R v Hasanov[2013] QDC 342

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 11 March 2013 an indictment was presented in this court alleging, against the defendant, one count of rape on or about 11 July 2012. The complainant and the defendant were then sharing a home unit, but were not in a relationship. On 12 July 2012 the complainant spoke to police, and a pretext telephone conversation occurred between her and the defendant, which was recorded. Subsequently there was an exchange of messages on Facebook between the complainant and the defendant. On 15 July 2012 there was a further pretext telephone conversation between the complainant and the defendant, which was recorded.

2. [2]
   The defendant has applied to have evidence of both of the pretext conversations excluded, the first on the discretionary basis, and the second, on the ground that it is inadmissible pursuant to s 10 of the Criminal Law Amendment Act 1894, or alternatively on the discretionary basis.  During the hearing the application was expanded to encompass certain Facebook messages from the defendant addressed to the complainant. 

First conversation

3. [3]
   A recording of this call was put in evidence and played during the hearing; I also listened to part of it again in chambers. A transcript was also available, but there are some deficiencies in the transcript. During the conversation the complainant essentially made a series of statements about what she said the defendant had done, and from time to time the defendant was given the opportunity to respond. Initially he responded in ways which could be interpreted as admissions that the conduct referred to had actually occurred, although as her allegations progressed what he said was more ambiguous, and included statements that they were both drunk. He also denied or rejected some of the things put to him. At one point he asserted that she had agreed to something in the early stages of the incident. Eventually after she asserted something he said “I really can’t understand you”, and she responded that she couldn’t understand him, that she didn’t want to talk to him anymore and finally: “no, I am going now. I am going to call the police.” She then hung up. The conversation ended before the alleged penetration.

4. [4]
   There is a matter in relation to the first conversation that I should mention. Counsel for the defendant submitted that if one listened carefully to the recording of the first conversation, there was a pause before the complainant said (just before she hung up) “I am going to call the police,” and during that pause one could hear someone whispering the same words, apparently prompting her in what she would say to the defendant. When the tape was played in court I could not detect any whispers, but subsequently when it was played in chambers with the assistance of earphones I could detect something at that time, though it was very faint and I could not be positive that those words were said; it did sound something like “police” at the end. On the basis of this being heard on the tape, counsel for the defendant sought to cross-examine the police and the complainant, alleging that this showed that one of the police officers at least had remained in the room with the complainant, justifying the inference that they had been prompting her questioning, which it was submitted involved impropriety on the part of the police, and the recording of the conversation should be excluded for that reason.

5. [5]
   I refused the request for cross-examination of these witnesses, because it seems to me that it would not be relevant to establish that there was someone, presumably a police officer, in the room with the complainant during the conversation. Assuming that the complainant had been prompted to make this statement to the defendant, there was no response to it, so there can have been no question of evidence elicited by it being excluded. Apart from this, there is nothing in the timing or content of the recorded conversation which suggests that the complainant is being prompted in any way. There are no other significant pauses; if anything the complainant is talking so much that there would not have been time to prompt her as to what to say. There is certainly nothing in the content of what she said which suggested that she had any assistance in formulating what she said, or that what she said might have been suggested to her by a police officer seeking to undertake in this way an indirect interrogation of the defendant.

6. [6]
   Plainly if a police officer is in fact in control of the questioning process, the same rules would apply whether the questions were actually put to the defendant by the police officer or by another person simply asking questions at the direction of the police officer. At the other extreme is the situation where there is a conversation where the content is entirely undirected by the police officer. There are many possible positions in between. At some point it could be said that what was taking place is in substance a questioning by the police officer, and it may well be that there is a further point where there could be said to have been some impropriety in the police conduct by the way in which the questions were formulated or controlled by the police officer.

7. [7]
   Subject to that however, it seems to me in principle whether or not there were police in the room is strictly irrelevant to the admissibility of the conversation.^[1]  Prior to the time when recording devices were conveniently available, the technique used was to have a concealed police officer eavesdrop on a conversation and in that way overhear admissions which the person concerned thought were only being made to a person whose evidence might not be regarded as reliable.  I expect that the police practice of not being in the room with the complainant during the conversation, and providing virtually no guidance as to how the conversation should be conducted, has been adopted out of an abundance of caution rather than because it is essential in order to have the recording admitted in evidence. 

8. [8]
   It also occurs to me that, if the recording will be rendered inadmissible if either party says certain things during the conversation, logically the integrity of the process could not be impaired by a police officer telling a complainant that that was the situation, and not to mention those things.^[2]  In the present case assuming there were police officers in fact in the room with the complainant, there is nothing in the content of the complainant’s side of the conversation which indicates or suggests any real interference in the conversation by the police, so as to justify any inquiry into just what happened. 

Facebook messages

9. [9]
   A few minutes after the first phone conversation, there was a Facebook message to the complainant, apparently from the defendant, in the following terms:^[3]

“I am really sorry.  I apologise for that night.  But I ask you to think before acting.  We both adult.  We both were drunk.  I did not mean to do anything that make you uncomfortable.  If you don’t want to see me again it is ok.  But please understand me, you have always been respected person for me.  If you want tell me your place I can come and solve the problem.  I have also sister and believe me I can understand you never wanted to behave you disrespected.”

10. [10]
    It is not difficult to conclude that this message was sent in response to the statement that the complainant was going to call the police. That statement could be taken as an implied admission that there was some conduct by the defendant to the complainant that night which was now regretted by the defendant, but, particularly in circumstances where the earlier conversation had not extended to the point of any allegation of penetration, I do not think it can be characterised in any way as an implied admission of rape.

11. [11]
    Shortly thereafter there was a reply posted by the complainant:

“I’m not going to the police, I just want you to admit what you did and apologise for what you did.”

There was a prompt reply apparently from the defendant:

“I am sorry, I apologise for that.  I did wrong.  But I swear never intended to make you upset.  Things happened that will stay with me.  I am not going to talk about that, even with you.  Just want to say that we still friends.”

12. [12]
    It was submitted for the defendant that this posting should not be received in evidence, first because it was obtained contrary to s 10 of the Act, and second because it should be excluded anyway on the discretionary ground, because of doubts as to its reliability. The basis of the argument was that the intervening posting from the complainant would have conveyed in substance the proposition that, if the defendant did admit what he had done and apologised for it, the complainant would not go to the police. If the complainant was a person of authority, that was an inducement so that the subsequent posting, and indeed any relevant admission contained in the second conversation, was to be taken to have been induced by that threat or promise, and hence should be excluded as not being voluntary. In the alternative, there would have to be doubts about the reliability in circumstances where the defendant, bearing in mind his position, might well have been readily prepared to offer an apology even if he did not in fact have anything to apologise for, simply to avoid the matter being relayed before the police.

Second conversation

13. [13]
    On 15 July 2012 there was a further conversation between the complainant and the defendant which was recorded. Again I listened to the recording as well as reading what purports to be a transcript of the conversation, which to some extent I was able to correct. In the phone conversation the complainant said she was worried about her health because he had told her that he had had sex with prostitutes. He disputed that he had told her on the day she nominated, and said it was more than one month ago; it is perhaps ambiguous whether he was there nominating when he says that he told her, or when he says he had had sex with prostitutes. In any case, she then said “I need to know if, that night, you put …” when he cut her off saying “no I didn’t touch you that night”, and went on to say that “we didn’t have sex that night”.

14. [14]
    There was then a conversation where she repeatedly asserted that he had put something inside her because she felt something painful, and he had repeatedly, and somewhat forcefully, denied any penetration, although it is apparent from some of the things that he said that what he was talking about was penile penetration. He said, apparently to give colour to this denial, that she had told him that night that she was having her period, and after that he didn’t do anything. The defendant also said that it might have been his finger, although he added that he did not actually remember that, but was very sure that it was not his penis. She pressed him about whether he had penetrated with his finger, saying that she had felt pain then and she was still feeling pain, and that she needed to know what happened for the purpose of receiving any relevant medical attention. This involved pressing him, somewhat forcefully, to come up with an explanation for the fact that she was continuing to feel pain, and in that context he suggested that it might have been his finger, and added that he remembered that he touched her on the vagina with his finger. He repeatedly asserted that there had not been any penile penetration. The conversation came to an end, without any more clarification than that.

