R v Gamar Eldin[2016] QDC 206

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   An indictment has been presented in the District Court at Brisbane, charging the defendant with an offence of rape of the complainant……., alleged to have been committed on 25 February 2014.

2. [2]
   The applicant is Sudanese and communicates, as a first language, in an Arabic dialect, but appears to also have some basic English language capacity.

3. [3]
   At the time, the complainant was a 49 year old woman, living with the defendant in his unit at Yeronga. The complainant is originally from Iraq and came to Australia as a refugee. She speaks limited English and her first language is Arabic. The defendant was the complainant’s carer and he was paid a carer’s allowance by Centrelink in that regard. The complainant is said to have some physical disabilities that inhibit her ability to carry out day-to-day jobs such as preparing food or doing her laundry, and the defendant would perform such chores.

4. [4]
   In short compass, the allegation is that on the evening of Tuesday, 25 February 2014, the defendant went into the complainant’s bedroom, whilst she was reading the Quran. At that time, she was wearing a nightdress, bra and underpants. It is alleged that the defendant entered the room, removed his clothing, ripped off the complainant’s nightdress and removed her underpants, that he then grabbed her legs and put her ankles up near his shoulders and held her by the neck, choking her, and that he then inserted his penis into her vagina. It is further alleged that the complainant tried to yell and scream but was not able to do so because of the hold he had on her and that the defendant continued to have sexual intercourse with her for approximately 6 minutes, when she then passed out and that when she came to, she was alone in the room and felt fluid coming from her vagina.

5. [5]
   The complainant states that her intention was to complain to another carer who came to her unit on Thursdays. However, the complaint in relation to this offence emerged when the police attended at the defendant’s unit at Yeronga, on 26 February 2014, together with a police liaison officer of Sudanese extraction and who spoke Arabic. The reason for the police attendance lay in the defendant’s attendance at the Dutton Park Police Station on 25 February 2014, and it would appear, prior to the time at which he is alleged to have committed the offence of rape that evening, and in respect of his concern to have the complainant removed from his residence and the relationship in which he cared for her.

6. [6]
   After the police liaison officer spoke with the complainant and her complaint of rape emerged, an investigation, including a physical examination of the complainant, proceeded. That examination included the taking of high and low vaginal swabs and also swabs of the vulval area of the complainant and it was noted that the entrance of the vagina was observed to be red and tender when touched but otherwise, there were no obvious injuries to her genitalia.

7. [7]
   Initially, it was noted that the analysis of the swabs indicated that the defendant’s DNA was found “in the spermatozoa fraction of the high vaginal and vulval swabs (more than 100 billion times more likely that he contributed to the DNA than that he did not)”. Subsequently, the Court was provided with the following summary of the scientific analysis of those swabs:

“a. the high vaginal swab tested positive for the possible presence of seminal fluid.  Spermatozoa were not detected on a slide prepared from that swab.  Inconsistently later the statement contains the phrase ‘high vaginal swabs spermatozoa fraction’;

b. spermatozoa were detected on a slide prepared from the vulval swab;

c. it is estimated that each of the mixed DNA profiles obtained from the swabs is greater than 100 billion times more likely to have occurred if the defendant contributed DNA to them;

d. under the heading persistence of semen in the vagina the statement says:

‘Semen is likely to be found on vaginal swabs if they are taken 1-2 days after the act of vaginal intercourse.  Semen is sometimes found on swabs taken between 2-7 days afterwards, but is unlikely to be detected after 7 days.’”

8. [8]
   In the course of the investigation and on 7 March 2014 and with the assistance of an Arabic interpreter, the investigating detectives conducted an electronically recorded interview with the defendant.

The course of the application

9. [9]
   On 27 March 2015, the applicant filed an application pursuant to s 590AA of the Criminal Code, seeking that the evidence of that interview be ruled inadmissible and excluded from his trial. 

10. [10]
    In the outline of argument, initially filed in support of that application on 6 July 2015, such exclusion was sought upon the basis of:

1. (a)
   unfairness in allowing this evidence to be used against the defendant at his trial (that is, an exercise of discretion particularly identified as flowing from the decision in R v Lee (1950) 82 CLR 133, at 150-151, in the recent High Court decision of Police v Dunstall (2015) 89 ALJR 677); and

2. (b)
   having regard to public policy considerations and as an exercise of the discretion recognised in Bunning v Cross (1978) 141 CLR 54, at 74-75. 

11. [11]
    It was further contended that, as the evidence taken on this voir dire established, that particularly having regard to the standards or level of precision usually expected in undertaking the difficult task of interpretation in respect of evidence dealt with in courts, the interpretation provided during the course of this interview, both in relation to the interpretation of the questions of police from English to Arabic and the interpretation of the applicant’s answers from Arabic back to English, at times, fell seriously short of an expected standard of precision and accuracy. Partly as a consequence of that and particularly having regard to what is now not disputed, as an inaccurate translation of the English expressed by the police officers into Arabic for the applicant, at the interview, the underlying basis of the appeal to exercise the public policy discretion was then identified in what are contended to be failures to comply with:

1. (a)
   the requirements of s 418(1)(b) of the Police Powers and Responsibilities Act 2000 (“PPRA”), by not providing the applicant with the opportunity to make an informed choice as to whether he wished to first speak to and have a lawyer present for the interview.  In this regard, it is further contended that the investigating police officers did not satisfactorily ascertain whether or not the applicant wished to speak to a lawyer, before questioning commenced and in accordance with s 23 of the Police Powers and Responsibilities Regulation 2012 (“PPRR”); and

2. (b)
   it was also contended that the applicant was not properly cautioned as to his rights, in accordance with s 431 of the PPRA, importantly including his right to remain silent or not answer questions put to him. 

