New South Wales District Court CITATION: R v Vito, Sione Taulata [2008] NSWDC 333 JUDGMENT DATE: 19 December 2008 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Application to exclude evidence is rejected. CATCHWORDS: Criminal Law - Sexual Assault - Evidence_ Application to exclude "pretext" conversation - Interlocutory Judgment - charges - sexual intercourse without consent (x5) - rural setting - early complaint - early police involvement - distinction between lawful entitlement to arrest and compulsion to arrest - distinction between sole suspect and arrested suspect - pretext phone call to accused initiated by police - purpose - to advance prosecution case - lawfully recorded conversation - complainant speaks to accused - accused unaware of purpose of call or police involvement - admissions made by accused - nature of instructions by police to complainant prior to call - whether conversation amounted to interrogation - relationship between complainant and accused at time of call - no unfairness Listening Devices Act 1984 LEGISLATION CITED: 2.90, s.137, s138 Evidence Act 1995 Crimes Act 1900 Law Enforcement (Powers and Responsibilities) Act 2002) Reg v Doolan [1962] Q. L. R. 449 CASES CITED: Em v The Queen (2007) 239 ALR 204 at pp 248-249 Swaffield (1998) 192 CLR 169 at [35] Broyles v The Queen [1991] 3 S.C.R. 595 at [30] per Iacobucci J PARTIES: Regina Sione Taulata Vito FILE NUMBER(S): 2007/00009231 COUNSEL: Crown: S. Herbert (Crown Prosecutor) Defence: M. Pickin JUDGMENT Application to exclude pretext conversation between Complainant and Accused. 1. Sione Taulata Vito has pleaded not guilty to six charges of sexually assaulting T. Mc. Five of the charges are sexual intercourse without consent, knowing T. Mc. was not consenting. The remaining charge is an allegation of attempting to have anal sexual intercourse without consent. All offences are said to have occurred on the 17th February 2007. The Crown Case 2. The Crown case is that the complainant met the accused on a dance floor at the Vandenberg Hotel, Forbes sometime after 11:30pm on Friday 16th February 2007. She was a local; he was visiting from Orange. Both by this time had consumed significant quantities of alcohol. After some initial reluctance the complainant chose to dance with the accused, was impressed with his physique, his charm and courtesy towards her. Again after some initial reluctance, she consented to his coming to her residence in Forbes. They talked over a drink and ultimately she made to retire to bed. He did not leave the residence, but shortly after made his way to her bedroom. While not exactly welcoming him, neither did she shoo him out. He lay on the bed, one thing led to another and they kissed each other. Both, under the blankets, ended up naked. There was consensual sexual foreplay by each towards the other. That in turn led to the complainant performing fellatio upon the accused. It was only a matter of seconds before she felt the accused grab the back of her hair, and thrust her head down the shaft of his erect penis with force. For her it was as though a different person had entered her bed. That event was followed by the penile penetration of her vagina (count 1). She called upon him to stop. He refused to listen or comply. Having cum on her vagina and stomach, he left the bed for the bathroom, threw a hand towel to her saying, "Clean yourself up." 3. He took a shower, returning five minutes later. The complainant had retreated to the lounge room. She told him he had to go, that he couldn't stay. He pushed her on the lounge so that her stomach was on the lounge, knees on the floor, and back towards him. He placed his hands on her back forcefully trapping her. Using his erect penis he entered her from behind, for penile vaginal intercourse (second count). The complainant said, "Please don't do this." He did not stop. 4. From the lounge she ended lying face down on the floor next to it. Initially he maintained his penetration of her vagina. She called on him to stop, he did not. Then he withdrew his penis from her vagina and attempted to have anal intercourse with her. He penis would not enter her anus. (third count). Unsuccessful on that attempt he re-entered her vagina having penile vaginal intercourse with her (fourth count). He ejulactated on the outside of her vagina and on her buttocks. She commenced crying. Again she wiped his semen from her using the hand towel earlier thrown to her by the accused. Again she asked him to leave. 5. He used his mobile phone to speak to a friend; she retreated to her bedroom, lying in bed terrified. When he finished his call, he again followed her into the bedroom; entered her bed and commenced to kiss her. He entered beneath the covers engaging in foreplay. He penetrated her vagina with his fingers (count 5), rolled her onto her back, moved on top of her and commenced to have penile vaginal intercourse with her (count 6). Again he withdrew and ejaculated on her vagina and stomach. 