R v Wolfe (a pseudonym)[2023] QDCPR 45

DISTRICT COURT OF QUEENSLAND

Contents

Summary1

Background2

The parties’ submissions2

The legal principles4

Exclusion of confessional evidence4

Secondary evidence10

Tampering with the recording13

Discussion14

Is the recording so unreliable that it should be excluded?14

Should evidence of the conversation otherwise be excluded?14

Should secondary evidence of the recording be excluded?16

Conclusion18

Summary

1. [1]
   The defendant^[1] is charged on indictment on one count of maintaining a sexual relationship with a child, six counts of indecent treatment of a child under 16 who is a lineal descendant and one count of rape. The defendant is the complainant’s^[2] grandfather.

2. [2]
   On the day that the complainant and her father^[3] attended a police station and the complainant provided a recorded statement^[4] to the police, Peter apparently told the police officer that he intended to confront the defendant about Rebecca’s allegations. The police officer said that, if he did so, he should record the conversation.^[5]

3. [3]
   Peter says that, on the way home in Peter’s car, he telephoned the defendant in Rebecca’s presence and Rebecca recorded a video of that conversation on her telephone. She then “air-dropped” the video to his telephone. He later uploaded the video to “evidence.com” at the request of a police officer. That officer apparently downloaded that video from “evidence.com” and provided it to the Director of Public Prosecutions. The recording (if accepted as legitimate) reveals that, during the conversation, the defendant made statements that were, or could be taken by a jury as, admissions of some of the alleged conduct.

4. [4]
   Should the court order that the copy recording in the DPP’s possession and evidence of the alleged conversation be excluded from the trial? Also, if a copy of the recording is obtained by the police directly from Rebecca’s telephone,^[6] should that recording and evidence of it be excluded?

5. [5]
   For the following reasons, I have determined that:

   1. (a)
      if the police succeed in obtaining a “Cellebrite” copy of the recording on Rebecca’s telephone, provided that the Crown calls Rebecca and Peter to give evidence about the circumstances in which the original recording was made and what has been done with it since it was made and a police officer to give evidence about its download by “Cellebrite”,^[7] that copy of the recording not be excluded as evidence in the proceeding; and
   2. (b)
      if the police do not succeed in obtaining a “Cellebrite” copy of the recording on Rebecca’s telephone, provided that the Crown calls Rebecca and Peter to give evidence about the circumstances in which the original recording was made and what has been done with it since it was made and a police officer gives evidence about its download from “evidence.com”, that copy of the recording not be excluded as evidence in the proceeding.

Background

6. [6]
   The Crown alleges that the defendant committed the offences on various dates between February 2011 and January 2019.

7. [7]
   The defendant was initially questioned by police about the  alleged offending  on   11 February 2019. During that interview, he made some admissions. At the end of the interview, he was asked by an officer if he would be happy to speak to the police again once they had undertaken further investigations. The defendant responded:

Well, I s’pose I’d be happy to but probably at that point of time I probably need a solicitor, don’t I?^[8]

8. [8]
   The defendant then went on to indicate that he would cooperate with police in the future.^[9]
9. [9]
   On 10 May 2021, Rebecca and Peter attended at the police station, where Rebecca made a statement in relation to the alleged offending. While driving home from the station, Peter decided that he would confront the defendant about the alleged offending. He had told a police officer that he might do so and was advised by the officer that, if he did confront the defendant over the telephone, he should record it.^[10]
10. [10]
    During that drive, Peter called the defendant and confronted him about the alleged offending. Rebecca video-recorded the conversation on her telephone. Rebecca then “airdropped” the recording to Peter’s telephone.^[11]
11. [11]
    The following day, Peter contacted the police to inform them about the recording of the telephone call. He was provided with a link to “evidence.com” to upload the recording, which he did. The recording was uploaded and received by the police on 12 May 2021 and, on the same day, Peter attended the police station to provide a further statement. It is this recording that the defendant seeks to exclude, on multiple grounds.

The parties’ submissions

12. [12]
    The defendant’s counsel outlined a number of grounds which they contend demonstrate that the recording was obtained improperly and it would be unfair to the defendant if not excluded. I will outline each ground briefly.

13. [13]
    First, the defendant’s counsel argue that the recording is of limited probative value and is unreliable. The prejudicial effect of the recording outweighs its probative value. In particular, the authenticity of the recording in the possession of the Crown is in dispute. The defendant’s counsel submit that parts of the recording are inaudible. The copy of the recording in the Crown’s possession is itself a copy of a copy of a copy of the recording taken on Rebecca’s telephone rather than the original recording. The defendant’s counsel also speculate that the recording may have been edited; in particular, the alleged admissions in the recording may be the result of editing it. They also submit that there are suspicious changes of scenery and other factors in the recording that suggest it has been edited.