12. [12]
    Subsequently and in a supplementary outline filed by the applicant on 6 July 2015, and in a regathering of the applicant’s contentions as to exclusion of this evidence, it was then contended that there was an issue as to voluntariness of the applicant’s statements and the contentions as to discretionary exclusion, including the extent to which there was absence of compliance with the provisions of the PPRA and the PPRR, were pressed in respect of a contention as to the unfairness of allowing the use of these statements at trial, rather than as a separate consideration of the public policy basis for the exercise of such discretion. 

13. [13]
    However and from there, the matter only became further complicated. First and in the context of the necessity to adjourn the matter for the hearing of evidence, due to the absence of an interpreter to assist the Court in that regard, as opposed to the defendant having the assistance of an interpreter during the Court proceedings, the hearing of the application was adjourned from 11 to 17 September 2015. The prosecution outline had been filed, on 10 September 2015. That outline contained the following assertions:

“2.8 The applicant was interviewed by police on 7 March 2014.  He denied the complainant’s allegation absolutely.  He said he had never had any sexual relationship with the complainant. 

2.9 The Crown intends to rely on the applicant’s interview as evidencing a lie told out of a consciousness of guilt (in accordance with Edwards v The Queen (1993) 178 CLR 193).”

14. [14]
    When this application first came on for hearing on 11 September 2015, it was then clarified that the sole basis upon which the prosecution sought the admission of the interview with the defendant, was to establish what was contended to be a lie of the kind which might attract the type of direction discussed in Edwards v The Queen (1993) 178 CLR 193 (an Edwards lie).  Further and particularly with cognisance of the following passage in the decision in Edwards v The Queen (at pp 210-211):

“A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it … and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of ‘a realisation of guilt and a fear of the truth’.” (citations omitted and emphasis added);

it was clarified that the reference in the prosecution outline to the assertion by the applicant that “he had never had any sexual relationship with the complainant” is particularly to the following passage in the corrected transcript of the interview:^[1]

“SCON MADSEN:  Um have um, had any sexual partners at your unit at Yeronga?

WAKASWA WI:  [RESPONSE NOT IN ENGLISH]. [01:21:50 – Do you have any sexual partner at your unit in Yeronga?] 

GAMAR ELDIN:  [RESPONSE NOT IN ENGLISH]. [Not at all]

WAKASWA WI:  No - -

SCON MADSEN:  Sorry? 

WAKASWA WI:   Never.

SCON MADSEN:   Never ok umm, have you ever had sexual intercourse with [the complainant]?

WAKASWA WI:  [RESPONSE NOT IN ENGLISH]. [01:22:02 – Did you have any sexual relationship with [the complainant]?]

GAMAR ELDIN:  [RESPONSE NOT IN ENGLISH]. [No, never]

WAKASWA WI:   Never, no.”^[2]

15. [15]
    Although and to be more precise, it was the prosecution contention that despite the obviously problematic interpretation of the police officer’s question, this was to be taken as an assertion, when considered in the context of the applicant’s denials otherwise of the allegations made by the complainant and which had been put to him previously in the interview, and to the effect that he had not had sexual intercourse with the complainant. This was then contended to be capable of constituting an Edwards lie based upon the assumption that the only issue at trial would be as to consent and as it became clear, a further assumption that the results of the scientific examination, including the finding of the defendant’s DNA in the vulval swabs independently proved the element of penetration. 

16. [16]
    In those circumstances, it had been sought to clarify whether or not, for the applicant, it was accepted that the parts of the interview that the respondent sought to so rely upon, had the necessary capacity to be so relied upon. That is, the capacity to amount to and be left to the jury for their consideration as an Edwards lie. As a consequence, it became necessary to make directions as to the filing of further written submissions.  It can be noted that this occurred in the further context of a view then expressed by the prosecutor that if the position were different and the issues at trial included the element of penetration, then the prosecution position might be different in terms of its ability to seek to rely upon an Edwards lie. 

17. [17]
    The further outline that was consequently filed for the applicant, expressly conceded that:^[3]

1. The interview contained statements capable of amounting to an Edwards lie; and             

2. This application can be decided on the basis that the only likely live issue at trial will be consent.

Further and in consequence of what had, by then, become available in the form of the retranslated and corrected transcript, which is to be relied upon by the prosecution at trial (and, as has already been noted, it being accepted that the portions of the interview which were conducted in Arabic being now separately and accurately translated and included therein), the contentions for the applicant in respect of discretionary exclusion of the interview, were then couched as being premised upon a number of inadequacies in the translation of the statement and questions of the police officer and leading to various conclusions as the applicant’s lack of understanding as to the purpose of the interview and the seriousness of the charge about which he was being interviewed and his lack of understanding of rights that were sought to be explained to him, in accordance with the requirements of  the PPRA.

18. [18]
    In response to these contentions and concessions, the further written outline of the respondent sought to put in issue the suggested conclusions and otherwise noted the concessions made and in consequence, sought to characterise the lie relied upon as the applicant’s “claim in the interview that he did not have intercourse with the complainant on 25 February 2014”.