15. [15]
    Ultimately it seems to me that there was an admission by the defendant during the conversation that he had touched the complainant on the vagina, but I do not think that what he said went so far as to amount to an admission that he had penetrated her with his finger. The farthest he went seems to me to be little more than a theoretical recognition that that could have occurred, in a context where he was being pressed to provide an explanation for what she was asserting was a continuing symptom of pain apparently associated with penetration of some kind. He emphatically denied penile penetration.

16. [16]
    In these circumstances, where the penetration the subject of the charge has been particularised as penetration either with the penis or the finger, an admission that the defendant might have penetrated is I think relevant if it is an admission of conduct based on the defendant’s saying what he can recall about what actually happened, subject to the question of voluntariness and any discretionary exclusion. There is also the consideration that, on the charge of rape, it would be open to the jury to return a verdict of guilt of sexual assault contrary to s 352: Criminal Code s 578(1).  An admission of touching her vagina could therefore be admissible as an admission of an act amounting to sexual assault, if the jury were satisfied of the other elements in that offence, but were not satisfied that the defendant was guilty of rape.  The complainant had been asserting penetration, but she had not asserted such touching prior to his statement that it had occurred. 

Basic principles

17. [17]
    In Tofilau v R (2007) 231 CLR 396 Gummow and Hayne JJ at [28] said:

“There are three separate, but overlapping, inquiries that may have to be made in deciding whether evidence of an out of court confessional statement is admissible.  First, there is the question, commonly described as a question of ‘voluntariness’ presented when the confession in issue is made to someone identified as a ‘person in authority’.  Secondly, there may be the consideration of exclusion of evidence of the confession based upon notions of ‘basal voluntariness’.  Finally, there is the discretion to exclude evidence of the confession for reasons of fairness, reliability, probative value or public policy.”

18. [18]
    Their joint judgment in Tofilau said at [68] that “the chief focus for the discretionary questions that arise remains upon the fairness of using the accused person’s out of court statement, rather than upon any purpose of disciplining police or controlling investigative methods.”

19. [19]
    The first two issues, being aspects of voluntariness, are matters which go to the admissibility of the confession or admission, because when that is challenged the onus is on the Crown to show on the balance of probabilities that the confession or admission was voluntary. The first basis is concerned with statements made to a “person in authority”.

Person in authority

20. [20]
    In McDermott v R (1948) 76 CLR 501 at 511, Dixon J, in a passage which is strictly speaking dicta but which has been frequently cited as an authoritative statement of the law, referred to the need for it to be shown that a confessional statement was voluntarily made before it was admissible in evidence.  He said that it was:

“A definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made.  …  The expression ‘person in authority’ includes officers of police and the like, the prosecutor and others concerned in preferring the charge.”

21. [21]
    The case was one where the issue was as to the exercise of the discretion by the trial judge to exclude evidence which was voluntary, and the relevant questioning was by police officers identified as such so there was no issue as to the scope of the concept “person in authority”.

22. [22]
    The requirement that the admission be made to a person in authority has an interesting history, which was traced in the joint judgment of Callinan, Heydon and Crennan JJ in Tofilau at [283].   When the rule excluding confessions resulting from threats or promises arose in the 18^th century, initially there was no such requirement,^[4] although it appears that that rule arose because of concern that false confessions would be extracted by masters from their servants, given the considerable power exercised by masters over domestic and other menial servants in those days.^[5]  It seems to me that the rule was or became somewhat controversial, and some judges sought to restrict it, and the “person in authority” requirement arose in this context.^[6]  The case of R v Row referred to in Tofilau was one of three cases referred to all the judges by Chambre J “in consequence of the obscurity and discordance of the cases upon the subject that are in print.”^[7]  An example of the application of the limitation was R v Wild (1835) 1 Mood 452, 168 ER 1341, where a confession extracted from a 13 year old boy by some neighbours by the exertion of considerable moral authority was held by the judges to be strictly admissible, though they much disapproved of the mode in which it was obtained.

23. [23]
    There were early cases which were consistent with the proposition that, where the defendant was a servant, the master of the defendant; and by extension someone able to exercise the authority of the master, such as his wife, was a person in authority. In R v Moore (1852) 2 Den 522, 169 ER 608 a confession was procured by the mistress of the defendant, a domestic servant.  Parke B, at 610 delivering the judgment of the Court for Crown Cases Reserved, said that the rule was that admissibility depended on whether the confession was to a person in authority, and that “in the present case, the offence ... was in no way an offence against the mistress of the house.^[8]  She was not the prosecutrix then, and there was no probability of herself or the husband being the prosecutor of an indictment for that offence ...; therefore we are clearly of opinion that the confession was properly received.”  It followed that the question was whether the confession was obtained by someone having authority in relation to the charge, not over the defendant in some wider sense.  The report sets out a detailed argument presented by counsel for the defendant who emphasised a number of unsatisfactory features in this arbitrary rule, as Parke B himself acknowledged in that case.^[9]

24. [24]
    Of course, in those days the prosecutor could be anyone. At common law anyone could present a bill of indictment before a grand jury against any person for any crime.^[10]  This power was to some extent controlled from the 16^th century by the introduction by statute of the process which in time evolved into the system of committals,^[11] and later by the Vexatious Indictments Act 1859 (UK),^[12] and it survives in nominal form in the Criminal Code, s 686.^[13]  As well, anyone could, and indeed still can, initiate a committal proceeding by laying a complaint before a justice of the peace: Justices Act s 42, which contains no restriction on who can be a complainant.^[14]  Prior to the creation of the office of Director of Public Prosecutions in England in 1879,^[15] private prosecutions were the norm except in those cases where a law officer of the Crown was the prosecutor.  By the time of the trial the identity of the prosecutor would be known, but unless the proceedings had already been instituted, it would not be known at the time of the inducement and the confession.  If it had in fact been Hannah Moore’s mistress who had prosecuted her, presumably the confession she had induced would have been excluded.^[16]

25. [25]
    There has been at least one case in England where the rule in relation to people in authority has been applied in circumstances where there has not been any authority in relation to the charge by the person offering the threat or inducement.^[17]  In R v Harz [1967] AC 760 the House of Lords held that there was no requirement that the inducement relate to the charge, but no doubt was cast on the approach of Parke B in R v Moore.  There are, however, also a line of cases which appear to extend the concept, from a person having authority in relation to the charge, to a person having an interest in the charge, such as the victim of the offence.  These can be traced back to the decision in R v Thompson [1893] 2 QB 12, where the defendant was tried for embezzling money from a company of which he was the employee, so that in the language of the time the company were “his masters”.  A confession made to the chairman of the company was excluded on the ground that there had (presumably) been communicated to the defendant prior to the confession a statement by the chairman to relatives of the defendant that “it will be the right thing for [him] to make a clean breast of it” or something to that effect. 

26. [26]
    The judgment of Cave J, with whom the other members of the court concurred said at 15 of a confession:

“If it flows from hope or fear, incited by a person in authority, it is inadmissible.”

The subsequent discussion however contained no analysis of the question of whether or not the chairman of the company was a person in authority, so it is unclear whether he was treated as being in that position because he was the prosecutor or analogous to the prosecutor, or whether it was because he was the personification of the victim of the crime.  There is nothing in the judgment to suggest that he was regarded as a person of authority on the latter basis. 

27. [27]
    In R v Wilson [1967] 2 QB 406 a householder whose home was broken into and property stolen sought to recover the property and offered to pay a particular amount for information to someone who had previously had temporary employment at the house, who then admitted having certain items and offered to return them, but for a larger amount.  The Court of Appeal held that admissions made to him were inadmissible.  Lord Parker CJ, delivering the judgment of the Court, said at p 415:

“The first question that rises is whether Captain Birkbeck was a person in authority.  There is no authority so far as this court knows which clearly defines who does and who does not come within that category.  It is unnecessary to go through all the cases; it is clear, however, in R v Thompson that the chairman of a company whose money was said to have been embezzled by the prisoner was held to be a person in authority.  It is also clear that in some cases it has been held that the prosecutor’s wife is a person in authority,^[18] and in one case that the mother-in-law of a person whose house had been destroyed by arson was said to be a person in authority viz a viz a young girl employed by the owner of the house, in other words she was looked upon as a person in authority in relation to that girl.^[19] …  On the facts of this case Captain Birbeck was and was known to be the owner of the house that had been broken into, and the owner of the property concerned, in other words the loser and the person most interested in the matter.  It is true that these days it would probably be impossible for him to stultify a prosecution that had been brought or to prevent a prosecution that had not yet been brought from being instituted, but nevertheless in the judgment of this court Captain Birkbeck came clearly within the principle as a person who could properly be said to be a person in authority.”