6. By now it was 9:30am. 17th February. She offered to drive him down the street, returned home, showered and then complained to one of her friends. On 18th February she reported the matter to police. On 27th February she made a 48-paragraph statement. On 8th March 2007 she attended the Forbes police station where she met Dt S/Constable Scott Wilcox. At the request of police she telephoned the accused's mobile number. The accused and complainant had exchanged mobile phone numbers sometime early on 17th February. He answered the phone. She engaged him in conversation. Significantly in that call she sought out his address, employment details and a response to her challenge to him in respect of his treatment of her on the morning of 17th February 2007. The Defence Case 7. Both the Crown and I understand the defence case is an acceptance of the alleged sexual acts, but a claim the complainant consented, or if there was an absence of consent, the accused had no knowledge that she was not consenting. Although, defence counsel said the accused when arrested made "general denials" at that time, and later exercised his right to silence. An objection is made 8. The defence objects to the tender of the CD containing the voice sounds of the interchange between complainant and accused in this call. The defence argument is that it contains no admissions, and therefore has no probative value at all. Alternatively, the argument is that the complainant was an agent of the police when the call was made, and in that capacity was required to caution the accused that anything he said could be used in evidence against him. The defence relies upon s. 90 and s. 138 of the Evidence Act 1995. The Pretext Phone Call – preparation 9. Dt S/Constable Wilcox applied for a warrant under the Listening Devices Act 1984 on the 7th March 2007. His Affidavit in support of the warrant Dt Wilcox reviews the forensic progress that had to that point been made in his investigations. He makes clear he regards the accused as the only suspect, that he is seized of all details the Complainant has given to him in her detailed 48 paragraph statement. Dt Wilcox also had the accused contact mobile phone number. 10. Dt Wilcox either had evidence from one Bernadette Davis, an associate of the Complainant's, or access to her for the purposes of obtaining evidence that she had called the accused on the 17th February obtaining evidence that he was at the Vandenberg Hotel on the night of 16th February 2007. There was further evidence from an Orange based police officer, Constable Webster, who spoke to the accused in the early morning of 17th February at the Vandenberg. By the time of his affidavit Dt Wilcox would have had the hand towel and a pair of socks said to be the accused's given to him by the complainant, knowing there was a potential for DNA evidence from one or other or both. 11. Once in possession of the accused's mobile phone number Police initiated enquiries with the telecommunications providers. They were provided information that the phone was subscribed by Leonie Vito of Pinpala Place Orange. Police records placed the accused at that address on 2nd June 2006. 12. Police Records showed the accused had a criminal history that included violence and breaches of apprehended violence orders. It was also discovered he was on bail for an unrelated sexual intercourse without consent charge, having some similarities to the instant case. When arrested on 8 November 2004 (nearly 3 years earlier) an interpreter was required due to the accused's then limited English. Constable Webster confirmed that while the accused English is still limited, he was capable of having a conversation. Both Davis and the Complainant had only spoken to the accused in English. Apparently they had been understood by him, and he by them without difficulty. 13. Dt Wilcox was seeking to strengthen the Crown case by using a connection between complainant and accused in the hope of generating conversation between Complainant and accused in respect of the sexual assaults complained of by her. I am satisfied he was also seeking to obtain details of the accused's current address. Whether he had details of the address is uncertain. What I am confident of is that he had the means of ascertaining the accused's address by other means if it was necessary. The police at Orange knew the accused. He was also on bail, which probably had reporting conditions. There was also a forensic gain for the prosecution if a telephone interchange between accused and complainant could establish the accused's fluency in English was sufficient to corroborate the Complainant's account of their meeting at the Vandenberg hotel. It could also establish that he was capable of understanding her when she rejected his sexual approaches, told him to leave and that she did not want to be his girlfriend. 14. Dt Wilcox's evidence is: Well, we wanted to … secure the evidence and get evidence of the relationship between the two and also that Mr Vito had, indeed, come to Forbes and met Ms T Mc and they had gone back to her house and that something happened and at that time there was no other way of getting evidence, other than conversation between the two. (Trans 16/12/08 p.14). 15. Dt Wilcox's evidence is that he would not have arrested the accused on the information he had prior to the phone call. I am satisfied Dt Wilcox had made a decision not to arrest the accused prior to making an application for a warrant authorising a listening device. I am satisfied that at the time he made the application there was credible and sufficient information available to Dt Wilcox to suspect on reasonable grounds that the accused had committed a number of offences contrary to sexual assault provisions of the Crimes Act 1900.(see s.99 Law Enforcement (Powers and Responsibilities) Act 2002). 16. There is however a difference between having the power to arrest a person and being compelled to exercise the arrest power. So far as I am aware there is nothing in law or common sense requiring a police officer to arrest a suspect when reasonable grounds exist, if further investigative procedures may provide an opportunity of strengthening the available evidence against that suspect. I am satisfied Dt Wilcox was seeking to strengthen the evidence against the accused. Had his application for a listening device warrant been refused, there is little doubt Dt Wilcox would have been entitled, subject to other provisions of the Law Enforcement (Power and Responsibilities) Act to arrest the accused, and it is likely he would have done so. More importantly, as at 8th March 2007 Dt Wilcox had sufficient evidence available for him to charge the accused, but he was not obligated to do so, particularly if further investigation could strengthen the case against the accused. 