what other things?” she asked “have you ever seen a child- a picture of a child being digitally raped? Do you know what this means?” The defendant tried to answer but was cut off by the mother.  She then asked him “have you seen a picture of a person um ejaculating around a child?” He said “um yeah but” and was then cut off again.  He was further cross-examined on a number of occasions from page 6 and page 7.  The mother then asked without establishing whether he hurt JP “was that before or after you hurt JP?” (T7.15).  
17. [17]
    She then cross-examined him about who had his phone (T7.21).  
18. [18]
    There was cross-examination about one particular video he watched (T7.40) and about how long ago that was (T7.45).
19. [19]
    He was cut off again (T8.12) and (T8.20).  It seems to me the mother was quite dominant at (T8.22) where she asked “well it was pretty sucky for me to have to be the one to, who told your family KP” Answer: “I wasn’t expecting you to I was going to deal with it” Question: “No KP you didn’t deal with it and time was passing, my parents knew the first night, my siblings will be told tonight at 7.30. I went to church today and everybody knows that we’re single and that the police are involved, um things were happening, people were finding out and your family needed to know.”  She then mislead him (T9.1) by stating “I don’t want to but I do need to know about JP because one day I’m going to have to have a conversation with her about his and I don’t want to keep badgering you about it, so I want to know now so it’s done and one day I can, I mean she’s a smart cookie. She’s trying to eavesdrop on everything, she is like, you know, I’m not that silly but um she’s um yeah she’s been tyring to eavesdrop and work out everything. Um but yeah I’ll have to have that conversation with her one day.”  This was misleading because she was not just having a conversation for JP’s benefit but trying to elicit admissions for the police.
20. [20]
    She then said at T9.12 “I know when we were with the pastor you said it was two or three times.”  Answer: “Yeah.”  Question: “But pastor has told me since then, you’ve changed your story.”  Answer: “What” Question “he told me that when I

went out to the bathroom you said it may be four or five times.”  Answer: “Oh yeah”.  Question: “Hast the story changed since then?”  Answer: “No that would be about all”.  My impression is the defendant was quite groggy when he made that comment at (T9.30).  He denied going inside her.  He was then cross-examined at T9.40 “not in any way have you ever even kissed her inappropriately any of that sort of thing that we haven’t discussed, anything that I might not think to ask you about.”  Answer: “Not sure what you’re meaning by that um”.  And then he was cut off in his answer.  He was then further cross-examined at T9.50 “Is there anything that you might think might not have been appropriate that you haven’t told me about because I haven’t specifically asked.  I mean have you kissed her on the lips?  Have you done anything that’s not normal for a dad to do with his daughter?”  Answer: “Yeah, I did try to do that at one point and she because of the way she reacted I never did that again.”  It seemed to me that he was just agreeing with the question posed.

21. [21]
    Similarly at T10.10 he was cross-examined at one point he was just simply agreeing with her she asked “so you were probably trying to continue but didn’t because of the answer.”  Answer: “Probably yes”. There was an interrogation from T10.10-40. The mother then asked at T10.45 “so was that at each of the four or five occasions or was that something you thought up once?” (with reference to ejaculation at some later point).  Answer: “it was on a couple of occasions.”  Question: “So does a couple mean two or does that mean some but not the whole lot?”  Answer: “It was a couple as in two.”  
22. [22]
    Then at T10.59 the mother said “Okay I’m sorry but sometimes you’re deliberately being vague and I need to know what to tell her”.  Answer: “I’m just not I know I just don’t want to talk about this especially not with you, but anyway”.  Question: “I do not want to talk about this either KP.”  Answer: “I know it just needs to be out there.”  Question: “But if we do this time, we’ll never need to discuss it again”.  Answer: “yeah”.  Question (T11.10): “Trust me, I never intend to discuss this again except with JP many, many years into the future, um when you tried to kiss her once inappropriately, was that in the shower? Or was that outside of the shower?” 

Answer: “That was outside of the shower”.  Question: “Okay, was there anything else outside of the shower incident that you need to tell me about.” 

23. [23]
    Having listened to the tape, it seems to me the mother was particularly forceful at this stage.  She also mislead the defendant about who she was going to tell about this conversation.
24. [24]
    This forceful attitude continued at T11.59 “Was this immediately after we moved to

Rockhampton or had we been there for a little while and then it happened?”  Answer: “I don’t know”.