28. [28]
    It may be noted that this was an ex tempore judgment, but it involves a leap from those cases based on the existence of authority in relation to the charge to the proposition that authority arises from the fact that the person has been the victim of the crime, and in that sense the person most interested in the matter.  It seems to me that in substance the Court of Appeal invented this extension of the concept of “person in authority”, as would be apparent from any consideration of the emphasis on “authority” in the earlier cases purportedly relied on.^[20]  Nevertheless this was the very passage relied on by the Privy Council, albeit in the negative sense that it was picked up for the purpose of showing that someone who was no more than a possible witness for the prosecution was not a person in authority: p 31.

29. [29]
    In Deokinanan v R [1969] 1 AC 20 the Privy Council, after citing the passage from Wilson, approved a statement of Bain J in R v Todd (1901) 13 Man LR 364 at 376, in the following terms:

“A person in authority means, generally speaking, anyone who has authority or control over the accused or over the proceedings or the prosecution against him.”

In that particular case it was held that a person who was simply an acquaintance of the accused was not a person in authority.  It was not difficult to conclude that the person concerned in Deokinanan was not a person in authority.  It would otherwise have meant effectively the repeal of the “person in authority” limitation, since presumably anyone to whom a confession was made would be a witness in the trial, otherwise the issue would not arise.  This formulation however appears inconsistent with the limitation in R v Moore, unless the words “in relation to the charge” are read in after the word “accused”.

30. [30]
    Nevertheless, the fact that the extension by Lord Parker was not scotched by the Privy Council may have led Wood J to treat Wilson as authoritative in R v Scofield (1988) 37 A Crim R 197.  Reference was made to McDermott and the statement approved in R v Todd (supra), and his Honour continued at p 199:

“In Archbold the expression is suggested to mean ‘someone engaged in the arrest, detention, examination or prosecution of the accused, or someone acting in their presence and without the dissent of such person.’  The cases where the question has arisen for determination have generally been decided without laying down any principle of general application.  Some have been concerned with the victims of theft: for example Wilson [1967] 2 QB 406, where it was held that the owner of the house and property the subject of the charge did constitute a person in authority even though it would probably be impossible for him to stultify or prevent a prosecution.  In another case, Deokinanan [1969] 1 AC 20, however, it was held that the mere fact that the person involved was a possible witness for the Crown did not make him a person in authority.  It seems to me from the reported decisions that if the person offering the inducement is the victim of a criminal offence in which category I would include a complainant in a sexual case then he or she would answer the description of a ‘person in authority’. ... When it is a parent who initiates the investigation and causes the prosecution to commence, it seems to me that he or she does at the time answer the description of a ‘person in authority’, since it is within his or her power to place the wheels and a prosecution in motion.  That power is one of some substance which could be capable of abuse.  Accordingly it appears to me that Mrs Scofield was, at the relevant time, a person in authority. …”

31. [31]
    In that case the wife of the defendant and mother of the complainant told him he could not see their children until he went to the police and told them what he had done. The reasoning is clear enough: A victim of crime is a person in authority because he or she is the person who sets in motion the investigation and ultimately the prosecution, and therefore a person acting on behalf of a child complainant is equally a person in authority. It might be regarded as the logical development of Lord Parker’s approach, which was also applied in Jonkers v Police (1996) 67 SASR 401, where the admission was made to the foster mother of the complainant, but there was no reference to any relationship of authority with the defendant, let alone one in relation to the charge. 

32. [32]
    R v Dixon (1992) 28 NSWLR 215 concerned the admissibility of statements made to a community aboriginal liaison officer by the defendant while in custody, where an issue arose whether the officer was a “person in authority” for the purpose of the New South Wales statutory manifestation of the rule, s 410 of the Crimes Act 1900.  Wood J with whose reasons the other members of the Court agreed considered the meaning of the expression “person in authority” but by reference to the question of whether it was relevant to look at the impression or perception which the accused might have had in relation to the person rather than the person’s actual authority: p 228.  This was because the officer concerned was not a person having any powers of investigation or arrest or any authority to intervene in relation to the prosecution. 

33. [33]
    Reference was made to Thompson and Wilson, but only to say that there was no express reference to the perception of the accused, but after referring to Todd and Deokinanan his Honour said at p 229 that a passage in the former judgment:

“Provides support for the view that it is not just the office held by the maker of the statement, or his interest in the offence, which is determinative of whether he is a person in authority.  Rather that will depend on the appearance his office or involvement might convey to the accused and in particular his ability to confer an advantage in return for a confession or to occasion harm in the absence of a confession.  As a matter of principle, it seems to me proper to have regard to the impression conveyed by the person offering the inducement.  … 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 elicit 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 who 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.”

34. [34]
    It was with this background that the issue arose in the Court of Appeal of Queensland in R v Burt [2000] 1 Qd R 28.  This was also a case involving a pretext phone call by a complainant, the daughter of the appellant, in which she pressed him to speak about things which at the time of the conversation had occurred a long time earlier.  The appeal concerned the question of whether evidence of this conversation ought to have been excluded.  White J, with whom the other members of the court agreed, noted the history of the matter, that there had been a conversation (not recorded) prior to her decision to make a complaint to the police, and that after she had made a complaint the police arranged a further conversation which was recorded.  In the course of the conversation the complainant said that she would not see him until he had admitted to what she said he had done to her, and this was relied on as an inducement made by a person in authority. 

35. [35]
    The passage I quoted from Scofield (supra) was relied on.  Her Honour said at [34]:

“Taken in isolation that may seem well outside the accepted meaning of ‘person in authority’ but it needs to be considered not only in the circumstances of the case but also by reference to the authorities mentioned by his Honour.”

Her Honour referred to McDermott, and noted at [39] that:

“The preponderance of authority suggests that the impression or perception which the confessionalist might have in relation to the person rather than the person’s actual authority objectively ascertained will determine whether the person is a person in authority for the purposes of the rule or the legislation.”

36. [36]
    She then referred to the test in Todd, and the decision in Deokinanan, and the decisions in Thompson, Wilson, Jonkers and Dixon before stating at [45]:

“While 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.  There is nothing in the fairly guarded responses by the appellant which suggested that he had any inkling or apprehension that his daughter was a person who might put ‘the wheels of prosecution’ in motion.  This was quite a different relationship in fact from those in Thompson, Wilson, Scofield and Jonkers where the inequality in the relationship, in terms of the power of the person to whom the admissions were made was apparent to the confessionalist.  Even the persistent accusations by the complainant were no more and, I would suggest, appeared to be no more to the appellant, than the stubbornness of a child.  I would not conclude that the complainant was a person in authority in respect of the appellant for the purposes of s 10.”

37. [37]
    I shall return to this passage later, but note that her Honour went on to consider the question of whether the admissions should have been excluded as a matter of discretion on the ground of unfairness. Her Honour had noted at [47]:

“The clear flavour of the conversations is at least of equality between the two.  There was no suggestion by the appellant when he gave evidence that any pressure by the complainant caused him to say what he did.  Rather he sought to explain the statements away as not being admissions of any improper conduct of the kind upon which the charges were based.”

38. [38]
    Her Honour went on to say at [49]:

“The appellant contends that the inducement offered by the complainant was such that it would be unfair to have allowed his evidence to go before the jury.  There was no unfair inducement in my opinion extended by the complainant to her father such as to cause him to make admissions against his interest.  The tone of the conversation was, as I have commented, at least of equality if not suggesting some level of control by the appellant.  The learned trial judge appropriately left the question of inducement to the jury when assessing the conversations.”

39. [39]
    Her Honour then dealt with an argument that the conversations should have been excluded because it included undue repetition of her allegations of wrong doing which would have prejudiced him in the eyes of the jury. She noted that the trial judge had been prepared to exclude parts of the conversation where the complainant repeatedly put propositions to the appellant followed by denials, but defence counsel at the trial preferred to have the whole conversation in, in order to balance the admissions with the denials. Her Honour held this was not open to criticism and added at [51]:

“Although it is unlikely that the complainant would have been permitted to give her evidence in a trial in the manner in which she spoke to the appellant, there was nothing improper involved in her insistence on the appellant’s wrongdoing and no unfairness was accorded to the appellant in admitting the conversation.”