19. [19]
    The application then became even further complicated in that at the conclusion of the hearing of evidence on the application, including that of the applicant, on 17  September 2015, it became apparent that the applicant’s legal representatives needed to clarify the instructions upon which the concession that the only likely issue at trial would be consent, was premised.  In the first instance, defence counsel indicated a realisation that the concession had been made in the absence of sufficient precision of instructions on the point.  This emerged because the applicant had given evidence on this application, accepting that he had been untruthful in his assertion as to there being no sexual relationship between he and the complainant and otherwise, seeking to explain his assertions, in terms of seeking to avoid social embarrassment and conflict with his wife, who was then expected to shortly join the applicant in Australia.  Otherwise, the applicant maintained that he had truthfully denied the complainant’s allegation of non-consensual intercourse on 25 February 2014.

20. [20]
    On 18 September 2015 and once an interpreter was available to assist them, the applicant’s legal representatives indicated a need to completely resile from the concessions made in their earlier outline. The effect was to indicate that, at trial, both the issues of penetration and consent would be in issue, or to put it differently, that the defence would be to challenge that any such non-consensual act of sexual intercourse occurred. Further, the question of admissibility of the applicant’s statements as an Edwards lie, was specifically put in issue and the matter was adjourned for the preparation of further submissions and a further hearing on 2 November 2015.^[4]

An Edwards lie?

21. [21]
    Logically the first question for consideration, is whether the identified contents of the applicant’s interview are capable of being regarded as an Edwards lie.  This is because it is only if there is some admissible evidence in the interview, that any question as to the exercise of discretion to exclude it, arises. 

22. [22]
    The principles to be drawn from the decision in Edwards v The Queen^[5]  are to be found in the joint judgment of Deane, Dawson and Gaudron JJ.  Firstly, it was observed that:

“Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. When it does so, it may amount to corroboration provided that it is not necessary to rely upon the evidence to be corroborated to establish the lie. At one time it was thought that only a lie told out of court could amount to an implied admission, but the distinction is not logically supportable and is no longer drawn. When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to “convert what would otherwise have been insufficient into sufficient evidence of guilt” or as corroborative evidence.

But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realisation or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that “if he tells the truth, the truth will convict him”.^[6] (citations omitted)

Secondly, the principles were summarised as follows:

“A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in R v Lucas (Ruth), because of “a realisation of guilt and a fear of the truth”.^[7] (citations omitted)

Then and after making reference to the necessity for balancing directions, particularly as to potential aspects such as confusing, panic and motivation to escape an unjust conclusion or to protect another, the judgment continued:

“If the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated.”^[8]  

23. [23]
    Whist and ultimately it was the submission for the applicant that as the admissibility of the interview with the applicant depended upon the admissibility of the contents contended to engage the principles set out in Edwards, it was appropriate to now consider the admissibility of that evidence, upon the basis of the capacity of it to be so regarded and relied upon by the respondent. The respondent contended that it was not so appropriate and that all that was required was a determination, at the end of the evidence, as to whether or not the jury would be given the directions required by Edwards and allowed to consider whether an Edwards lie had been established. 

24. [24]
    The respondent’s submissions should not be accepted. As is noted in R v Callaghan,^[9] when a prosecutor chooses to put into evidence a version given by a defendant, the “exculpatory parts go in with the incriminatory”.  It was, in that case, further observed:

“Similarly, if a prosecutor chooses to put into evidence a version which is in substance exculpatory, he makes it evidence in the case, and subject to matters of weight, it can be acted on as showing or tending to show the truth of its contents. There is no general obligation on the prosecution to call such evidence. The calling of such evidence is a benefit tendered by the prosecution and accepted by the defence. If inadmissible evidence is let in without objection it may be used by any party “to the extent of whatever rational persuasive power it may have.^[10] (citations omitted)

25. [25]
    Obviously and unlike the position here, those observations were directed at a situation where there is no objection to the admissibility of the evidence and in R v SCD,^[11] it was more recently reiterated that, in Queensland, no practice of the prosecution leading wholly exculpatory statements of defendants exists and further, that “the long established principle” is that “self-serving statements by accused persons are inadmissible unless in a statement containing an admission on which the prosecution seek to rely”.

26. [26]
    Here, the admissibility of this interview depends entirely on the capacity for proof of the Edwards lie, as contended by the prosecution in support of the prosecution case.  That is a matter that can, and should, be determined now and if the evidence were admitted, it would remain for the trial judge to subsequently determine how the jury was to be directed as to the use of this evidence, in the context of all of the evidence adduced in the trial.

27. [27]
    It follows that an alternative respondent contention: that “the interview has significant probative force” in providing a foundation for a direction based on Zoneff v R,^[12] should also be rejected.  The basis of that submission was expressed as follows:

“The defendant’s credit will be significantly damaged by his calm and confident manner while telling deliberate lies in the interview.  There is a fair chance he will give evidence to explain the DNA evidence.  If he does, the Crown will be able to compare his account given prior to knowing the DNA results with that given at trial.  If he does not, the credit of his account given in the interview can be called into question.”^[13]

28. [28]
    First, it is necessary to note that the decision in Zoneff was concerned with the distinction between credibility lies and lies demonstrative of a defendant’s guilt, as might arise in respect of the evidence of a defendant given at trial.  Secondly and whilst it was expressly recognised that the form of direction that might be given in respect of credibility lies (at [23]):

“… may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence”;^[14]

and therefore could be adaptable to the assessment of the exculpatory statements made by a defendant in an interview that is in evidence, the principles set out above demonstrate that there must first be something which makes that interview admissible, particularly where there is an objection to it being admitted.  Thirdly, the suggested approach, in terms of admissibility in the respondent’s case being based on relevance to the applicant’s credit, is misplaced.^[15]  The credit of the defendant as a witness, only arises if and when the defendant gives evidence and it is then a matter for cross-examination.^[16]