14. [14]
    Secondly, the defendant’s counsel submit that the recording on which the Crown proposes to rely should be excluded because, although the police could have downloaded it from either Rebecca’s or Peter’s telephone, they did not do so. It is not the best evidence, as it is not the original recording and the defendant cannot have its metadata tested to ascertain if it has been altered or edited before it was obtained by the police. The Crown should not be permitted to rely on a copy of a copy of a copy of a recording, as it is far from the best evidence and the provenance of the original, the accuracy of the copying process and the provenance of the copy to be relied on cannot be satisfactorily proved.^[12] There is also no adequate explanation why the original recording – on Rebecca’s telephone - is not available. It is not sufficient that she has simply refused to make it available. There is a high public interest, in addition to preventing unfairness to the accused, to uphold the principle that a party relying on words used in a document for any purpose other than that of identifying it must, as a general rule, adduce primary evidence of its contents unless its absence can be satisfactorily explained.

15. [15]
    Thirdly, the defendant’s counsel contend that Peter was acting as an undercover operative or agent of the police at the time of the recording. The conversation was not a “natural conversation” but in the form of an interrogation which it would be unfair and contrary to public policy to present to the jury. It allowed the police to undermine the defendant’s right to silence, as well as to bypass the procedural protections that would normally be given to a defendant in a police interview. This was particularly unfair or improper because it occurred in the context of the defendant having stated unambiguously, in his interview in 2019, that he wanted to talk to his lawyer if the police wanted to talk to him again after undertaking further investigations.

16. [16]
    Finally, the defendant’s counsel submit that Peter engaged in “standover tactics” when making the call and could inflict physical harm on the defendant through his prominent union position and physical strength relative to the defendant. Therefore, the telephone confrontation was not a “natural conversation” but was instead the actively forced elicitation of a confessional statement.

17. [17]
    The Crown maintains that the recording is highly probative, the defendant’s statements were voluntary, there was no impropriety in the conduct of the call and it would not be unfair to admit it as evidence. It submits that Peter was not acting as an agent of the police, nor did he engage in unfair or improper tactics in the conversation. Furthermore, the Crown disputes that the defendant indicated to the police in his interview that he would not cooperate in the future or that he intended not to make any further statements to the police. Indeed, after saying he might need a solicitor if the police wanted to talk to him again, he indicated that he was happy to cooperate and he would not deny what he had done. But in any event he was not dealing with the police in this telephone call and, even if he were, it should be considered as similar to a “pretext” call of the type that often occur at the behest and in the presence of police. The Crown noted that the use of pretext calls is a common investigative tool used by police in Queensland.^[13] The mere fact that the call was secretly recorded is not enough to make it unfair to the defendant to admit the recording into evidence.^[14]

18. [18]
    The Crown submits that the assertion that the copy of the video may have been edited is speculative and has no basis. There is no detail in the defendant’s submission about what indicates editing and it is not supported by watching and listening to the recording. Furthermore, the length of the recording (40 minutes and some seconds) is consistent with Peter’s call charge record which shows that the call lasted 40 minutes and 18 seconds and is also consistent with the clock in the car that is shown on the video on two occasions some 33 minutes apart. The copy recording of the telephone call should be accepted by the court as complete and legitimate.

19. [19]
    The Crown submits that there is no proper basis not to permit the copy held by the Crown to be tendered in evidence, whether or not the original is still available on the complainant’s telephone. However, in submissions made with leave after the hearing, counsel informed the court that the police now intend to attempt to obtain a download of the original video from the complainant’s telephone. If successful, that will at least overcome the defendant’s objection to the existing secondary evidence of the recording.^[15]

The legal principles

20. [20]
    Given the extensive and wide-ranging submissions by the parties, it is appropriate to set out in some detail what has been authoritatively stated about relevant legal principles before considering their application to the facts in this case.

Exclusion of confessional evidence

21. [21]
    In R v Swaffield; Pavic v The Queen,^[16] Toohey, Gaudron and Gummow JJ identified four bases on which, at common law, a confessional statement^[17] may not be permitted to be given in evidence. Their Honours relevantly said:^[18]

The first lies in the fundamental requirement of the common law that a confessional statement must be voluntary, that is, “made in the exercise of a free choice to speak or be silent”. The will of the statement-maker must not have been overborne. The relevant principle was stated by Dixon J in McDermott v The King in these terms:

If [the] statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also 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 second, third and fourth bases for the rejection of a statement made by an accused person proceed on the footing that the statement was made voluntarily. Each involves the exercise of a judicial discretion.

The second basis is that it would be unfair to the accused to admit the statement. The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person. The third basis focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused. The purpose of the discretion which is brought to bear with that emphasis is the protection of the public interest. The fourth basis focuses on the probative value of the statement, there being a power, usually referred to as a discretion, to reject evidence the prejudicial impact of which is greater than its probative value. The purpose of that power or discretion is to guard against a miscarriage of justice.

22. [22]
    Their Honours went on to discuss the term “unfairness”, noting that one thing is clear:^[19]

[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.