40. [40]
    It is worth noting some additional remarks by Thomas JA. At [3] he said that the recording of the conversation was a result which courts have encouraged police to produce so as to eliminate allegations of fabrication which had arisen so frequently in the past, and that:

“In this case the end question is the reliability of the appellant’s responses to his daughter’s goading and encouragement to speak about the past.  The collective wisdom of a jury is almost certainly the best touchtone for evaluating the reliability of such statements given the whole of the circumstances under which they were made.”

41. [41]
    His Honour went on at [7] to express the view that the decisions in Scofield, Jonkers and Dixon had:

“Extended the ambit of the term “person in authority” so that it readily includes persons such as complainants in sexual cases.  In my view these decisions unduly expand the ‘involuntariness’ ground to take over other areas under which the courts have ample and more relevant powers to exclude such statements.  The trend of these cases is to impose a load upon this rule that it was not designed to carry, and they ought not to be followed.”

42. [42]
    He went on to agree that the issue had to be determined from the viewpoint of the accused person, but added at [8]:

“In circumstances such as those in the present case, I am quite unable to see how this accused man could have regarded his daughter from whose company he had been separated since 1978 when she was 14 years old, as ‘a person in authority.’  The artificiality of the concept would produce considerable difficulty in application of the principles under the strand of the law.  Even if she were to be regarded as a secret police agent at the time (which I do not think she was) she cannot have been seen by the appellant as a person having any authority over him whatsoever.  Of course every human being has the capacity to influence another, but I do not think that factors of that kind are the basis of this particular rule of exclusion of otherwise admissible evidence.  If such evidence is to be excluded it must surely be on the basis of unfairness or impropriety.”

43. [43]
    His Honour also considered the question of whether there was unfair trickery involved in obtaining the admissions, and concluded that he would not regard this particular exercise as unfair or improper: [13]. His Honour noted at [11] that:

“The benefit of the recording is that the jury has an accurate record to evaluate with the benefit of a full overview of the situation, including any manipulative conduct of the complainant.”

His Honour also noted at [12]:

“There is little doubt in the present case that the complainant asked questions of the appellant which she hoped would produce admissions supporting the complaint that she had made.  In that sense there was elicitation which is a factor that is given considerable weight in Swaffield.  However, I find it difficult to characterise this occasion as an unfair trick, and equally difficult to regard the complainant as a ‘state agent’.”

What occurred was said to be within the broad category of cases recognised as acceptable deception by law enforcement officials: [13].

44. [44]
    In R v Kassulke [2004] QCA 175 one of the issues on the appeal was whether evidence of an admission made to hospital doctors by the appellant after he had been taken to the emergency department of the Princess Alexandra Hospital ought to have been excluded, on the ground that it was inadmissible under s 10 of the 1894 Act, or alternatively as a matter of discretion.  Davies JA, with whom Williams J agreed, referred to what was said by Dixon J in McDermott about “person in authority” and said at [18]:

“When Sir Owen Dixon defined the expression ‘person in authority’ as including officers of police and the like the prosecutor and others concerned in preferring the charge,^[21] it seems to me that he intended to limit that expression to those persons exercising or purporting to exercise the authority of the State in the investigation or prosecution of a charge of a criminal offence.  The reason for this was no doubt that one of the two rationales for the principle, the more modern one, is the deterrence of State officers from engaging in conduct of the kind specified.”

45. [45]
    His Honour went on to note that at [19] that there was authoritative support to exclude a person whom the accused could not reasonably have perceived as a person in authority such an undercover police agent. He said at [20]:

“There is also authoritative support for the view that the above definition should be expanded, by the notion of the reasonable perception of the accused, to include any person whom the accused reasonably believed was a person who had some power to control or influence the proceedings against him.^[22]  On this view it would not matter whether the person in question was, objectively, a person in authority within Sir Owen’s definition.  There may be many persons whom the accused might reasonably perceive were persons who had some power to influence proceedings, in the sense that such proceedings might only commence if that person complains, but who were not persons who in fact had the power to exercise the authority of the State in the investigation or prosecution of the accused.”

46. [46]
    His Honour went on at [21] to note that the rationales for the principle were not served by that extension, and that the likely explanation for this view was historical rather than rational; complainants were regarded as persons in authority are because they in fact had the power to initiate, stultify or prevent a private prosecution. Ultimately it seems to me that his Honour did not either expressly endorse that approach, or expressly overrule it, being content to point out that even on that extended view the doctors in question were not persons in authority, nor could there have been any relevant perception to that effect by the appellant [22].^[23]

47. [47]
    The issue of confessions to undercover police officers came before the High Court in Tofilau v R (2007) 231 CLR 396.  In four cases defendants had been tricked into making confessions of murder by undercover police officers pretending to be criminals, who held out a capacity to stifle the police investigations with the assistance of a corrupt police officer, and entry into their criminal gang, as inducements to the defendant to provide full details of the offence which each had committed.  The provision of this information was recorded, and, after they were then confronted with these recordings, the defendants generally made further admissions.  It was alleged that the confessions should have been excluded on the ground that they had been made to persons in authority and they were elicited by promises or inducements of advantage.  The High Court however held that what mattered was that there was no perception on the part of the defendants that they were speaking to persons in authority, and that the confessions were therefore voluntary in the relevant sense and admissible.  One appellant also alleged that his confession ought to have been excluded as a matter of discretion, and that argument was also rejected by the majority.

48. [48]
    Most of the judgments contain some analysis of the history of the rule of exclusion on the basis of involuntariness, and the concept of “person in authority”. Gleeson CJ referred to a Canadian authority^[24] and concluded at [13] that, as held by the Supreme Court of Canada, in circumstances where the person making the confession or statement believed that he was being offered inducements by criminals who were in a position to influence certain corrupt police officers, the State’s coercive powers were not engaged, and therefore the appellants did not believe the makers of the inducements to be persons in authority, or to be acting as agents of persons in authority:

“Their supposed capacity to exercise corrupt influence over others who were persons in authority does not alter their character as understood by the appellants.  A representation (true or false) as to a capacity to influence corrupt officials could be made by anybody, but it would not constitute the maker of the representation a person in authority.”

It could be said that the same applied to a capacity to influence uncorrupt officials, by giving or withholding co-operation.

49. [49]
    Gummow and Hayne JJ, in a joint judgment, referred to the three separate enquiries in the passage quoted above, and said that the first question requires examination of whether the statement in issue was made to a person known or believed by the speaker to be a person in authority.

“In the present cases, because each appellant neither knew nor believed that those to whom he was speaking were police (or other persons having lawful authority to affect the course of the investigation of or prosecution for the offence to which the confessions related) the particular rules about confessional statements to persons in authority were not engaged.”

50. [50]
    Their Honours then gave some consideration to the origin and content of the applicable principles, and discussed the development of this principle, and concluded at [45] that, because of the development of the common law particularly in relation to the concept of basal voluntariness,

“It is neither necessary nor appropriate to extend the concept of ‘person in authority’ beyond those persons known or believed by the confessionalist to have lawful authority to affect the course of the investigation of or prosecution for the offence in question.”

This was seen in the context of whether it was sufficient if there was a practical capacity to influence the course of the investigation, other than by the exercise of lawful authority.  That was the very point considered by Lord Parker in Wilson, where it was acknowledged that the home owner concerned did not have lawful authority to control the prosecution, but was nevertheless a person in authority because he was “the person most interested in the matter.”

51. [51]
    In a joint judgment Callinan, Heydon and Crennan JJ considered from p 470 the question of whether the undercover police officers were persons in authority. Their Honours referred to the formulation of Dixon J, and noted the proposition of Davies JA in Kassulke (supra), which, they said at n. 314:

“Leaves out another type of ‘prosecutor’ – the victim of the crime who, where private prosecutions are possible, could prosecute the crime, and who, where they are not, or where they are not being undertaken, is normally the trigger for the police force to investigate the crime and for the prosecuting authorities to institute a prosecution.  It is not necessary in this case to consider whether this suggestion, which would involve a radical departure from the many cases which have included ‘the prosecutor’ in the sense described within the category ‘persons in authority’ for nearly two centuries, is justified.”

52. [52]
    Their Honours did not identify the authorities said to extend back for nearly two centuries. There were certainly cases which deal with the position of a person who was the prosecutor and therefore had lawful authority over the prosecution, or who was sufficiently closely associated with the prosecutor to be perceived as being associated with that authority, as persons in authority, but that is a very different thing, although there is certainly room for confusion in cases where the victim is also the prosecutor. Their Honours however went on to say at p 474, apropos a submission on behalf of the Director of Public Prosecutions, that his definition may be too narrow because it excluded what Dixon J called “the prosecutor”, though that was not a question which needed to be decided in that appeal.