29. [29]
    Primarily the respondent’s submission is that the Edwards lie told by the applicant is that he did not have sexual intercourse with the complainant on 25 February 2014.  That is said to be implied from various things he said, including his direct denials of the allegations of the complainant, when they were explained to him in the interview and also his assertions that he had no sexual relationship with the complainant and saw her as a “mother” and that they did not live as “man and wife”.  Those particular assertions were contented to be “lies that are capable of evidencing a consciences of guilt or affecting credit depending on what other evidence is led at trial”.^[17]

30. [30]
    It is of some importance to note the responses where the applicant asserts, or may be taken to assert, that he had no sexual relationship with the complainant:

31. [31]
    The submissions for the applicant highlight the principle stated in Edwards^[22] that:

“A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. if it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew the truth would implicate him in the defence.”^[23]

From there and particularly by reference to the decisions of R v LAZ,^[24]R v Ciantar^[25]and Martinez & Ors v Western Australia,^[26] the emphasis was placed on a need to identify the capacity of the evidence relied upon to demonstrate not just the deliberateness of any lie but also its materiality to an issue related to the charged offence and also a consciousness of having committed that offence, rather than some other offence or discreditable conduct. 

32. [32]
    It was correctly pointed out for the respondent that some obiter dicta in R v LAZ was subsequently referred to, in Ciantar and Martinez, as being inconsistent with the rejection, in the joint judgment in Edwards, of the suggestion of any circularity of reasoning in reliance on evidence contended to demonstrate a consciousness of guilt of an offence, in order to determine whether that offence is proven.  In Martinez^[27] it was observed (particularly referencing the Victorian Court of Appeal decision in Ciantar) that:

“A jury might accept evidence of lies and other post-offence conduct and act upon it without being satisfied beyond reasonable doubt that there is no other explanation for the lies and post-offence conduct which is reasonably open of the facts, unless the lies or post-offence conduct comprise an indispensable link in the chain of reasoning on which proof of guilt depends.”

It was also acknowledged, however, that Martinez is authority for the proposition that where an explanation for a lie is so inherently likely that a jury could not accept that the lie was told out of a consciousness of guilt, or where the innocent explanation is just as likely as the inference of guilt, the lie will not be capable of evidencing a consciousness of guilt.^[28]

33. [33]
    However and as has been noted, these are not the considerations which are the subject of the submissions made for the applicant. Rather, those submissions are directed at the demonstrated capacity of the contended lie to be regarded as both material to the charged offence and capable of demonstrating a consciousness of guilt of that offence, for instance and by way of contrast, and for the applicant it is correctly pointed out, that notwithstanding other contended lies that were found in Martinez, to not have the capacity to be so regarded and left to the jury as Edwards lies, the lies attributed to each accused in claiming a false alibi in respect to a particular alleged offence, were found to have that capacity. 

34. [34]
    A similar observation may be made in respect of the respondent’s reliance upon the decision in R v McCann.^[29]  The respondent correctly points to this case as exemplifying the proposition that the simple existence of another possible explanation for a lie is not necessarily sufficient to remove the capacity of the lie to be left to a jury to determine whether it evidences a consciousness of guilt of a charged offence.  Obviously in each individual case, there is a need to look to the contextual circumstances in determining whether such a conclusion is reasonably open to the jury. 

35. [35]
    Also and whilst superficially comparable to the circumstances of this case, the circumstances in McCann were subtly but significantly different.  McCann was charged with raping a young women, on the basis that she awoke to find him in her bed and having sexual intercourse with her.  They were only known to each other as residents of the same town and when first approached by the police, McCann denied any knowledge of the matter, denied having sex with the complainant and denied being at her premises the previous evening.  Later and at the police station, he told police that there was something he wanted to say that he had not previously wanted to say in front of his mother and he then proceeded to admit that he had been at the complainant’s premises and had sexual intercourse with her, which he claimed occurred consensually.  At trial, the prosecution obviously relied upon his admissions as to the defendant’s presence at her residence and intercourse with the complainant and the circumstances in which those admissions emerged, as establishing his earlier false denial.  In addition, there was evidence of the complainant’s distressed condition and evidence which placed the defendant’s DNA on the complainant’s underwear, at the scene, which was also relied upon as placing the defendant there and as demonstrating his lie as to not having been to the complainant’s residence. 

36. [36]
    What must be noted about McCann is that the evidence as to the earlier false denial was obviously a necessary context to the proof of the admissions relied upon by the prosecution and that case is not concerned with any object to that evidence or contention that it should not have been left to the jury to decide whether it should be acted upon as an Edwards lie.  Rather, the contentions were only as to the adequacy of the directions of the trial judge, as to the use of the evidence.

37. [37]
    A notable distinction with the present case is that here, there is no admission as to the act of intercourse on 25 February 2014. The allegation, as was explained to the applicant in the police interview was specific as to an act of intercourse that occurred on that evening and in a manner which, if the complainant’s evidence is ultimately accepted, could only amount to an act of rape. In this case, there is no evidence that may be led by the respondent of any admission to such an act. Quite to the contrary, the applicant’s responses during the interview (and in his evidence on this application) were to deny that such an act occurred.

38. [38]
    In this case, the respondent contends that the lie in that denial is established by the DNA evidence^[30] and on the hearing of this application, the situation was complicated by the applicant’s admissions that he had been untruthful or lied, but only in respect of the denial of the sexual relationship with the complainant and accordingly, other acts of sexual intercourse with her.  He also proffered an explanation for doing that.  It is of course, not without potential significance that in giving his evidence on this application, it can be inferred that the applicant was aware of the DNA evidence, upon which the prosecution intend to rely.