23. [23]
    Later, their Honours considered the admissibility of confessions secretly recorded. They particularly referred to and relied on a decision of the Supreme Court of Canada, where the Court identified two necessary questions:^[20]

The first was whether the friend was an agent of the State. The second was whether the accused’s statement had been elicited by the friend. The Court held that the friend was an agent of the State during the conversation. The meeting was set up and facilitated by the police and, without the intervention of the authorities, there would have been no conversation. The Court held further that the statement had been elicited because parts of the conversation were in the nature of an interrogation, not just parts of a conversation which flowed naturally. It concluded that the admission of the evidence would render the trial unfair.

24. [24]
    Their Honours went on to say:^[21]

it is no great step to recognise … an approach which looks to the accused’s freedom to choose 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, the 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. … It is therefore appropriate to develop the common law in Australia in terms of a broad principle based on the right to choose whether or not to speak.

25. [25]
    The two cases before the Court on that occasion involved different circumstances. In Swaffield, a police undercover officer targeting the defendant for different alleged offences recorded a conversation in which the defendant admitted to the charged offences, including arson. Swaffield had previously been charged with those offences but the charges had been discontinued. The plurality said^[22] that the critical point in his case was the absence of a caution ever having been given to him and upheld the decision of the Queensland Court of Appeal that the evidence should have been excluded at trial. The absence of a caution triggered the exercise of a discretion to exclude what was said but did not require exclusion. In the circumstances of that case the admissions were elicited “in clear breach of Swaffield’s right to choose whether or not to speak.”

26. [26]
    In contrast, in Pavic, police investigating a murder interviewed the defendant, having given him the usual warning and advised him that he had a right to communicate with his solicitor. Pavic chose not to answer the questions put to him. A few days later, police interviewed a friend of Pavic, who agreed to be fitted with a microphone to record a conversation with Pavic. In a subsequent conversation, Pavic made a number of inculpatory statements. The plurality said that Pavic’s friend –^[23]

must be regarded as an agent of the State. The meeting was not directly set up by the police but Clancy spoke with Pavic at the request of the police who equipped him with a recording device.

Nevertheless, their Honours concluded that there was no interrogation by the friend and therefore there was no sufficient basis to interfere with the trial judge’s refusal to exclude the evidence of the conversation.^[24]

27. [27]
    Brennan CJ recorded that there was no impropriety in the police obtaining the friend’s consent to recording Pavic and the fact that he was regarded as trustworthy by Pavic was an indicator of the reliability of the admissions he made. There was no public interest to be served by rejecting those admissions.^[25]
28. [28]
    In Tofilau v The Queen,^[26] the High Court again considered cases where confessions had been made to covert police officers. In separate reasons, the Court referred to and confirmed the principles set out in Swaffield to which I have referred above. Perhaps most relevantly, their Honours made the following statements.

29. [29]
    Gleeson CJ said:^[27]

First, the common law rules with which we are presently concerned apply, not only to confessions of guilt, but to all admissions sought to be used in evidence against an accused person at trial. … The admission may have been made to any manner of person, and in any kind of circumstance. It may have been made in response to a mistake, a misrepresentation (either deliberate or innocent), to the pressure of events or circumstances, or to mere inadvertence. It may have been made in circumstances where issues of legal rights or consequences, or considerations of choice either to speak or remain silent, never entered the mind of the maker. … Secondly, the use by the police of deception in the hope of eliciting admissions is not new. … The technique of deception used in Deokinanan v The Queen,^[28] where the police put an accused person’s friend in a prison cell with the accused in the hope of obtaining a confession, is common. These days, the friend would probably be equipped with a secret recording device. The Privy Council held that the confession was voluntary and admissible. … The parties to those conversations speak in the erroneous belief that they are not being overheard. They have no opportunity to consult a lawyer, or to take advice on what they should or should not say. They are not given any warning that what they say may be used against them. They do not waive any right to silence. Yet, if a suspect, in an intercepted and secretly recorded conversation, makes an admission, that admission is ordinarily and rightly regarded as voluntary. At least, it is not regarded as involuntary simply because the person making the admission is the victim of a form of deception.

30. [30]
    His Honour went on to consider the concept of voluntariness, describing it as protean. He referred to an early decision of the court^[29] in which the plurality “gave as an example of an involuntary statement one that is given in consequence of a threat made, or a promise of advantage given, by a person in authority. In the preceding sentence, however, they stated a wider proposition: ‘If [a statement] is made as a result of violence, intimidation, or of fear, it is not voluntary.’” His Honour went on to quote Dixon J from McDermott v The King,^[30] that to say that a statement has been voluntarily made means that -

it has been made in the exercise of [a person’s] free choice. … If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.

31. [31]
    The Chief Justice went on to state the following propositions.