53. [53]
    Accordingly, the point was expressly not decided by their Honours. They went on to identify the critical difference between the parties at [267]:

“The other different between the test advocated by the appellants and that advocated by the Director is crucial.  It concerns what the reasonable perception of the person confessing is of the relationship between the alleged person in authority and the conduct of the prosecution.  For the appellants, the reasonable perception of the relationship need only be that the alleged person in authority has a practical ability to influence the conduct of the prosecution, whether lawfully or not.  For the Director, the reasonable perception of the relationship must be that the alleged person in authority has an ability to influence the conduct of the prosecution deriving from lawful authority.  The difference is critical because the appellants did not have any reasonable basis on which to believe that the undercover police officers were acting pursuant to lawful authority.”

54. [54]
    Their Honours then considered the history of the inducement rule, and the “person in authority” requirement, which was said to have developed somewhat later, only being firmly established in 1839: p 480. Their Honours however did not turn up any authoritative statement as to the scope of the concept, at least prior to 1967, which might have been overlooked in Wilson.  At [284] their Honours recognised that there had been a debate in Australia about the extent of the rule, particularly as to whether it extended to a mother or other person in loco parentis to a complainant of a sexual offence.

55. [55]
    From p 487 their Honours analysed the arguments for the appellants, beginning with one based on R v Dixon.  Their Honours said that the definition adopted by Wood J did not assist the appellants, first because that case was concerned with completely different facts, second because there had been favourable reference to the decision in R v Todd, where the facts were similar to the facts in Tofilau, and at [297-8]:

“Thirdly, when Wood J spoke of the person in authority being seen in a certain light by virtue of his ‘position’, the context suggests that he had in mind the person’s official position, carrying rights and functions authorised by law, as distinct from the person’s de facto power.  For those reasons, when Wood J’s definition is read in context, it can be seen not to support, and to differ from, that which the appellants propound.  Under Wood J’s definition mere ‘ability’ or mere ‘capacity’ is not enough: it must be lawful capacity.”

56. [56]
    Their Honours then went on to consider the argument based on what Davies JA said in Kassulke at [20], cited above, but said that when the judgement of his Honour was read as a whole he had rejected the test described in that passage: [304]. That followed from what he said thereafter.  They also noted that the three cases cited as providing “authoritative support” did not do so.  The first was R v Hodgson [1998] 2 SCR 449, where it was said that the real test adopted by the majority was “whether the accused reasonably believed the receiver of the statement was acting on behalf of the police or prosecuting authorities.”  Their Honours continued at [301-2]:

“The second authority was R v Dixon.  There Wood J said that:

‘‘a person in authority’ included any person who ‘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.’

But to be seen as having a particular ‘position’ is different from being seen as having ‘some power to control or influence the proceedings’: the former test is much narrower than the latter.

The third authority was R v Burt, and in particular some statements of Thomas JA and White J.  They do not support the test proffered by the appellants.  Thomas JA’s observations centre on whether ‘the accused would see the person asking the questions as a person in authority’.  And White J’s also centre on ‘authority’ rather than ‘some power to control or influence the proceedings’.”

57. [57]
    Their Honours considered the other arguments advanced by the appellants, and rejected them, concluding at [323]:

“The Director is correct in submitting that a person to whom an accused has made admissions cannot be a person in authority at least unless that person is perceived by the accused, on reasonable grounds, to have the lawful authority of the State to investigate the circumstances.  On that test, the undercover officers were not persons in authority, because each appellant lacked reasonable grounds for thinking that the undercover officers had lawful authority to investigate the offence of which that appellant, it was thought, was guilty.  The only reasonable belief which the appellants could have had about those persons was that they were gangsters, not authorised police officers, and that, as the Director submitted, ‘they do not call upon the power of the State.  They call upon the power of evil.’  Accordingly, the admissions of the appellants were not the result of inducements rendering them inadmissible.”

58. [58]
    Accepting that their Honours expressly did not decide the issue of whether the victim of the crime was a “prosecutor” for the purposes of being a “person in authority”, it is difficult to see how this analysis would be consistent with a conclusion that a victim of crime was, at least outside the exceptional case where the victim brought a private prosecution. The investigating police have a lawful authority to decide whether to investigate, arrest and charge a person. The complainant has no more than a practical capacity to influence the investigating police in the performance of those functions. So much was recognised in Wilson, where the conclusion that the complainant was a person in authority was based, not on the existence of some form of authority or power, but on the fact that person had the greatest interest in the matter, being the person most directly involved personally.  But the existence of that interest does not give the person any authority or power, and that in my opinion is the crucial distinction between a complainant and a person in authority. 

59. [59]
    That is only reinforced by the analysis of R v Dixon as being dependent upon a perception of lawful authority arising from the officer’s position, rather than a perception of de facto power.  Although their Honours reserved the question of the complainant, in my opinion if the process of reasoning applied by their Honours in this case were also applied to the case of the complainant the conclusion would be that the complainant was not a person in authority.  I accept however that their Honours cannot be taken as having stated authoratively that that is the situation.

60. [60]
    There are therefore three possible answers to the question of whether a complainant is s person in authority. On the approach adopted by three of the majority judges in Tofilau, the question depends on whether the State’s coercive power is engaged (Gleeson CJ) or whether the person to whom the admission was made was believed to have lawful authority to affect the course of investigation of or prosecution for the offence in question (Gummow and Hayne JJ).  A complainant is not a person who engages the authority of the State, and, although the complainant has a lawful capacity to affect the course of the investigation or the prosecution, the complainant does not have authority to affect it.  That was also the view of Thomas J in Burt, a view endorsed by the Victorian Court of Appeal in Tofilau.^[25]

61. [61]
    The second possibility is what might be described as Lord Parker’s view, that the complainant is a person in authority because he or she is the person most interested in the matter. Leaving aside whether that view is logical, or consistent with other cases, it stands as a decision of the Court of Appeal in England, and has been followed by single judges in Australia.^[26]  At least it has the virtue of being unambiguous: all complainants are persons in authority, because they are the ones who possess the power to place the wheels of a prosecution in motion: Scofield p 200, where again the approach was that every victim of a criminal offence was a person in authority. 

62. [62]
    The third possibility is an intermediate position: some victims are, and some are not. That was the position of the majority in Burt, and I am bound by that conclusion.  The issue in the present case is, was this complainant one, which depends on the test to distinguish a victim who is from a victim who is not.  It is not very helpful to say that what matters is the impression upon the mind of the defendant, unless I know what impression I am to look for upon that mind.  Does it depend on whether the defendant might reasonably conclude that the complainant was a person who might put the wheels of prosecution in motion?  Any person claiming to be the victim of a criminal offence is such a person, because such a person can complain to the police, so necessarily anyone who asserts that he or she is a victim of a criminal offence gives reasonable grounds for a belief that that person might do so.  Does it depend on whether the defendant in fact believed that the complainant was going to put the wheels in motion, that is, was going to complain to the police?  The difficulty with that analysis is that it appears to be inconsistent with what three High Court judges said in Tofilau, that her Honour’s remarks “centre on authority” rather than “some power to control or influence the proceedings.”

63. [63]
    Does it follow because there was nothing in his responses to indicate that he was treating her as a person having some authority in relation to a prosecution? The comment about the power inequality in the relationship between the defendant and the person to whom the admissions were made is understandable as a concept, but it is difficult to see how it is a basis for distinguishing the cases referred to, except for the case of Thompson where the relationship was one of master and servant.  On the other hand, it is difficult to detect any imbalance in the power of the relationship in Wilson, at least prior to the point where the defendant in fact made the admissions to the homeowner, and any imbalance thereafter arose from the capacity of the owner to put that information before the police.  In Scofield the confessions were induced by the defendant’s wife, from whom he was separated, who had told him that he could not see their children until he had gone to the police and admitted what he had done, which he did.  It is difficult to see that there was any power imbalance in the relationship there, except in respect of her capacity to deprive the defendant of contact with his children, which, as it happened, was the very lever which was relied upon in Burt as constituting the inducement which produced the admissions. 