25. [25]
    There was further cross-examination at T12.5 “Had you watched the child porn only in our current house or was that in Toowoomba and then.”  Answer: “As far as I know I saw some of that at Stanthorpe.”  There was further cross-examination about the images (T12.25).  There was a discussion about clicking on a link and she said “Yeah but you went there deliberately, it wasn’t like L showed it to you or anything like that.” (T12.35). Question at T12.50 “So the first time something popped up unexpectedly but after that you kind of went back looking for a bit more.”  Answer: “Most of the time no, most of the time it was they just turned up, I think the only time I went looking was that video that I found and that I didn’t want to watch that ever again and I actually got off, deleted Limewire, deleted everything.”  Then the mother asked “um I can’t remember, um I think that might be everything, you sure?  I don’t want to hang up if it’s not because I obviously don’t want to have this conversation again for any of us.  Okay I did want to ask you one thing you remember anything that you think you need to tell me about any of the other children.”  The defendant denied touching the other children.

26. [26]
    My overwhelming impression of the tape as I have noted earlier is the mother was the dominant one of this conversation. She was clearly cross-examining the defendant and made misleading statements to the defendant as to the purpose of the tape.

Contact with the police 

27. [27]
    On 8^th November 2010 the police attended the MHU to speak to the defendant. The defendant was in the presence of a support person and a mental health worker.
28. [28]
    After his release from the MHU the defendant attended the Rockhampton police station with his support person and he declined to be interviewed. 
29. [29]
    I note the support person has provided a statement to the police as to alleged admissions made by the defendant to him. This seems to be an unusual course.

Second 93A tape

30. [30]
    The second 93A tape was conducted on 6 December 2010. The complainant told the police she was there to talk to them about “bad videos dad’s been watching.” 

(T5.11).  She said she had the habit of watching over dad’s shoulder and dad was watching naughty videos and saw people in their underwear and even their “bottoms”.  She was not sure but she thought she saw their hands on other people’s bottoms but was not sure and there were a few groaning and moaning sounds (T5.40).  When mum came home he got out of the website and he didn’t tell mum what he had been doing (T5.45).

31. [31]
    She later said “well it’s just that I think I saw it but it was so long ago I don’t know if I really saw it or if it’s in my imagination.”  (T7.50). She later said she was sure of the knickers but not sure of the bottoms (T9.4).
32. [32]
    She said she thought they were rubbing their bottoms and knickers but was not sure (T9.15).  

Dr Flanagan’s evidence

33. [33]
    Doctor Flanagan, a psychiatrist has provided a report concerning this matter (EX 3).  Dr Flanagan notes that the mental heath service intake entry at 3.58 pm noted the defendant as presenting with depression and suicidiality.  He didn’t think he’d make it through the night.  He gave a history of pornography use since adolescence which had become depraved bordering on illegal involving child material.  He volunteered information about touching his daughter three or four times a few years ago.  He was isolated and withdrawn with a low mood and congruent affect.  There was history of alcohol and drug use but that was not discussed (2.21-2.25). 
34. [34]
    At 2200 hours an entry was noted that there had been suicidal thoughts in the last couple of weeks.  He had been downloading child pornography over five years and on about three occasions he touched JP in inappropriate places or rubbed against her when they showered together.  He also admitted inappropriate sexual dealings with one of his students (2.26-2.27).
35. [35]
    When a doctor examined him it was regarded that he was a serious suicide risk.  Nursing notes over the next two days described him as withdrawn, depressed and isolated.  He was given diazepam after a visit by pastor on 6 November 2010. (2.322.33) 
36. [36]
    On 7 November 2010 he was low in mood, flat in affect and spending a lot of time alone.  He was found crying after the phone call from his wife when she had told him she intended to divorce him (2.35).
37. [37]
    Doctor Flanagan has listened to the CD record and read the transcript.  He regarded (as I do) that the mother persisted in an inquisitorial manner (3.1-3.2).  
38. [38]
    Doctor Flanagan concluded that the defendant was a man with significant personality vulnerability who had been having serious emotional difficulties for at least several months.  He thought over a period of several months (since his son’s surgery) his personality problems were likely to have decompensated into a mood disorder of at least adjustment disorder status.  Ensuing developments after the discovery were rapid and catastrophic.  Confessions were made to the pastor.  He had been dismissed or resigned from his job and expresses suicidiality and agreed to present at hospital.  He was admitted voluntarily. Apparently further confessions to another pastor occurred in the context of pastoral counselling as an inpatient (4.2-4.8).
39. [39]
    Nursing notes described him as isolated and withdrawn.  The pretext call occurred after a time when nurses observed him to be crying.  No attempt was made by the police to ascertain from hospital staff (a psychiatrist would have been required) whether he was in a fit mental state to receive such a call.  The police themselves delayed their interrogation until after he was discharged (4.10, 4.14).  
40. [40]
    It was Doctor Flanagan’s opinion that at the time of the pretext call the defendant was suffering from a mood disorder exacerbated by his current circumstances.  At the least this was in the nature of an adjustment disorder that may have been relatively low grade or indolent major depressive disorder.  This is in the setting of a vulnerable personality and a cascade of stressors combining on the day of his admission (5.1-5.2). 
41. [41]
    Doctor Flanagan had grave doubts about whether he was mentally capable of being a reliable witness and whether he was in a state to be aware of his rights and consequences of his admissions (5.3). 
42. [42]
    If this mental state is combined with high levels of compliance and strong religious ethos there may be a drive to confess what has not been done or to exaggerate it in order to be abashed or punished.  It was concluded that as a result of his personality vulnerability, mood disorder, stressors and the nature of the pretext call, its reliability is highly suspect (5.6-5.10).  
43. [43]
    In cross examination Dr. Flanagan was challenged as to his conclusions particularly bearing in mind he had not seen the defendant. 
44. [44]
    However I listened to his evidence carefully and despite the fact he did not see the defendant, he relied on contemporaneous hospital notes and the tape itself. I accept Dr. Flanagan’s evidence. There was no evidence by the Crown called in response to the defence psychiatric evidence.  
45. [45]
    The crown relied on pp 145 of the medical notes. These notes signed by a Nurse Practitioner dated 19 November 2010 noted there was no evidence of any major mental illness. He was depressed in relation to court charges. The impression was he had an adjustment disorder. The difficulty with placing great reliance on these notes is the nurse was not called, the details of the qualifications and experience of the nurse were not placed before the court and the note was made some days after the call.
46. [46]
    The crown also relied on the fact that the defendant was noted to be playing pool prior to the call. I do not consider this detracts from the evidence he was under an impairment at the time of the pretext call. 