    1. (a)
       Undercover police officers are usually not persons in authority within the rule, because the critical element is the perception of the person making the statement.^[31]
    2. (b)
       Since the original rationale for the principle of exclusion of involuntary statements was concern about the unreliability of statements made under coercion, that will sometimes be a useful guide in making a judgment about what kind of conduct will be taken to render a statement involuntary.^[32]
    3. (c)
       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.^[33]

32. [32]
    Gummow and Hayne JJ were of similar opinions, referring to the following propositions and observations.

    1. (a)
       It is neither necessary nor appropriate to extend the concept of “person in authority” beyond those persons known or believed by the confessionalist [sic] to have lawful authority to affect the course of the investigation of or prosecution for the offence in question.^[34]
    2. (b)
       Confessions made to someone not known or believed to be a person in authority will thus fall to be considered under the test of “basal voluntariness”. Basal voluntariness is concerned with confessions made under compulsion. The key inquiry is about the quality of the compulsion that is said to have overborne the free choice of whether to speak or to remain silent. In this context, “overborne” should be understood in the sense described by Dixon J.^[35]
    3. (c)
       What Tofilau had said to the undercover police officers posing as gang members and “the boss” were not statements made to a person in authority. Because he neither knew nor believed that those to whom he spoke had lawful authority to affect the course of the investigation of or prosecution for the murder, the rules about confessional statements to persons in authority were not engaged. The statements he made were not under compulsion and there was no duress or intimidation. There was no importunity, insistence or pressure of a kind exerted by those to whom the confession was made that would found the conclusion that Tofilau had no free choice whether to speak or stay silent. Observing that the appellant may have felt under pressure required no different conclusion. What was important was the absence of coercion by those to whom he spoke.^[36]
    4. (d)
       The chief focus of the discretionary questions that arise remains upon the fairness of using the accused person’s out-of-court statement, rather than upon the method of obtaining it.^[37]
33. [33]
    Callinan, Heydon and Crennan JJ referred to the same propositions. In considering whether a confession was the result of an unfair inducement or threat by a representative of the State, they concluded that:^[38]

Whether the basis of the inducement rule be reliability, preventing improper state coercion, disciplining the police, or avoiding unfair reductions in the choice of suspects to speak, a perception by the suspect that the coercive power of the state is being used is central. … Where that perception does not exist, the basis of the inducement rule is not present.

… 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.

34. [34]
    Their Honours went on to consider a submission that the undercover officers deliberately set about the scenario tactic to secure from the suspect a detailed confession which, had they gone about it by interview process, they could not have done without giving proper warnings and securing and advising that they could have the benefit of a solicitor. It was the essence of scenario evidence that the appellants in each case had to be denied their fundamental rights. Their Honours rejected the submission for a number of reasons, including most relevantly that it did not correspond with Dixon J’s test in McDermott v The King, which turned on an overbearing of the will. The appellants had chosen, of their own free will, to make the admissions to persons whom they did not perceive to be in authority.^[39]
35. [35]
    Their Honours also considered a submission that, even if the will of the appellants had not been overborne, “basal involuntariness” existed because the appellants’ freedom to speak or remain silent had been so influenced by deception, trickery or manipulation that there had been no effective exercise of the freedom. They noted that the undercover police officers did not use violence on any appellant and they did not threaten it. The officers did not threaten any illegal act directed against any appellant and they did not threaten any illegal act against any third party whose position might cause an appellant to speak who otherwise might have remained silent.

36. [36]
    Swaffield and Tofilau were considered by the Court of Appeal in R v Cowan.^[40] In that case, the appellant had been interviewed by police a number of times, long before he was charged with murder. He was given the usual warning on one of those occasions. On each occasion, he denied his involvement. In the last, lengthy interview he told the police a story about his whereabouts at relevant times and, at the end of the interview, he agreed that he would be prepared to talk with the police again “if something else comes up.” A coronial inquest occurred some four years later, at which the defendant was questioned and was told that he was under suspicion. Following his appearance at that inquest, the police undertook a covert operation in which officers pretended to be part of a criminal gang and told the defendant that he would be allowed to participate in a “big job” as a member of the gang only if he told the truth about his involvement in the death of the deceased. He told the “Mr Big” of the gang details of how he came to kill the deceased and to dispose of his body. That conversation was recorded and the recording was admitted in evidence at his trial.

37. [37]
    McMurdo P (with whom Fraser JA generally agreed, as well as in the result) specifically considered a submission that the confessions ought to be excluded under s 10 of the Criminal Law Amendment Act 1894, which provides:

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

38. [38]
    Her Honour found that the undercover police officers were not, nor were they perceived by Cowan to be, persons in authority.^[41] Section 10 therefore had no application.

39. [39]
    Her Honour then went on to consider whether the confessions should be excluded as unfair or as an abuse of process. She recorded^[42] that, as in the case before me, Cowan had placed much weight on the fact that in the past he had exercised his right to silence in that he had not made any admissions to police when interviewed. But, her Honour concluded:

in fact he did not exercise his right to silence. He freely spoke to police on numerous occasions although he consistently denied all involvement in Daniel’s disappearance. This was his right: nemo tenetur se ipsum prodere (no one is required to incriminate himself or herself). But that cannot stop the police from continuing their investigations, especially of serious crimes involving the safety of children and young people. That is why police undertook this covert operation.