64. [64]
    In Jonkers there was a formal legal relationship between the person to whom the confession was made and the complainant, but there is nothing to suggest that there was any particular relationship between her and the defendant, although the circumstances of the alleged offending suggest that he must have been at least a friend of the family; he was part of a group visiting a swimming pool which included the complainant who had been placed with a foster family, the foster parents and other young people.  There was certainly nothing in the judgment to indicate that there was any inequality in the relationship, though it was noted that the person who was said to have procured the relevant confession had forcefully asserted to the defendant that she believed the complainant’s complaints and did not believe his denials, and that he should admit what he had done to the girl and apologise, and that about 20 minutes later he came back and did so.  Again, I find it difficult to detect the relationship the absence of which her Honour found significant.  It is all very well to conclude that what matters is the power or apparent power of the person to whom the admissions were made, but it is difficult to see how that was a basis for distinguishing Wilson, Scofield and Jonkers.

65. [65]
    All I can say, and even this without any great degree of confidence, is that it emerges from paragraph [45] that the mere fact that a person is a complainant does not mean that she is a person in authority, and it depends upon the impression upon the mind of the defendant of the power of that person in respect of the defendant, so that there is an inequality in the relationship between them, in terms of power. But exactly what impression on the defendant’s mind produces the necessary perception of inequality of power in the relationship is unclear to me from that paragraph.

66. [66]
    The matter is also not resolved by the first sentence of the judgment in Davies JA in Kassulke, given the three High Court judges said that that test formulation was not stated authoritatively in that case, nor was it supported by the authorities cited.  Accordingly, it would not be appropriate for me to treat that statement of the test as an authoritative statement of the Court of Appeal binding upon me.  Accepting that I am bound by the decision in Burt, including whatever test is laid down in the majority judgment for determining when a complainant is a person in authority, I am left in the position where I am unable to determine from that judgment what that test is.  The decisions in Wilson, Scofield and Jonkers were distinguished for some reason, but I cannot understand why, either from reading the reasons in Burt, or from an analysis of those decisions.

67. [67]
    There are plenty of cases where the Court of Appeal has approved the reception of pretext phone calls to complainants, without it seems to me touching on the issue of whether the complainant was a person in authority. For example, in R v B [2000] QCA 19 the court refused to interfere with the decision of a trial judge not to exclude the pretext phone call on the discretionary ground, but s 10 was not raised, presumably because there was no threat or promise.

68. [68]
    Overall therefore I am left in a position where the complainant is not necessarily a person in authority because she is a complainant, and I am unable to see any feature of the relationship between her and the defendant which would produce an imbalance of power in her favour, or which would give her any authority in respect of the prosecution, or otherwise authority over him, or produce any perception of that in him. In my opinion it follows that this complainant was not a person in authority, and therefore the conversation is not to be excluded under s 10, or the similar common law rule.

Basal voluntariness

69. [69]
    This was also addressed by the judges in Tofilau.  Gleeson CJ concluded that the statements by the appellants in that case were voluntary because their wills were not overborne: [22].  He rejected a submission that the statements were involuntary because the statements would not have been made had there been a fully informed appreciation of the possible consequences, nor because there was an attempt to gain information in circumstances where the appellants, had they been aware of what was going on, would have remained silent.  It was said that the mere fact that the statements had been procured by deception was of no assistance because the deception practiced was not such as was likely to elicit a false confession: [17]. 

70. [70]
    Gummow and Hayne JJ said that the question of basal voluntariness depended on reliability, so that the relevant enquiry was whether the circumstances in which the evidence was obtained fall into the category of cases which the law classifies as so likely to produce unreliable evidence that the evidence should be excluded from consideration by the tribunal of fact: [54]. There was further discussion of the requirements at [60] – [64]. I need not enlarge upon these passages, which really require citation at some length, in circumstances where this particular head was not directly relied on in this case. In Tofilau their Honours rejected the notion that there was effectively no choice but to speak in circumstances where the appellants had been acting under some misapprehension or mistake induced by the person to whom the confession was made, and even though there might have been seen some imbalance of power between the parties concerned. 

71. [71]
    The remaining majority judges considered the issue of basal voluntariness from [325]. Their Honours concluded that the test laid down by Dixon J in McDermott (supra) was not met in that case.  There was no use or threat of violence, nor any use or threat of any illegal act directed against the appellant or any third party.  They did threaten to procure an illegal act but never had any intention of doing such a thing, and they did lie to the appellants but not in a way that was intrinsically unlawful.  There was no duress or intimidation: [375].  The undercover police were at times importunate, and applied pressure by their questioning, but they did not go so far that it could be said that the will of any appellants was overborne: [376].

72. [72]
    Applying that approach here, it seems clear that the will of the defendant was not overborne in either of these conversations, or for that matter in the Facebook messages. There was some persistent questioning by the defendant in the second conversation, but the fact that the defendant persistently denied penile penetration, and did not admit that digital penetration had occurred, shows in my opinion clearly that he had and was exercising a choice to speak and a choice as to what he would say. This finding is however, really by way of completeness, since this ground was not specifically relied on by counsel for the defendant.

Discretionary exclusion

73. [73]
    The leading case in this area is R v Swaffield (1998) 192 CLR 159.  At page 189, Toohey, Gaudron and Gummow JJ in a joint judgment identified three categories of discretionary exclusion: That it would be unfair to the defendant to admit the statement, that considerations of public policy make it unacceptable to admit the statement, and that the prejudicial impact of the evidence is greater than its probative value.  As to unfairness, their Honours said that, while unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone: [54]. Later, at [78], their honours pointed out that unfairness could also arise because admission of a confessional statement would result in the accused being disadvantaged in the conduct of his defence; an example was where an accused had admitted to having made admissions of guilt to others, and it was said that it would be unfair to admit this statement if the persons to whom the admissions were made were not called as witnesses.  The second was a discretion to exclude evidence procured by unlawful or unfair means, where it is said that the public interest in the protection of the individual from unlawful and unfair treatment outweighs the public need to bring to conviction those who commit criminal offences: [57]. 

74. [74]
    Dealing with the issue of unfairness, their Honours considered some recent decisions from the Supreme Court of Canada, which had focused on circumstances where a person who had exercised his right not to talk to the police had been spoken to by either an undercover police officer, or a friend who had by arrangements with the police been fitted with a recording device, and to whom the defendant had made admissions. Their Honours said at [91]:

“The notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion.  In the light of recent decisions of this court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks the accused’s freedom to chose to speak to the police and the extent to which that freedom has been impugned.  Where the freedom has been impugned the court has a discretion to reject the evidence.  In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances.  Those circumstances may point to unfairness to the accused if the confession is admitted.  There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, evidence has been obtained at a price which is unacceptable having regard to prevailing community standards.  This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations.”

75. [75]
    So violation of an accused’s freedom to choose to speak to the police by deception triggers the discretion, but does not require it to be exercised. Nevertheless, their Honours went on, specifically in relation to the appeal in Swaffield, to adopt the Canadian approach that this is likely to be in violation of the choice whether or not to speak, unless the admissions were “quite unelicited”: [97]  In that case they had been elicited, so the Court of Appeal was right to exclude them.  In relation to the other appellant, Pavic, in that case the conversation was with a friend who had been provided with a recording device by the police who had requested the friend to speak to the defendant.  On this basis the friend was said to be an agent of the state: [100], a proposition which subsequently some courts have obviously found difficult to swallow.^[27]  In that case the trial judge had concluded that the making of the admissions was not the result of statements in fact made by the friend to the defendant, and there was no sufficient reason to interfere with the exercise of discretion by the trial judge not to exclude the evidence.^[28]

76. [76]
    I have referred earlier to the approach to discretionary exclusion in R v Burt (supra).  In Tofilau (supra) one of the appellants challenged before the High Court the exercise of the discretion not to exclude the evidence of the confessions to the undercover police on discretionary grounds.  In respect of this point, which was also rejected by the majority of the High Court, the Chief Justice agreed with the joint judgment of Callinan, Heydon and Crennan JJ.  The circumstances surrounding the making of the admissions in that case were analysed at [413]; it is unnecessary to detail all of them, most of which are not relevant here, but it is significant, in the light of the comments in Swaffield, that in this case it was accepted that there had been active elicitation of the admissions from the defendant during the undercover operation.  A submission that the process was designed to circumvent the appellant’s right to silence was rejected, notwithstanding that the adoption of the approach laid down in Swaffield by the majority would seem to me to indicate that the fact that the confessions had been elicited meant that the discretion ought to have been exercised against their reception. 