39. [39]
    Although it is understood that the evidence proposed to be led from the complainant will be to the effect that there was no other act of sexual intercourse with the applicant prior to the rape, it is also pointed out by the applicant that the DNA evidence is not specific as to an act of sexual intercourse on 25 February 2014, and consistent with there being such an act occurring in a period up to seven (or even nine or ten) days prior to the examination and taking of samples on 26 February 2014. A further complication is that, on this application, the Court was informed that in the course of that examination on 26 February 2014, it was noted that:

“NB [the complainant] stated her carer had done this four times since December 2013.  The last time being nine or ten days earlier.”

40. [40]
    Whilst in assessing the capacity of the evidence to be regarded as an Edwards lie, at this juncture, primary regard is to be had to the evidence to be led by the respondent and not upon the applicant’s explanations. The relevant capacity of the evidence is necessarily as to its capacity to be left for the jury’s consideration as an Edwards lie, which would remain an issue for the trial judge at the conclusion of the evidence, at trial and then to be decided in the context of all of the evidence adduced.  Accordingly, the evidence adduced on this application and in relation to this issue, should not be ignored, despite any uncertainty as to what, if any, aspects of it will be repeated or placed before the jury at trial.  This is because this evidence has a clear capacity to be predictive, as to the likely critical issues at trial.

41. [41]
    There are, as is pointed out in the written submissions for the applicant,^[31] some arguable difficulties in regarding the separately identified assertions of the applicant as to the nature of his relationship with the complainant, including his admitted false denials of a sexual relationship, as demonstrative of the applicant’s consciousness of his guilt of this specific offence of rape.  However, it is unnecessary to dwell on these complications, as the reality of the prosecution position is that there is evidence in the interview of one overall lie, which is a denial of any sexual interaction with the complainant.  However and in order to make that lie relevant to a material issue and otherwise meet the strictures identified in Edwards, it was contended that:

“All three lies identified by the Crown relate to whether the defendant and complainant had sexual intercourse.  The defendant’s intention in the interview was to disclaim entirely any sexual interaction with the complainant.  That denial relates to the first of the two elements of rape – carnal knowledge.  The reason for telling that lie is because the truth of it (that he did have intercourse with the complainant) would implicate him in the offence.”^[32]

42. [42]
    However, it must be remembered that that offence is the act of sexual intercourse alleged and described by the complainant as occurring on the evening of 25 February 2014 and when the defendant came to her room, removed his clothing and then proceeded to forcibly remove her clothing and have intercourse with her. In the prosecution case, in proof of that allegation, the significance of the DNA evidence is in potentially corroborating the complainant’s evidence. It cannot independently prove that the particular act of sexual intercourse occurred, much less that it was an act of rape. In fact, it is necessary to observe that it amounts to circumstantial evidence which only establishes a likelihood of identification of the defendant as the source of the DNA, as a matter of statistical probability. For instance and although the precise directions will necessarily depend upon the evidence given in individual cases, part of the commonly given direction in respect of such evidence (as suggested in the Benchbook at No. 53.3) is:

“The process of identification by DNA profiling is based on the testing of DNA molecules in bodily tissues and bodily fluids such as blood, saliva, and semen. From measurements taken at selected locations, a DNA profile for a sample of bodily tissue or fluid of unknown origin may be obtained and compared with the DNA profile obtained from a sample of bodily tissue or fluid of known origin. If the profiling tests are done correctly and if the profiles match, it may be concluded that the tissue or fluid of unknown origin could come from the same person as the person from whom the tissue or fluid of known origin came.

The matching of the profiles does not establish that the tissue or fluid of unknown origin is from the person from whom the tissue or fluid of known origin came. There is the possibility that the tissue or fluid of unknown origin came from someone else.

The chances of someone’s having a matching profile are calculated from statistical studies. If we leave aside the special case of identical twins who have matching DNA profiles, the chances of someone having a matching profile will, if the statistics are reliable, be very small. In this case, the figure of one in [number] was calculated. Statistical estimates are the product of scientific and mathematical theory and are not concrete facts.”

43. [43]
    Accordingly and although and since the amendments made to s 632 of the Criminal Code in 1997,^[33] it has become increasingly unfashionable and in most instances unnecessary, to analyse or categorise cases by such a reference point.  However, what the respondent is seeking to do here, in reliance on both the DNA evidence and the applicant’s denials, is to corroborate the evidence of the complainant. 

44. [44]
    As has been noted, the proof of the denials critically depends upon the acceptance of the evidence of the complainant, in circumstances where the acceptance of her evidence is the essential basis of the prosecution case, in any event. It is to such considerations that the following passage in Edwards, is directed:

“If the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. If a witness required to be corroborated is believed in preference to the accused and this alone establishes the lie on the part of the accused, reliance upon the lie for corroboration would amount to the witness corroborating himself. That is a contradiction in terms.”^[34]

45. [45]
    Despite the statutory amendments to s 632 of the Criminal Code, that passage remains of significance and may be seen as discreet from the rejection otherwise, in the joint judgment, of the notion of circularity of reasoning where a lie is able to be independently proved.  Moreover, the impermissibility of seeking to establish a lie by this particular type of circular reasoning, has been recognised in other cases.^[35]

46. [46]
    Even though it was found to be inapplicable to the circumstances of that case, where there was independent evidence of the complainant (capable of proving the lies relied upon), the principle was most recently reviewed in Queensland in R v Duckworth.^[36]  The following passage from R v Zheng^[37] was cited with approval:

“Once the jury had reached that conclusion concerning the appellant’s conduct, there was nothing further which the Crown had to establish relating to that particular conduct of the appellant. For the jury to be invited to conclude that the appellant’s lies concerning his conduct in the car park was available as evidencing a consciousness of guilt, which could then in turn be taken into account in some way in determining whether the appellant had in fact conducted himself in that way is a wholly circular argument.