40. [40]
    Her Honour went on to note that the undercover police officers were not exercising the coercive power of the State when Cowan confessed.^[43] Ultimately, she held that neither questions of unfairness nor public policy warranted the exclusion of the evidence. The judge’s decision not to do so was a sound discretionary exercise and there had been no miscarriage of justice.^[44]
41. [41]
    It is relevant to record that Cowan unsuccessfully sought leave to appeal to the High Court from that decision. One ground of appeal, although not addressed orally, was that the confession ought to have been excluded in the exercise of the court’s discretion. In refusing special leave, the Court said that it had insufficient prospects of success to warrant a grant of special leave.^[45]

Secondary evidence

42. [42]
    Although the Crown has belatedly indicated that the police now intend to seek to download a copy of the recording directly from Rebecca’s telephone, they may not succeed in obtaining such a copy. It is therefore still necessary to consider whether the copy on which the Crown has so far intended to rely should be excluded as inadmissible and unreliable secondary (or indeed tertiary) evidence of the conversation and the recording.

43. [43]
    As I indicated above, the defendant’s counsel relied on the principles discussed in Butera v Director of Public Prosecutions (Vic).^[46] In that case, a recording of a conversation between alleged co-offenders was admitted in evidence. The conversation was partly in English and partly in several other languages and in parts the recording was muffled or indistinct. Two interpreters translated orally what they heard from the recording and produced written translations of the foreign language parts, which were themselves tendered and were available to the jury during its deliberations. The issue in the appeal was whether the written translations, being secondary evidence of the conversation recorded, were admissible. Although that issue is not present in this case, the members of the Court set out clearly the law as it applies to the admissibility of recordings of conversations and of copies of such recordings. It is useful to set out relevant passages from the reasons.

44. [44]
    The plurality^[47] said the following.
45. [45]
    First, their Honours noted that, to prove the content of the conversation in that case:^[48]

Two facts were to be proved: first, that the conversation had taken place in the circumstances and among the participants alleged by the prosecution, and second, the content of the conversation translated into English.

The means by which the first of those facts was proved was by tendering the tape recording and, one assumes, proving the circumstances in which the recording had been made and the custody in which the recording had been kept until it was played to the court at the trial. … The courts have now accepted tape recordings as evidence of the conversations or other sounds recorded on the tape: … it is obvious that the provenance of the tape recording must be satisfactorily established before it is played over to the jury.

46. [46]
    Later, their Honours said:^[49]

Prima facie, the issue whether the recorded conversation took place should be proved by playing the tape in court if it be available, … That is the consideration which weighed with Street CJ in Conwell v Tapfield^[50] when he said:

What is the best evidence of the sounds entrapped in the record? It seems to me that there can be only one answer to this question, namely, the best evidence is the reproduction of those sounds as sounds when the record is played by appropriate sound reproducing equipment.

That view is clearly right … That is not to say that the tape is itself the admissible evidence of what is recorded on it. A tape is not by itself an admissible object for by itself it is incapable of proving what is recorded on it: it is admissible only because it is capable of being used to prove what is recorded on it by being played over. By using sound reproduction equipment to play over the tape, the court obtains evidence of the conversation or other sound which is to be proved; it is that evidence, aurally received, which is admissible to prove the relevant fact.

If the tape is not available and its absence has been accounted for satisfactorily, the evidence of its contents given by a witness who heard it played over may be received as secondary evidence. … assuming the provenance of the tape is satisfactorily proved, no question of its credibility can arise. Nevertheless, when the tape is available or its absence is not accounted for satisfactorily, there can be no reason to admit the evidence of an out of court listener to the tape recording to prove what the tape recorded: it should be proved by the playing over of the tape. Prudence and convenience combine to support the application of the best evidence rule in such a case.

47. [47]
    Finally, their Honours considered the admissibility of copies of tapes:^[51]

It is desirable to add, however, that the best evidence rule is not applicable to exclude evidence derived from tapes which are mechanically or electronically copied from an original tape. Provided the provenance of the original tape, the accuracy of the copying process and the provenance of the copy tape are satisfactorily proved, there is no reason why the copy tape should not be played over in court to produce admissible evidence of the conversation or sounds originally recorded. There is no reason to apply the best evidence rule to copy tapes: Reg. v Matthews and Ford;^[52] Kajala v Noble;^[53] Reg. v Papalia; Reg. v Cotroni.^[54]

48. [48]
    Dawson J, agreeing in the result, said that it is now accepted that a tape recording is, so to speak, the auditory equivalent of a photograph^[55] and he later opined:^[56]

If then a tape recording is of a documentary character such that it is discoverable, does that mean that its contents must be proved by the production of the original tape and cannot be proved by means of a copy, either in the form of another tape or in the form of a transcript? Such a rule applies to written documents, namely, that the effect of a document must be proved by the production of the original document itself and not by secondary evidence of its contents unless the absence of the original is accounted for and excused. That rule appears to have preceded the so-called best evidence rule which is said to require the best evidence to be given which the nature of the case permits … documents, other than written documents, ought not now to be, if they ever were, included in the rule requiring proof by primary evidence.