77. [77]
    It seems to me that, in the light of this decision, the approach in Swaffield requires some modification.  It was perhaps a cautious modification, as indicated by the comments at [416], but it does indicate that the mere fact that there was some “elicitation” will not necessarily result in the admission being excluded even if the person eliciting could be seen as an “agent of the state”.  It seems to me that in Tofilau the more important consideration was that there was nothing in the circumstances of that case to cast any doubt on the reliability of the admissions that were made, because the process, though calculated to procure a confession, was calculated to procure a true confession; given the nature of the subterfuge, there was no reason why it would have worked if the appellant had not in fact committed the relevant offence.  It was not a case of a criminal boasting with a view to gaining status in the criminal community, but providing the sort of details which could be checked out about the offence. 

78. [78]
    There have been plenty of cases where there have been pretext phone calls with complainants in sex offence matters where the calls have been admitted into evidence, and not excluded on the discretionary ground, and where that conclusion has been upheld on appeal.^[29]  In so far as there are broad considerations of whether this is a form of investigation which is inappropriate, so that a public policy consideration would require exclusion, in my opinion in the light of those cases plainly the discretion should not be exercised in favour of the defendant on that ground.  There is also nothing in the conversations recorded which amounts to prejudicial material, so the third ground does not arise. 

79. [79]
    In R v B [2000] QCA 19 the question was whether admissions made in a recorded conversation with B who had been a friend of the defendant, and to some extent a friend of the complainant, ought to have been excluded.  The Court of Appeal held that there was no miscarriage of justice by the trial Judge because of a failure to exclude the evidence.  McMurdo P referred to the decision in Swaffield, and noted that the relevant facts had some similarities with Pavic: [67].  She continued:

“The major issue for consideration is unfairness to the appellant and requires a consideration of all relevant circumstances.  Prior to being charged the appellant had already made admissions to B of sexual impropriety with the complainant.  … In respect of [certain] offences, he did not exercise his right to silence but positively denied involvement to police.  Although he did not know B was acting as a police agent, she did not tell lies to induce his admission; any trickery was limited to the fact that unbeknown to him, she was an agent for the police.  The conversation breached rule 2 of the Judges rules; the appellant had already been charged with the offences and was warned of his right to remain silent.  On the other hand, the appellant was not in custody and was in an environment in which he felt comfortable and for which he could freely withdraw. … There is nothing to suggest that anything in the way the admissions were elicited created a danger as to their reliability; the appellant appeared to have chosen to speak with B although it was not an informed choice in that he was unaware she was acting as an agent for the police.”

80. [80]
    Her Honour continued at [68] – [69]:

“The crucial issue is whether the admissions were made in the course of conversation or an interrogation.^[30]…  Although B asked questions of the appellant, this was done in a conversational rather than interrogational manner and the appellant was selective in his admissions.  These facts do not necessitate discretionary exclusion. [69]  There are no public policy grounds requiring the exercise of the discretion in favour of excluding the confessional statements to B.  The compliant made and the charges brought related to serious offences which are notoriously difficult to prove because of the secrecy which ordinarily surrounds their commission.  I am not persuaded that obtaining evidence in this manner infringed public policy considerations so as to require their exclusion; nor was that approach taken by the majority in Swaffield and Pavic.”

81. [81]
    Davies JA, with whom Williams JA agreed, said there were four reasons why evidence of the admissions to the witness were rightly admitted. First, the admissions were made more in the course of conversation than pursuant an interrogation by the witness. Second, the admissions B was asked to obtain were admissions she said he had previously made to her. Third, there was no reason to doubt the reliability of them. Fourth, this was not a case whether the appellant having been earlier cautioned had chosen not to speak to the police; he had willingly spoken to them but denied having intercourse with the complainant. Any failure to administer a caution before this conversation was not in protection of the right to remain silent; “it may, at least at this stage, be described, not too inaccurately, as a right to lie.” In combination these factors justified the admission of the evidence.

82. [82]
    In R v Cavalli [2010] QCA 343 it was submitted that there was a miscarriage of justice at the trial because of the admission of a pretext phone call, though that had not been objected to at the trial.^[31]  Reliance was placed on the approach in Swaffield, and it was said that the questioning was in the nature of an interrogation by the complainant so that following the approach in that case and the Canadian authorities referred to, the conversation was inadmissible.  No reference is made to Tofilau.  The appeal was dismissed.  McMurdo P noted that this was not a case where the conversation was arranged in order to overcome a previously exercised right of silence, and there was “nothing in the relationship between the appellant and [the complainant] 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.  … She gave prompts in her reference to the events of the night in question, to which the appellant responded, apparently freely and at length… The appellant was not overborne or confused, although he was mildly weary at different points in the conversation.” 

83. [83]
    R v MBV [2013] QCA 17 there had been a pretext telephone call, the relevant part which was set out at [6] in the judgment of McMurdo P.  When the complainant spoke about his having “touched me and stuff” he responded “don’t go there,” and when asked, would he get into trouble, replied “anybody would who’d done things like that.”  There was an issue about whether there was an unequivocal admission in this, but it was said that this was a matter for the jury as the evidence was capable of amounting to an incriminating response.  There was no complaint about the directions to the jury: [15].  In relation to discretionary exclusion, her Honour noted that the complainant was not in a position of authority or dominance over the appellant at the time of the relevant conversation, which was apparently before the appellant had been spoken to by police or been charged, and her Honour said that she could see “nothing  inherently unfair about the circumstances surrounding it or anything rendering it potentially unreliable so as to warrant its exclusion”: [23].  Not only would it have been a sound exercise of the discretion not to exclude it, her Honour would not have excluded it. 

84. [84]
    It seems to be clear from these authorities overall that the mere fact that there is some questioning or interrogation or elicitation of the evidence by the other party to the conversation does not now have the significance attributed to it in the joint judgment in Swaffield.  Nor does placing psychological pressure on the defendant, provided that it is not likely to lead to an unreliable confession.  The mere fact that deception is used by the complainant will not mean that the subsequent admissions must be excluded, though whether it is used is a relevant consideration. 

First conversation – submissions

85. [85]
    The defendant did not take issue with the voluntariness of anything said in the first conversation, but submitted that there was good reason to doubt the reliability of what was said by him, on a number of grounds. The first was that he did not have English as his first language. He was born in Azerbaijan, and was in Australia as a student with the support of his Government.  It was submitted that it was apparent from what was said at the beginning of the phone call by the defendant that he was having difficulties in understanding exactly what the complainant was saying, and that this continued, up to the point where eventually he said he could not understand her.  In these circumstances, there would have to be real doubt as to whether he had a proper understanding of what it was that she was putting to him, and whether he was properly expressing what he was seeking to say in reply.

86. [86]
    It was also submitted that this was aggravated by the way in which allegations were put and questions were asked in a composite form, so that there were difficulties about interpreting just what he was agreeing to when he appeared to express some agreement, and what he was disputing. It was also submitted that the complainant had repeatedly cut off the defendant’s answers, so that it was not known whether statements which on the surface appeared to be some sort of admission might have been qualified by things that the defendant never had the opportunity to say.

87. [87]
    It was further submitted that the conversation fell within the test adopted in R v Swaffield (1998) 192 CLR 159 from the judgment of the Supreme Court of Canada in R v Broyles [1991] 3 SCR 595.  Because the complainant spoke to the defendant at the instance of the investigating police she was to be regarded as an agent of the State, and the admissions were elicited by what was in substance interrogation of the defendant by the complainant.  The complainant had set out to obtain admissions and attempted to do so by way of repeated and aggressive assertion of her version of events, in circumstances where the applicant had been denied a proper opportunity to respond.  It was also submitted that the recording of the conversation was dominated by the complainant’s forceful and to some extent repeated assertions of her version of events, in a way which she would not be allowed to do in evidence-in-chief, so that in practice admitting the telephone call was simply a way of allowing the complainant to assert again her version of events. 

Consideration – first conversation

88. [88]
    I listened to the recordings of both conversations, and in that way was able to make some assessment of the extent to which the defendant appeared to be able to communicate and answer responsively when asked questions in English.^[32]  It did appear at times that his ability to express himself in English was less than perfect, particularly when he was apparently under pressure in answering, but there was little indication of an inability to understand what was being said to him, most of which was essentially quite straight forward and asserted clearly, and sometimes repeatedly.  The defendant is in Australia as a student,^[33] an activity which suggests a reasonable level of intelligence and a reasonable capacity to understand English, including discussion in English about much more sophisticated and abstract matters than what was discussed in these conversations.  I accept that he had some problems, but there is nothing to indicate to me that any answers relevant as being admissions or potential admissions were the product of some misunderstanding.  To the extent that the first statement suggests some difficulty with expressing himself in English, that will be apparent to a jury, which will be in a position to assess whether that gives rise to a reasonable doubt as to just what it is he is admitting to. 