17. It follows from all this, that the accused was not an arrested suspect at the time of the call. It also follows Dt Wilcox was still pursuing investigative initiatives. That is to say, the case was still in its investigative stage, even though Dt Wilcox had settled upon the accused as the sole suspect. Making the Telephone Call 18. On the morning of the call a listening device was installed. The complainant attended the police station to make the call pursuant to an arrangement earlier made. She was given an opportunity to look at the equipment she was to use. She understood the call was to be recorded. 19. There was discussion about desirable topics that could be covered in the call. These included making conversation, seeking the accused's address, and work place. She was asked, if she felt up to engaging him in conversation about the events of the 16th - 17th February. No specific questions were written out – as I say, potential topics were mentioned. I have no doubt the complainant believed the discussions she was to embark upon might produce, and were intended to produce if possible, further evidence against the accused. Of course she would also have appreciated the nature of the evidence being sought was self-incriminatory evidence coming directly from the accused. 20. From Dt Wilcox's perspective, any acknowledgement of the complainant by the accused in the phone call would have been regarded as a successful outcome. Anything over and above such an acknowledgement would be a bonus. 21. The procedure involving the call took 11minutes commencing 12:50pm. on Thursday 8th March. It would be open for a tribunal of fact to glean the following from the call: * The accused was a willing participant in the call. All that was said by him in the call was voluntarily spoken. * That vis a vis the complainant and himself, the accused was at no disadvantage speaking to her. They were speaking as equals. There was no power imbalance. Nor was there any difficulty one had understanding or speaking to the other. * The accused was not aware the call was being captured by recording, or that it was being obtained for evidential purposes, or that the complainant was at the Forbes police station, or was in anyway connected with, or potentially oversighted by police during the call. * The accused enthusiastically recognised the complainant and was pleased to speak to her. At the conclusion of the call he told her he loved her. * The accused was keen to pursue the complainant, including welcoming her to Orange, or attending Forbes to see her there. * The accused had sought to contact the complainant on more than one occasion since their last encounter. * The accused willingly gave the complainant his residential address. * The accused willingly gave to the complainant details of his employer and the nature of the work he performed. * When confronted by the complainant with the proposition that when they were having sex, she had asked him to stop, and he didn't, the accused did not question the assertion, nor deny it, but rather sought to explain it by professing a love for her; and subsequently apologising, and returned to the apology late in the call. * The complainant was fearful the accused may visit her in Forbes within the relative immediate future, and was keen to avoid any meeting with the accused. She may have been concerned he knew her address and told him she was moving. The accused sought to ingratiate himself with the complainant by offering to help. She sought to avoid having him assist her. A fair reading of this passage would suggest while he was sincere in his desire to help, she was fabricating her intention of moving from Forbes. * The accused nominated others who were at the Vandenberg Hotel with him on the night of 16th February. * The accused went to Bedgerebong, returned possibly to Forbes, and waited in a motel room from which he rang the complainant, reasonably expecting her to pick him up. He left his motel room to go to "the facility" where he waited outside until early morning, returning to the motel room about 2:00am when "we" went to bed. As presently advised the full significance of that matter is unclear. * The accused conceded he was really drunk on the 16th – 17th February. 22. The Court had the opportunity of hearing the voices of the parties participating in the call. The tone, timbre and expression of the voices, particularly the voice of the accused, gives an impact to the evidence flowing from the call that is missing in the transcript. The defence submissions 23. The Crown had argued the relevance of the telephone call was that it provided admissions against interest by the accused and evidence supportive of the Crown case. The defence in answer to the argument that the call provided evidence of admissions submitted there is nothing contained within the interview that constitutes an admission because there was nothing said by the accused that amounted to or was capable of amounting to an acceptance of the proposition put by the complainant that she and the accused had had sex together, that she had asked him to stop, and that he had not stopped. 