In other words, the appellant’s lies as to what he did in the car park could not logically be established without first reasoning that the appellant had in fact done in the car park what the Crown’s witnesses said that he did, where their evidence was the only evidence that he so conducted himself.”

It was then further observed that:

“In R v O'Brien, Pincus JA, with whom McMurdo P and Muir J agreed, referred to Zheng with approval. Otherwise, the principle to be derived from Zheng, and variously described as “circular” or “bootstraps” reasoning, has found acceptance in a number of subsequent decisions.  In Nestorov v The Queen, it was expressed in these terms:

‘[If] the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. In other words, if a witness required to be corroborated is believed in preference to the accused and this alone establishes the lie on the part of the accused, reliance upon the lie for corroboration would amount to the witness corroborating himself. That is a contradiction in terms. A lie about the extent of the accused's observation or recollection of certain events is a matter that goes to his credit and nothing else.’”^[38] (citations omitted)

47. [47]
    Finally, it should be noted that in the last written submission made for the respondent, it was contended that the interview with the applicant is admissible to prove his account of the events of the day on which the offence is alleged to have occurred, more specifically, which contains admissions relating to his being the carer of the complainant and having an opportunity to commit the offence. As is pointed out for the applicant, to the extent that those matters are admitted in the interview, they are not in issue. Moreover and even if such issues were in dispute or required some further confirmation, that would not provide any separate basis for the admission of the contentions in the remainder of the interview, in the context of the applicant’s objection to it.

48. [48]
    Accordingly, it should be concluded that the denials of the applicant as to having had sexual intercourse with the complainant, in the interview with police on 7 March 2014, do not have sufficient potential capacity, in the circumstances of this case, to be regarded as an Edwards lie and to be considered and acted upon by a jury as such.  Therefore, the evidence of that interview is not admissible in the prosecution case. 

Is there a basis for exclusion otherwise?

49. [49]
    Although and in the light of that finding, it is strictly unnecessary to do so, it is desirable to indicate a conclusion as to whether, in the event that the recording had been found to be admissible, it would nevertheless have been the subject of exclusion otherwise. That conclusion is that there would have been an order for exclusion in the exercise of judicial discretion, in any event.

50. [50]
    Although and as has been noted, the question of voluntariness^[39] was raised in the written submissions, it was only raised in respect of what was described as “basal voluntariness”, meaning the application of the common law principle of voluntariness, in the sense of the exercise of “a free choice to speak or to remain silent”,^[40] rather than in any reliance upon any threat or inducement being made or offered and such as to raise the application of s 10 of the Criminal Law Amendment Act 1894.

51. [51]
    For the applicant, it was contended that the question is whether he spoke in the exercise of a free choice and not because his will was overborne and that this was a flexible principle, the application of which is not limited by any category of inducement that may prevail over a person’s will.^[41]  Although acknowledged to have been decided before Tofilau v R,^[42] reliance was placed upon the approach in R v Trinh,^[43] where there was exclusion of the recorded interviews of the defendant charged with the possession of a large quantity of heroin and which occurred shortly after he was intercepted in the vehicle in which the drug was found secreted.  It is pointed out that in circumstances where the conversations were conducted in English, with a defendant for whom this was not a first language and without the benefit of any interpretation to another language, grounds were found to exclude the interviews in the exercise of discretion, on the basis of unfairness.

52. [52]
    It was also determined that the interviews were not proven to be voluntary, upon the basis of a view of the evidence:

“That the applicant did not understand the cautions and associated rights explained to him by the police officers and believed that he was required to answer the police questions to the extent that he understood them and was therefore able to.”^[44]

However and as pointed out for the respondent, such an approach or view has been overtaken by observations made in Tofilau v R:^[45]

“(a) As Gleeson CJ said:

‘[20] References were made in argument to the appellants' ‘right to silence’, and to the effect on that right of the techniques adopted by the undercover police. As Lord Mustill pointed out in R v Director of Serious Fraud Office, Ex parte Smith, that expression ‘refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute.’ It is not a single principle.

It is a convenient shorthand reference to a collection of principles and rules, some substantive and some procedural. If it is said that there has been an infringement of a person's right to silence, then it is usually necessary to identify the particular legal rule involved and to explain the nature of the infringement by reference to that rule. The tendency in argument in the present case was to use the shorthand description to create an aura of inviolability around the appellants' guilty secrets, and then to take the further step of characterising the tricking of the appellants into deciding to reveal those secrets as an overbearing of the will.