Of course, some modes of proof are better than others, but that, save in the case of written documents, goes to weight rather than admissibility. Relevance is the ordinary test of admissibility, although in criminal cases the trial judge has a discretion to exclude relevant evidence if it operates unfairly against the accused as it does when its prejudicial effect outweighs its probative value or on grounds of public policy when it has been unlawfully or unfairly obtained. The production and playing of an original tape recording remains the best means of proof of its contents, at least where it is audible, intelligible and the words used are in the English language.

49. [49]
    Finally, Dawson J explained when a transcript of a tape recording may be admissible:^[57]

To be admissible a transcript must be properly proved and this will require evidence to be given that it faithfully transcribes what is on the tape and, if it is a translation, that it properly translates the language used. The person giving that evidence will be subject to cross-examination and, if the transcription or the translation, or a combination of both, is contested, then the matter may be fully aired as it was in this case. The weight given by the jury to the evidence constituted by the transcript may be much affected by such a cross-examination.

50. [50]
    The judgments in Butera have been discussed by appellate and other courts in many cases since its publication. In particular, the passages set out at [47] and [48], at least the former of which appear to be obiter dicta, have frequently been approved and

applied. An example is Director of Public Prosecutions v Selway (No 9),^[58] in which Cummins J held that an enhancement of a recording should be allowed in evidence. Having referred to Butera and other cases, his Honour said:

the modern trial is not a Luddite exercise, and the use of modern technology is permissible provided the critical criteria are satisfied of the provenance of the material, and equally importantly the critical criterion is satisfied that the defence has full and proper locus to test and challenge that methodology.

Tampering with the recording

51. [51]
    The defendant’s counsel in the case before me referred to the possibility that the recording on which the Crown relies may be different from the original, having been tampered with or altered in some way and it would therefore be unfair to the defendant to allow its use in evidence at the trial. But simply to make an allegation of tampering does not demonstrate that a recording (or a copy of a recording) has been altered or tampered with. Nor is there any rule that any possibility of tampering must be excluded before a video recording is admissible. In most cases, a viewing of the video tape will be a natural place to commence a consideration of whether a video tape shows signs of tampering or discontinuities which may raise questions about its authenticity, accuracy and integrity.^[59]
52. [52]
    For example, the Victorian Court of Criminal Appeal^[60] said the following after referring to Butera:

The essential circumstances which, as we understand it, were relied on by [counsel for the applicant for leave to appeal] as not having been shown to exist were the absence of any evidence of a witness that he or she heard the conversation said to be on the tapes and of any evidence that the tapes had not been tampered with, doctored, edited or in some way interfered with. Accordingly, it was said that the possibility that the tapes were not authentic or accurate had not been excluded and that this circumstance rendered them inadmissible. …

The test is whether there is sufficient material before the court to allow the tribunal of fact acting reasonably to conclude that the recorded sounds reproduce those originally made by the persons identified by the evidence. In other words, there must be evidence, which the tribunal of fact is entitled to accept, that the recording is of a conversation which occurred and which would be admissible if proved by oral testimony. In our opinion, admissibility does not depend on the party tendering the tapes having removed absolutely any chance that they are inaccurate.

53. [53]
    More recently a defendant asserted that a recording of a conversation with him in a pretext call had been tampered with to his detriment. The Court of Appeal of Western Australia dismissed those assertions as there was no actual evidence beyond the appellant's assertion and speculation that the disc containing the recording of the call had been tampered with by any person. The issue as to the veracity of the recording of the call was before the jury. The evidence at trial was all one way - it supported the proposition that the recording was authentic and unaltered.^[61]

54. [54]
    It is now necessary to apply these principles to the issues before me.

Discussion

Is the recording so unreliable that it should be excluded?

55. [55]
    It is convenient first to consider defence counsel’s assertions that the copy tape on which the Crown relies is unreliable and appears to have been altered.

56. [56]
    The assertions are based principally on a number of matters that counsel submitted were suggestive of tampering. They submitted that it was unclear or inaudible in places, there were discrepancies between the length of the conversation and times shown in the recording, there was some apparently inexplicable scenes external to the car that jumped from one scene to another as if the recording had been interrupted or a portion excised and there were discrepancies between the video and the audio recording in places.