Submissions

47. [47]
    I have taken into account the submissions made by both parties. Summarised they are as follows.
48. [48]
    The Defendant submits that it would be unfair for the pretext call to be admitted. The defendant in essence says it would be unfair to admit the tape considering the defendant was in the MHU at the time and there are reliability issues with the admissions contained therein.
49. [49]
    The prosecution on the other hand submits:

    1. (a)
       The evidence of Dr. Flanagan should not be accepted.
    2. (b)
       Dr. Flanagan did not see the defendant.
    3. (c)
       The hospital notes do not support the contention the defendant was not in a fit state to be interviewed.
    4. (d)
       The admissions are reliable.
    5. (e)
       The mother acted appropriately in the questioning.

Relevant Law

50. [50]
    I was informed that voluntariness was not to be relied on a ground of exclusion here. It is therefore unnecessary to determine whether the mother was in a position of authority for the purposes of section 10 of the Criminal Law Amendment Act 1894 (Q). I note that R v Anderson [2008] QDC 137 Martin SC DCJ considered that a complainant could be a person in authority.  
51. [51]
    Section 130 of the Evidence Act 1977 (Q) permits the court to exclude evidence if it is unfair to admit such evidence.  
52. [52]
    In addition to the unfairness discretion there are also discretions to exclude on the grounds of public policy, on the grounds that a confession has been illegally obtained and on the grounds that the evidence is of slight probative value far outweighed by its prejudicial effect (see R v Swaffield (1998) 192 CLR 159).  
53. [53]
    Toohey, Gaudron, and Gummow JJ held at [74]: 

“One matter which emerges from the decided cases is that it is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues.  The overlapping nature of the unfairness discretion and the policy discretion can be discerned in Cleland v The Queen.  It was held in that case that where a voluntary confession was procured by improper conduct on the part of law enforcement officers, the trial judge should consider whether the statement should be excluded either on the ground that it would be unfair to the accused to allow it to be admitted or because, on balance, relevant considerations of public policy require that it be excluded.  That overlapping is also to be discerned in the rationale for the rejection of involuntary statements. It is said that they are inadmissible not because the law presumes them to be untrue, but because of the danger that they might be unreliable.  That rationale trenches on considerations of fairness to the accused.  And if admissibility did not depend on voluntariness, policy considerations would justify the exclusion of confessional statements procured by violence and other abuses of power. 

75. [75]
    In McDermott, Dixon J spoke of voluntariness in terms of the ‘free choice to speak’ and expressed doubts ‘whether ... in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man's will’.  And in Cleland Murphy J said: 

‘It may be a question of classification whether a confession induced by false representations or other trickery is voluntary.’

His Honour referred to older decisions which treated trickery as negating voluntariness. 

76. [76]
    The wider the operation given to the principle that, to be admissible, a confession must be voluntary, the less scope there is, in practice, for the exercise of the unfairness discretion.  Particularly is that so in relation to improprieties calculated to cause the making of an untrue admission.  It may be expected that improprieties calculated to have that effect will often impact on the exercise of a free choice to speak if that notion is given its full effect.  However, it will not necessarily be so in every case. 