24. Alternatively, it was argued the evidence generated by the telephone call failed the tests laid down by s.138 and s.90 of the Evidence Act 1995. The defence position was that, but for the intervention of police the call would not have been made between complainant and accused, and some of the matters discussed, including the accused address, workplace, and events of the 16th and 17th February, would not have been discussed. In those circumstances the Complainant was an agent for the police, and in that capacity obliged to caution the accused that anything he said could be used as evidence against him. The Crown Submissions 25. The Crown argued the failure of the accused to deny the allegation when it was put to him, and apologies, multiple times are not equivocal, but responses made by the accused in response to the allegations put to him by the complainant. As such they are capable of amounting to admissions within the broad definition contained in the Evidence Act 1995. 26. In respect to the covertness of recording of the conversation between complainant and police, the question of whether there was any intention to arrest the accused at that point is not determinative of admissibility. What is determinative is whether the complainant was, in fact, a state agent, whether there is material, which has been used in obtaining the admissions which makes it unfair. The Question – Admissions or not? 27. The Dictionary contained in the Evidence Act defines "admission" in these terms: Admission means a representation that is: a.) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and b.) adverse to the person's interest in the outcome of the proceeding. 28. In one way or another the following representations come within that definition: the accused's recognition of the complainant, his keenness to pursue her; his seeking contact with her on an occasion subsequent to the 17th February; his declared on-going interest in the complainant; his absence of denial of what otherwise was an allegation of criminal and anti-relationship behaviour of continuing to have sex with her when she was not consenting; alternatively, his failure to volunteer that he didn't realise she was not consenting or some other explanation that went to the issue; his offering an explanation that sought to excuse the behaviour "I love you"; his on-going apologies commencing with the making of the allegation; his concession that he was very drunk; and his level of fluency in English as exhibiting a capacity to understand English to a level where he would know words of rejection such as "stop", "get out" "leave now" and the like. As I have already indicated, each of these representations is available to the tribunal of fact on a fair hearing of the recorded phone call. 29. Mr Pickin, counsel for the accused sought to argue the admissions if they existed were so equivocal they should be withheld from the jury. He sought to rely upon a Queensland case of Reg v Doolan [1962] Q. L. R. 449 as authority for the proposition. With respect, Doolan is not authority for such a proposition. Police showed to the accused, Doolan, a copy of a statement from an alleged co-offender implicating him as having a role in an assault and robbery. Doolan's comment upon reading the statement was: I thought that bastard had more bloody sense than to give you fellows a statement. He has dubbed us all in." 30. Upon that basis it was apparently sought to tender the written statement of the co-offender as evidence against the accused. Townley J, with whom Mansfield C.J and Philp J agreed said: [The accused's] comment was, to say the least, equivocal and, in my opinion, could not be taken as an unequivocal admission of the truth of the contents of the statement…Here I think the appellant's comment was such that it would be dangerous to accept it as an admission of the truth of the facts stated in Tallis's written statement. In the circumstances I have related I am of the opinion that the appellant was at the least entitled to a direction to the jury that it would be dangerous to convict him. I therefore think that the conviction should be quashed and that a retrial on the indictment should not be ordered . (emphasis mine) 31. As can be seen the "representation" in Doolan was put to a different use than the admissions are sought to be put in this case. Secondly, the case is not authority for withdrawing equivocal evidence, but rather curing by direction the impact of weak evidence. Finally, the use made of the equivocal statement by Townley was to base a finding the accused had been entitled to a direction that it would be dangerous to convict him, and then as a factor involved in His Honour's exercise of discretion as to whether or not a new trial should be ordered. 32. Of course, the problem that arose in Doolan might be avoided by the application of s.137 of the Evidence Act. Although no formal application has been made by the defence for me so to do, I have considered whether the probative value outweighs the danger of unfair prejudice. In considering that issue, not only do I turn my mind to the question of the probative value of the various admissions in the Crown case, but also the corroborative value of the admissions that a jury may accept as being made. The crown case is comforted by the support the complainant's evidence receives from the representations made by the accused in the telephone conversation. 