57. [57]
    I have viewed and listened to the recording, having in mind the criticisms made of it by the defendant’s counsel. In my view, there is nothing that indicates that the recording has been altered or tampered with, even though in places something said by one of the speakers is not completely clear. It is not unusual for recordings of conversations to be unclear in places. There are no visual discrepancies that I can see, particularly that indicate any tampering or that it authenticity is otherwise unreliable. The total time of the video is 40 minutes and 40 seconds. The car clock showed the time at 14:08 at the beginning of the video, 14:41 after 33 minutes of the recording and 14:48 at the end. All of those times correlate. The recording itself and those factors contradict, rather than support, the assertion that it has been altered since it was recorded. I disagree with the other criticisms of the recording that were made in counsel’s submissions (both written and oral).

58. [58]
    But in any event, the authenticity of the recording is a matter for the jury to determine if it is challenged at trial.^[62] In doing so, the jury will properly consider any oral evidence about the creation and custody of the recording, as well as its contents.

59. [59]
    The recording is not so poor or so obviously altered that it should be excluded as clearly unreliable. The probative value of the relevant parts of the recording is not outweighed by the prejudicial impact of the evidence. I reject this part of the defendant’s submissions.

Should evidence of the conversation otherwise be excluded?

60. [60]
    I have dealt with the first basis on which the defendant’s counsel submitted the evidence should be excluded (unreliability and possible altered recording – see above at [13]). I shall deal later with their second submission (secondary evidence – see above at [14]). I shall now consider their submissions that it would be unfair to the defendant to allow the evidence to be played at trial because Peter was an agent of the police, a person in authority and he used “standover” tactics to extract admissions from the defendant (see above at [15] and [16]). The ultimate submission is this regard was that the admissions were not voluntarily made and are therefore unreliable.

61. [61]
    I disagree that Peter was an agent of the police when he made the telephone call. Although he told the police that he was considering confronting the defendant and the police suggested that, if he did so, he record the conversation, the idea of confronting the defendant was his alone. Having decided to do so, it was clearly advisable that the “confrontation” be recorded. The police did not set up the recording, although they advised it. Peter and Rebecca themselves arranged the recording.  This was not a situation where, for example, the conversation would not have occurred without the intervention of the police.^[63]

62. [62]
    The circumstances in which the conversation occurred and was recorded are completely different from those in the cases to which I have referred in discussing the principles, including Pavic. Here, not only was the conversation not set up by the police, they had nothing to do with it, including not themselves recording it. Those circumstances did not deny the defendant his “right to silence”.^[64] Indeed, he had never asserted such a right. Although he had asked the police, in 2019, whether he would need a solicitor if he faced further questioning, he had also said that he would cooperate if the police did want to talk to him again. Furthermore, on that occasion he was given a caution that he was not obliged to say anything to the police, then or later.^[65]
63. [63]
    Nor was Peter a person in authority. It is clear that the defendant did not consider him to be such a person. Certainly he did not perceive that Peter had lawful authority to affect the course of the investigation of or prosecution for the offence in question,^[66] nor that he was a person who had the lawful authority of the State to investigate the circumstances.^[67] Section 10 of the Criminal Law Amendment Act 1894 therefore has no application. But, in any event, Peter made no threat or promise to the defendant that did or may have induced a confession from him.

64. [64]
    In my view, the telephone call that the complainant recorded was – and would have seemed to the defendant to be – a natural, although no doubt unpleasant and confronting, conversation with his son who, in the context of Rebecca’s recent attempts at suicide, was seeking to obtain an explanation from the defendant of what he had done to her – the defendant’s granddaughter. Seen in that light, the conversation was a natural (and, at times, naturally a little heated) conversation between two family members about the conduct of one toward a third. There was nothing contrived about it. It certainly commenced and progressed in a more natural manner than many pre-text telephone calls that I have heard in the past. Nor did the fact that Peter continued to ask the defendant what he did and, at times, became a little heated, mean that the conversation constituted an interrogation of the defendant that would make it unfair to put the recording before a jury. The defendant could have terminated the conversation at any time, but instead he continued voluntarily to engage in it and to make the confessional statements that he did. (I note also that he expressly denied doing some things alleged against him.) Finally, I do not accept that Peter used standover tactics in his conversation with the defendant, nor that there was any threat (actual or implied) of physical harm to the defendant if he did not admit what he had done to Rebecca. Nor was the defendant overborne^[68] in any other way.

65. [65]
    I do not consider that it would be unfair to the defendant for the recording to be played to the jury.^[69] It was not created in circumstances which may affect the reliability of the defendant’s statements made in the course of the conversation.^[70] Nor was it obtained in circumstances making it unacceptable having regard to community standards.^[71]

Should secondary evidence of the recording be excluded?

66. [66]
    In case it is not possible to download the original recording from Rebecca’s telephone, it is necessary to address the defendant’s submission that the copy on which the Crown seeks to rely should not be permitted in evidence at the trial.