89. [89]
    It is true that the questions asked or propositions put to him were sometimes put as a series of items of discrete conduct or events, but I consider it is a matter for a jury to determine whether they have any reasonable doubt about what it is that the defendant was admitting to (if anything) by his responses, and to what extent they can treat those as amounting to acceptance of the complainant’s version of the background to the actual offence; it is notable that in the first conversation the complainant never got to the point of actually complaining about penetration. I regard some of his statements as capable of being treated as relevant admissions.

90. [90]
    As to whether the conversation was in substance an interrogation, it seems to me that it did not have that tone at all. Although initially the complainant was asking the defendant why he thought she was upset, when he asked her to tell him why she felt like that, she responded by doing exactly that. It was not so much a process of interrogation about what happened, as a process of the complainant complaining, sometimes forcefully, about her version of events, in a way which matched naturally the role she was playing in the conversation, of a woman who was asserting that she had been the subject of improper sexual conduct, and was confronting the defendant with those assertions. This was I think underlined by the fact that at times she cut off his answers, and that she terminated the call once the defendant said that he could not understand her. I do not consider that that this should be characterised as being in substance an interrogation.

91. [91]
    There was also nothing in the relationship between the parties which was in anyway exploited by the complainant to extract the statement. There was no relationship of trust between them, and it is not apparent that at this stage the defendant was obligated or vulnerable to her in any relevant way. It was submitted that his vulnerability arose because of his difficulty with English and the fact that he was a foreign national with no right to permanent residence in Australia, but there was nothing in the content of this conversation which suggested to me that he was in this way being pressured or manipulated into making admissions that would otherwise not have been made. Indeed in the first conversation he demonstrated a capacity to deny some things that were put to him, and to make assertions of matters inconsistent with what was being put to him by the complainant, which is inconsistent with any suggestion that any vulnerability of this nature was being exploited by the complainant.

92. [92]
    The fact that the jury will get to hear repeated and forceful assertions of the complainant’s account of what is after all only the lead up to what she says was rape is not in my opinion of any real significance. It is a common feature of pretext phone calls that the applicant tells at least part of her story during them, and I have not seen any decision that they should be excluded on this basis. It is commonplace that in police interviews of suspects, the complainant’s version is gone through, sometimes being expressly read out from a statement by the complainant, and I have never heard of an interview being excluded on the basis that thereby the complainant’s version was again put before the jury. Inevitably where the Crown seek to lead evidence of the defendant’s reaction when the allegation is put to him there will be evidence of the terms in which the allegation was put to him, which will involve repeating to some extent what the complainant is alleging. I do not think that this is a factor which justifies or supports a discretionary exclusion.^[34] 

Second conversation – submissions

93. [93]
    In relation to the second conversation, the defendant relied again on the difficulties with English, and alleged that the conversation was functionally an interrogation of the complainant, so that any relevant admissions were “elicited”. In relation to the second phone call, it was submitted that, if the complainant was not a person in authority, nevertheless the significant inducement offered by her, to the effect that if he admitted what he had done and apologised she would not go to the police, was a factor likely to affect the reliability of any subsequent admissions. It was also submitted that it was contrary to the public interest for evidence of this nature to be received, because it intruded on the defendant’s right to silence. These matters were also relied on in oral submissions, where it was also submitted that any statements in the second conversation were induced by the complainant’s misrepresentations that she had not spoken to the police, and that she was motivated by concern about her health in pressing for an explanation of what she claimed were symptoms she was suffering. The prosecutor submitted that the admissions in the second conversation were reliable, given the defendant’s ability to recall certain events, to recall how many fingers he penetrated the complainant with, and because he was able to deny other allegations. As I heard the conversation, however, the defendant did not admit to any recollection of digital penetration, let alone by how many fingers; I think this submission overstated the evidence. It was also submitted that the complainant’s focus on her medical concerns meant that it was not an interrogation, but I do not regard these as necessarily alternatives.

Consideration in relation to discretion – second conversation

94. [94]
    The relevant aspect of the discretion in relation to this phone call is I think the question of unfairness. In the light of the other authorities, it is in my opinion clear that there is no public policy ground for excluding evidence of this nature. It is sufficient to refer to the reasons of McMurdo P in R v B (supra) at [69].  It seems to me that the authorities in general are clearly against the proposition that the mere fact that this method of gathering evidence impacts on a right to silence of a suspect, in the sense of a right to make an informed choice as to whether or not to speak in circumstances where what one says may be given in evidence at a trial, is not in itself an important consideration. 

95. [95]
    It also seems to be relevant but not necessarily conclusive that there was an element of interrogation in the questioning, or at least that it is not a conversation where the irrelevant admissions were simply volunteered by the defendant. It appears to be relevant whether the course of the conversation was natural given the actual relationship between the parties, or, in the case where the other party to the conversation is playing a role (not this case), the assumed role of the other party. It is relevant that the defendant has not been charged, and has not already exercised his right to refuse to speak to police about the matter. Deception by the other party to the conversation will not necessarily require the admissions to be excluded, though the presence or absence of deception is a relevant consideration. Ultimately it seems to me that all of the judgments place a lot of emphasis on the reliability of any admissions obtained in this way.

96. [96]
    It follows that if there are circumstances which cast doubt on the reliability of what is said then that is an important factor in relation to the exercise of the discretion on the ground of unfairness. In the present case, there are two factors which raise the issue of reliability, in relation to the second conversation. The first is the message from the complainant, “I am not going to the police, I just want you to admit what you did and apologise for what you did.” That can be readily seen as carrying the implication that, if he did not satisfy the request for an admission and apology, the complainant would go to the police. Bearing in mind the nature of the behaviour of the complainant was alleging, which at that stage did not extend to a complaint of sexual penetration, but only of less significant sexual activity, nevertheless a person in the defendant’s position, in a foreign country and studying with the support of his government, so that a complaint to the police could well have more significant problems for him then for someone else, a statement of this nature could well prompt an admission and apology of conduct which had in fact not occurred.

97. [97]
    In the second conversation, the complainant raised the issue about her health, and that he had said that he had previously had sex with prostitutes, and although there is a prompt assertion that there was no sex that night, in the circumstances this was an understandable reaction since it was I think a reasonable assumption in the light of the statements that the complainant had already made that she was at least suggesting that there had been sexual penetration. Thereafter such admissions as were made occurred in the context where the complainant was pressing the defendant for an explanation for what she said was a continuing symptom she was suffering, if his statement that there had been no penile penetration were true. In that situation, there is I think a real risk that the very guarded and qualified proposition that there might have been digital penetration, although the defendant did not actually remember that, could have been prompted more by a desire to come up with some alternative explanation for her symptom consistent with his assertion of an absence of penile penetration, in which case as an admission of digital penetration, or even of the possibility of digital penetration, it is of doubtful reliability. The statement that there had been touching on the vagina could then be seen as made in the context of a desire to give credence to this alternative, and no doubt in the mind of the defendant relatively innocent, explanation for this alleged symptom. Again, I think in the circumstances that casts some doubt on the reliability of that admission, and gives rise to concern that a jury could attribute more significance to it than is appropriate.

98. [98]
    The issue of reliability is best tested by asking whether, if the essential facts constituting the charge had not occurred, the defendant nevertheless might well in such a situation have made the statements relied on as admissions. Given the earlier statement about speaking to the police and the situation of the defendant, and in the light of the tone of the second conversation generally, which is dominated by the defendant’s forceful insistence on the proposition that there was no penile penetration of the complainant, I have concluded that there is a real possibility that the defendant might have made the crucial admissions in the second conversation, that digital penetration was possible, and there had been touching on the outside of the vagina, even if that had not in fact occurred, since these might have been seen by the defendant as a means of deflecting the accusation of penile penetration. There is also the consideration that any admissions might have been prompted by a desire to persuade the complainant not to go to the police about the matter.

99. [99]
    In those circumstances, I will as a matter of discretion exclude evidence of the second pretext phone call, and evidence of the Facebook messages after the first Facebook message from the defendant after the first phone call, from the evidence led by the Crown in this matter. I should say however, that I do not decide whether this ruling would prevent the issue being revisited by the Crown prosecutor if the defendant goes into evidence and gives a version which is arguably inconsistent with what he said in the excluded conversation. I think that is a different issue, which at the moment I do not need to consider.