[21] In answer to this line of reasoning it must again be observed that many forms of undercover police activity, and of covert surveillance, involve attempts to gain information from people who, if they were aware of what was going on, would remain inactive or silent. There is a sense in which it can be said that intercepting a telephone conversation, or secretly recording an interview, always deprives a person of the opportunity to remain silent in circumstances where, if the person had realised that he or she was under observation, the person would have remained silent. That does not mean that there has been an infringement of one of the legal rules which together make up the right to silence. Nor does it mean that what is being said in the conversation is involuntary. The argument seems to equate the right to silence with a right of privacy, and to treat as involuntary any statement that is made without a fully-informed appreciation of the possible consequences. Neither step is consistent with legal principle.’^[46] (citations omitted)

2. (b)
   As Gummow and Hayne JJ said:

‘[63] Two further points should be made. The first is negative and identifies what does not suffice to show that the will has been overborne. The conclusion that a confessionalist had no choice to speak or stay silent is not required (and without more being established, would not be open) if it is observed that the confessionalist acted under some misapprehension or mistake, even if that misapprehension or mistake was induced by the person to whom the confession is made. Nor is that conclusion required (and without more being shown the conclusion would not be open) if it is observed that there was some imbalance of power between the confessionalist and the person to whom the confession was made.'^[47] and

3. (c)
   As Callinan, Heydon and Crennan JJ said:

‘[358] Deception and involuntariness: conclusion. Counsel for Tofilau and Hill submitted that deception could lead to a conclusion of basal involuntariness ‘whenever the justifications for the voluntariness rule are engaged’. He submitted that the undercover officers had engaged in ‘the functional equivalent of an interrogation of a suspect’. He submitted that by ‘improper means’, namely ‘trickery or deceit’, they had induced a state of mind in the appellants which was ‘completely, wholly, fundamentally mistaken as to the circumstances or context’ in which they answered "questions and the consequences of answering questions". He submitted that at least two of the justifications for excluding confessions existed, namely the importance of protecting the right to silence and the need to prevent ‘improper practices of interrogation’ by disciplining police officers. This submission conformed with another submission, namely that the Court ‘should confirm that the voluntariness requirement cannot be satisfied in circumstances where a person is unaware of their right to silence’. Counsel cited R v Li, where Coldrey J said:

‘[T]he concept of voluntariness ... extends to and encompasses the situation where answers are given by an accused person who lacks understanding that such questions need not be answered, and, as a result, feels compelled to participate in the interview process.’ (citations omitted)

[359] These submissions should be rejected. The police officers committed no crimes or civil wrongs or other illegalities. They had the benefit of statutory exemption from various aspects of the regime protecting suspects under interrogation. They were investigating four murders in relation to which more conventional methods had not yielded useful results. One of those murders had taken place 20 years earlier. In the circumstances, the means employed, while deceitful, cannot be described as "improper". Nor, unless police officers are to be forbidden from addressing questions to anyone whom they later charge, or at least from relying on the answers, can what happened be described as an impermissible interference with the right to silence. As for Coldrey J's statement, he was speaking in a case concerning a 17 year old male of East Timorese background who had not had previous contact with the police; who did not speak good English and lacked the capacity to understand or articulate abstract concepts; whom the police warned of his right to remain silent, his right to seek legal advice and his right to speak to a friend or relation; but who did not understand what was said. Coldrey J's remarks must be understood in that context, and not as applying generally. As Gleeson CJ said…

‘There is no justification for the proposition that a statement is voluntary ... only if the maker of the statement was aware, at the time it was made, that the law offered a choice between speaking or remaining silent. Admissions are frequently made by accused persons, often to persons other than police officers, and sometimes to police officers, in circumstances where the maker of the statement is uninterested in, and unaware of, the legalities of the situation. Indeed if ... a statement may be voluntary even though made pursuant to a legal obligation, a fortiori a statement may be voluntary even though the maker is unaware of what the law requires.

... There are numerous statements in the law reports to the effect that a confessional statement to a police officer is not inadmissible merely because no caution has been administered. It is hardly likely that those statements were intended to apply only in the case of an accused person who knows of his right to silence even without a caution.”’^[48] (citations omitted)

53. [53]
    As will be expanded upon below, the contentions for the applicant tend to converge to assertion of absence of a fully informed or considered choice to speak, rather than an absence of a free exercise of choice to do so. In the circumstances, it is established that the applicant’s assertions to the police have been made voluntarily and there is no need to consider the potential effect of decisions such as R v Clarke; ex-parte A-G^[49] and R v Sica,^[50] including as to whether the reasoning in respect of the inapplicability of s 10 of the Criminal Law Amendment Act 1984 to other than truly confessional material, should be extended to the issue of voluntariness under common law principles.

54. [54]
    However and although there was for the respondent a contention otherwise, the position is clearly different in respect of any exercise of discretion, having regard to considerations of unfairness. The submission for the respondent was largely based on the recent observations in Police v Dunstall^[51]acknowledging the connection of the discretion recognised in R v Lee^[52] to the law relating to confessions and otherwise finding it “inappropriate to determine the scope, if any, of a residual discretion to exclude lawfully obtained, probative, non-confessional evidence that is unaffected by impropriety or risk of prejudice on the ground that admission of the evidence would render the trial of the defendant an unfair trial.”^[53] But there is no need to consider the application of any such residual discretion as it may be seen that the earlier statement that “[t]he Lee discretion forms part of the special body of rules applying to the admission of confessional statements”, may be seen as only descriptive of the more usual application of the principle and not contemplated to exclude the operation of the principle to the implied admission of a guilty consciousness, which is the inherent characteristic of an Edwards lie.^[54]  

55. [55]
    It should be noted that s 130 of the Evidence Act 1977 recognises the power “to exclude evidence if the Court is satisfied that it would be unfair to the person charged to admit that evidence”. In R v LR^[55], Keane JA observed:

“[52] The decision of the High Court in R v Swaffıeld, and in particular the joint judgment of Toohey, Gaudron and Gummow JJ, requires that the discretion to exclude confessional evidence should be exercised, where voluntariness is not in issue, by reference to considerations of reliability and respect for the right of an accused to stay silent. As their Honours said:

‘… the purpose of that discretion is the protection of the rights and privileges of the accused. Those rights include procedural rights. There may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence.’”