[77] In R v Lee, the likelihood of an impropriety resulting in the making of an untrue admission was treated as ‘relevant, though not necessarily decisive’.  As the authorities stand, the likelihood of an unreliable confession does not mandate the exercise of the unfairness discretion to exclude that evidence.  Nevertheless, it is hard to understand why, in such circumstances, the discretion would not be exercised in that way, particularly when regard is had to the consideration that the risk of an untrue admission is the rationale for the inadmissibility of a non-voluntary confessional statement. 

[78] Unreliability is an important aspect of the unfairness discretion but it is not exclusive.  As mentioned earlier, the purpose of that discretion is the protection of the rights and privileges of the accused.  Those rights include procedural rights.  There may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence.  Thus, in McDermott, where the accused did not admit his guilt, but admitted making admissions of guilt to others, it was hypothesised by Williams J that it might have been unfair to admit his statement if the persons to whom the admissions were made were not called as witnesses.  In R v Amad, Smith J rejected admissions which were voluntary and which the accused accepted were true because the manner in which he was questioned led to apparent inconsistencies which might be used to impair his credit as a witness.  And the significance of forensic disadvantage is to be seen in Foster where the inability of the accused to have his version of events corroborated was taken into account.”

54. [54]
    The courts in Queensland on a number of occasions have dealt with applications to exclude pre-text calls. 
55. [55]
    For example in R v Dunning ex parte Attorney-General [2007] QCA 176 the trial Judge had excluded a pretext call between the Defendant and the complainant. It was held that the trial judge had not erred in his decision. His Honour in particular considered the complainant’s motives for the call and the pressure placed on the defendant to make the admissions.

Conclusion

56. [56]
    I am satisfied on the balance of probabilities it would be unfair to admit the pretext call in this case. Further I find it would be contrary to public policy to admit the recording.  
57. [57]
    In summary I reach this conclusion based on:

    1. The mental state of the accused at the time of the conversation.
    2. The police made no attempt to ascertain his fitness to undergo such a conversation.
    3. Section 422 of the Police Powers and Responsibilities Act 2000 (Q) (“PPRA”) was circumvented. 
    4. The nature of the interrogation by the mother and the dominance exerted by her.  
58. [58]
    Firstly in this case it is my conclusion that the defendant most likely suffered an adjustment disorder at the time of the conversation. In light of his mental state, I find he was not in a fit state to produce reliable admissions. He was likely to at times agree with what was put to him. That is not to say that some of the admissions were not reliable. It is to say that not all of them are. Indeed my view is that at times he simply agreed to that which was put to him.
59. [59]
    Secondly as I have noted previously there was no attempt by the police to ascertain whether the defendant was fit to be spoken to by his wife.  
60. [60]
    Thirdly I am of the view that it would be wrong to allow the police to circumvent section 422 of the PPRA. This section relates to questioning of persons with an impaired capacity.  If a police officer reasonably suspects that a person has impaired capacity questioning must not start unless the person is allowed to speak to a support person and a support person is present while the person is being questioned^[1].  It may be true that the police were not questioning the defendant themselves at the time of the pretext call, but to allow the admission of this tape would circumvent the legislature’s intent that a person with impaired capacity is to have his or her rights protected^[2]. Indeed in this case the police were aware of the admission to the MHU. A support person was also present when they attended the hospital and when they sought to interview him after discharge. The police also waited until his discharge before they sought to interview him. 
61. [61]
    Therefore while it may be there was no breach of s 422 of the PPRA such as to render the conduct in breach of the statute (giving rise to the discretion to exclude illegally obtained evidence), in my view the conduct was contrary to public policy and was unfair. 
62. [62]
    I appreciate that pretext calls may be tendered where there is non-compliance with other provisions of the PPRA (see e.g. Tofilau v The Queen; Marks v The Queen; Hill v The Queen; Clarke v the Queen (2007) 231 CLR 326), but I consider the protections to persons of impaired capacity to be particularly important as such persons are vulnerable, unlike persons seeking to be a member or associated with a criminal gang such as those in Tofilau.    
63. [63]
    I also consider that the mother’s questioning was forceful at times and she was dominant over the defendant.  I also consider she impermissibly cross-examined him. In light of his mental state this was apt to produce answers simply agreeing with her at times. I consider the mother also mislead him by stating, or at least inferring that the only reason for the admission was to tell JP in “many years time”. This was untruthful.
64. [64]
    In exercising the discretion I have taken into account the serious nature of the charges, the cogency of the evidence, the ease with which the conduct could have been regularised and the intention of the legislature (Bunning v Cross (1978) 141 CLR 54).
65. [65]
    I have also taken into account the statement of Barwick CJ in R. v. Ireland (1970) 126 CLR 321 where his Honour said at pp335:

"Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."

66. [66]
    Balancing the interests of the Crown in having the conversation admitted as against the rights and the interests of the accused in the exercise of my discretion I exclude the pretext conversation on the grounds of unfairness and on the grounds the admission of the evidence would be contrary to public policy.