67. [67]
    I recorded above^[72] Dawson’ J’s explanation of when a transcript of a tape recording may be admissible. That passage, in my view, is equally applicable to a copy of an original recording of a conversation and, particularly in light of the plurality’s statement set out at [47] above, to a copy of such a recording.

68. [68]
    There has been no explanation that I presently consider adequate, of why a direct download of the recording from Rebecca’s telephone has not been made. The explanation so far appears to be that Rebecca was not prepared to give the police access to her telephone to enable them to view the original or to download a copy. Thus, it can properly be said that Rebecca, as the complainant, has made a deliberate decision to withhold that evidence. Of course, if the original recording still exists, she could be required by subpoena to produce it at trial and to enable the original to be played to the jury.

69. [69]
    However, that does not mean that a copy of the recording (either that now relied on by the Crown or a downloaded copy if the police succeed in that task) must necessarily be rejected as evidence of the conversation. There will clearly be evidence from both Rebecca and Peter about the recording having been made, Rebecca “air-dropping” it to Peter and Peter uploading that copy to “evidence.com”. There will clearly also be evidence from a police officer about downloading the recording from that website and what happened to it thereafter. As I noted above, the copy recording appears not to have been altered.

70. [70]
    The defendant’s counsel referred me to R v Curran & Torney,^[73] and R v Ainsworth,^[74] but really only as examples of the application of the principles explained above. The situation here is completely distinguishable from both those cases.

71. [71]
    In Curran, a police officer deleted parts of a recording taken of conversations between Torney and another prisoner, in which Torney made statements that indicated that he had participated in a murder. The officer made a fresh recording of only those parts of the conversations that he considered relevant to the charge of murder. McGarvie J noted that fairness required that, if the Crown relies on part of a conversation as containing admissions, the accused is entitled to put the whole of the conversation in evidence so that the parts relied on by the Crown can be heard in context of the whole conversation. That was no longer possible. His Honour also noted that the Crown case was strong even if the tape was excluded from evidence. His Honour most relevantly said:^[75]

The consideration which I regard as carrying great weight is the absence of the whole of the originally recorded conversation on the tapes. The original records of conversations to be put in evidence should always be retained: … In this case it is impossible to know whether the accused would be done an injustice if the present tapes are admitted. …

It is necessary to balance the strong public interest in bringing to justice those indicated by the Crown evidence to be the perpetrators of a serious and callous offence, against the considerations of fairness and public interest which tell against the admissions of these tapes. I consider that, balancing the various considerations which I have mentioned, the proper exercise of my discretion in this case is to exclude evidence relating to the conversations … and the tape recordings of it.

72. [72]
    In Ainsworth, the relevant video footage showing the defendant involved in acts relevant to the charges against him had been deliberately deleted by police after an officer had watched the footage and made notes of what he had seen. The Crown sought to call evidence of the officer about what he had seen on the footage. Ann Lyons J considered that there had been a deliberate decision to delete the video and there was not a satisfactory explanation for that conduct. The video could not be resurrected, nor could secondary evidence given about it, in those circumstances. But even if there had been a satisfactory explanation, her Honour considered that the evidence should be excluded in fairness to the defendant because the officer would in essence be giving evidence of his conclusions from watching apparently poor quality videos.

73. [73]
    In contrast to those cases, although Rebecca appears (so far, at least) to have made a conscious decision not to allow anyone else to see, or to download a copy of, the original recording on her telephone, the recording on which the Crown currently relies appears to be (and her evidence and that of Peter will apparently say it is) a complete copy of the original, none of which has been deleted or, it seems, otherwise manipulated. It is unnecessary for the Crown to rely on a person’s notes or recollections of what was on the original recording. The circumstances are completely different to those in either Curran or Ainsworth.

74. [74]
    As Cummins J said in Selway,^[76] the use of modern technology is permissible provided the critical criteria are satisfied of the provenance of the material and that the defence has full and proper locus to test and challenge that methodology. Presumably Rebecca and Peter will say that the copy recording is a true and unchanged copy of the original. That evidence can be fully tested by the defence. Whether any of that evidence is accepted by the jury is a matter for the jury.

75. [75]
    Of course, the best evidence of the conversation would be the original recording that, at least at one stage, was on Rebecca’s telephone. If that recording still exists and can be played or accurately downloaded from her telephone, that is what should be tendered and played in evidence. It does not appear to be an acceptable excuse for relying on a copy of the recording that the complainant is refusing to allow access to the original. As I have said, if it exists, the Crown could effectively compel her to produce the original recording and, if it is necessary for that purpose, to produce the telephone and to allow the recording on it to be played, by issuing a subpoena to her to do so.

76. [76]
    But, if it is no longer possible to obtain access to the original recording, I do not consider that it would be unfair to the defendant to allow the copy of the tape to be tendered in evidence if (as appears to be the case) evidence of its provenance and custody is given and the defence can test that evidence in the usual way.

Conclusion

77. [77]
    For these reasons, the application to exclude the evidence is dismissed.