Then and after summarising the relevant circumstances of that case, His Honour continued:

“[54]  In these circumstances, the judicial discretion also fell to be exercised against the background that the interview had proceeded in breach of provisions of the PPR Act designed, not merely to protect against the possibility of coerced confessions, but also to ensure the reliability of what an accused may say against his or her own interest and to ensure the free exercise of the right of the accused to stay silent.

56. [56]
    Also in R v Swaffield,^[56] specific notation was made of the following passage taken from the judgment of Brennan J in Duke v R:^[57]

“The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted.  If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded.”

57. [57]
    Earlier again in the same judgment in R v Swaffield and in specific reference to the decision in Van der Meer v R,^[58] as well as the same passage in Duke v R, it was also observed:

“[53] The term ‘unfairness’ necessarily lacks precision; it involves an evaluation of circumstances. But one thing is clear: ‘[T]he question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him ... Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.’

[54] Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted. And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred.”

58. [58]
    In respect of discretionary exclusion of evidence, the applicant bears the persuasive onus and the burden of proof, on the balance of probability, of facts that would justify such an exercise of discretion.^[59]

59. [59]
    It is not necessary to canvass here the full detail of the complaints raised for the applicant in respect of the inadequacy of the translation of the statements and questions of the police officers to the applicant, in the interview. In the first instance, it is at least difficult to see how the failure of the translation, rather than the compliance of the questions and assertions in English and as sought to be explained to the applicant as to the purpose of the interview and his rights in respect of it, could allow for any finding of impropriety or illegality of failure on the part of the police officers or be such as to provide any basis for the exercise of discretion to exclude the interview having regard to the principles in Bunning v Cross or more generally, on the basis of unfairness to the applicant.

60. [60]
    However and as has been noted, in this context the unfairness basis of the discretion is not so constrained and it is of significance to note that the underlying basis of the assertion of absence of voluntariness in the applicant’s responses, was in the contention that he was not given an opportunity to make an informed, or at least, fully informed choice to speak and in terms of the appeal to discretionary exclusion, that extended to a contention as to the appearance of lack of true or full understanding of the right to not answer the questions and to obtain legal advice as to whether to do so.

61. [61]
    Those contentions are particularly based on the following circumstances:

It is apparent that the penultimate assertion by SCON MADSEN was not translated and it may also be noted that immediately after this passage and when it was further explained that the applicant might have a friend or relative present and he was asked if wanted to contact anyone, the applicant is recorded as responding:

“I have no one in this country, I live alone.” 

62. [62]
    Accordingly, it may be observed that there appears to be room for the contentions that there was some confusion as to the availability of the lawyer, who was expected to assist the applicant in respect of the proceedings under the Domestic and Family Violence Protection Act 2012 and more particularly, as to the applicant’s right to simply elect not to answer questions.  Those difficulties are subsequently further exemplified when and after a break in the interview, which occurred after the applicant had been taken through and had denied the complainant’s allegation in respect of 25 February 2014, the police officer returned to the warnings and explanations that had been raised at the outset. The following passage may be noted:^[70]

63. [63]
    The evidence of the applicant was to the effect that he had not appreciated his right to simply elect not to answer questions and had he done so at the time, he would have exercised that right.^[71] Whilst that evidence is obviously given with the benefit of hindsight and in the context of this application, the difficulties in the translation of the interview and in confirming a clear understanding of the applicant as to this right, in the context of his right to consult a lawyer, makes it difficult to reject the evidence. In particular, it may be noted that when the right to remain silent was first explained by the interviewing police officers, the critical information that he did not “have to answer any questions, if he didn’t want to”, was complicated by the preceding assertion by the other officer and translated to the applicant as:

“It means, he is saying that this is information just for you and she is saying if there is a question to which you don’t want to answer, then you will not be forced to do so unless you want to reply to it”

 That falls significantly short of providing any clear explanation of the applicant’s right to simply elect to say nothing.^[72] Further and when there was return to the explanation of these rights, after the break in the interview and after he had already made all of the denials upon which the respondent seeks to rely and there appears a correct translation and therefore, explanation of the right to silence, it is clear that the applicant is afflicted with a mindset of his right or need to either confirm or deny accusations made against him.

64. [64]
    Although the circumstances may be viewed as marginal, the better view is that the deficiencies in the interpretation of the explanation of the applicant’s right to silence have denied him of a full and appropriate opportunity to exercise that right and accordingly, the prospect of that occurring and that it is unfair to allow the use of what he said in the interview, in the respondent’s case. As has been noted, the concern is as to the use of the evidence against the applicant rather than any censure of what occurred and in that regard, it is pertinent to note that here, this would not concern any reliance upon any admission of fact that may be regarded as the truth but rather, what has already been noted and is notoriously recognised as the more problematic reliance upon statements that are contended to be false statements and prone to such risks of misuse as to require directions of the type discussed in Edwards v R,^[73] Zoneff v R ,^[74]R v Hennig ^[75]and R v Sheppard.^[76]

65. [65]
    As can be noted, the Court of Appeal have warned of the need for circumspection and care in the use of such directions^[77] and as was pointed out for the applicant, in R v Hughes,^[78]McPherson J made the following instructive, albeit generalised, observation:

“In far too many prosecutions, the allegation of consciousness of guilt, which is difficult to comprehend, let alone for a judge to explain to a jury, is little more than a self-serving prop to evidence that in some essential respect is by itself not particularly convincing. Logically, if proof of the offence is otherwise cogent, resorting to a supposed consciousness of guilt is not called for or required. If it is weak, reliance on it as a method of proof or persuasion is simply a make-weight that is likely to be fraught with risk of error and consequent mistrial.”