33. The unfairness consideration evoked by s.137 relates to the probative value arising from the telephone call measured against the danger of unfair prejudice arising from the evidence created by the telephone call. That is, will the evidence provoke some irrational emotional response, or give the evidence, unfairly, more weight than it deserves. So expressed, I am unable to foresee any danger of unfair prejudice arising from the evidence. That is not to say, I do not undervalue the damage this evidence may have on the defence case – but that is not the test. 34. In all the circumstances I reject the defence argument that there are no admissions contained in the pretext telephone conversation. Do the pretext conversation admissions fail the tests of s.90 and 138? 35. Before analysing whether the pretext admissions fail the tests of s.90 and s138 it is necessary to indicate two finding I have made. Firstly, I am satisfied the conversation between the complainant and accused would not have been made, but for the intervention of Dt Wilcox. The Complainant's view of the accused was that he was reprehensible, and the last thing on earth she wanted was to contact him. She was persuaded to do so because she believed (whether after discussion with Dt Wilcox or not does not need to be determined) that the case against the accused would be strengthened. I suspect this conclusion was obvious once it was explained to her what topics the proposed conversation would cover. 36. Secondly, the structure and content of the call were not mandatitorily imposed upon the complainant. But the structure the call actually took was significantly influenced by suggestions made by Dt Wilcox before the call began. Topics, other than topics suggested by Dt Wilcox were discussed between complainant and accused, particularly on those occasions where she was seeking to avoid future contact with the accused in Forbes. The complainant's conversation was not scripted, nor targeted to elicit specific admissions as may have occurred in a record of interview. What was hoped for, and intended by the suggestions made by Dt Wilcox were admissions to general propositions – such as "what happened on the 17th" as distinct from "did you try to penetrate my anus with your penis when we were on the couch". 37. S. 90 of the Evidence Act provides: 90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit evidence to prove a particular fact, if: a.) the evidence is adduced by the prosecution; and b.) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. 38. Although in the minority, Kirby J in Em v The Queen (2007) 239 ALR 204 at pp 248-249 sets out a very useful analysis of textual features of s.90 relevant to the proper exercise of power for which it provides. While I concede it is sometimes difficult to tell, it does not appear to me either of the judgments dismissing the appeal, call into question this analysis. * First the section is limited in its application to evidence "adduced by the prosecution" in a "criminal proceeding". Thus s.90 is confined in its operation to a particular type of trial which, in Australia, has distinctive features. Most importantly, criminal proceedings in this country normally observe an accusatorial principle by which it is for the prosecution to establish the criminal accusation. The defendant is not usually required by law to say or prove anything. The specific context is thus that of admitting evidence of an admission which, by our law, normally a defendant is not required to make but which is contained in the evidence adduced by the prosecution and proffered against the defendant. Whether, in these circumstances admission of the evidence would be "unfair" needs to be judged taking into account these peculiarities that lie deep in the Australian system of criminal justice. * The "unfairness" that enlivens s.90 is not at large. It is not related to broader considerations such as unfairness to the community, unfairness to investigating police, unfairness to witnesses or to any other person or thing. The sole consideration is unfairness "to a defendant". This focuses the inquiry on the effect of the "circumstances in which the admission was made" on the defendant as such. The impact on a wider range of persons or values must be considered, if at all, under other exclusionary rules provided by the Act, not under s.90. * The unfairness "to [the] defendant" is also not at large. It is not addressed to unfairness to the defendant outside the courtroom. It is only in the criminal proceedings where that person is "a defendant", and the relevant evidence is tendered for admission, that the admission may be excluded because it would be unfair to the defendant to use it in such proceedings. * The criterion for rejection of the evidence is not the way in which it might later be used by the tribunal of fact. That would involve a concern with unfair prejudice to which other sections of the Act are directed, such as s.135 (a general discretion to exclude evidence) or s.137 (a special discretion to exclude prejudicial evidence in criminal proceedings). As noted above, the several provisions for the exclusion of evidence necessarily overlap in some circumstances. They operate alternatively and cumulatively. An accused person is entitled to invoke any and all of the provisions that are alleged to be relevant to the proceedings in hand. In a statute of general application, the existence of differently expressed powers of exclusion that may, in a given case, have more particular application to the circumstances of a trial is not a reason for reading down the alternative grounds for exclusion provided by the Act, including s.90. 39. Kirby J. in the same case also notes that once a court, in circumstances to which s.90 applies, concludes that it "would be unfair to the defendant to use the evidence" the section does not provide the court with an uncontrolled option to allow the evidence or to reject it or to limit its use. If the relevant unfairness to a defendant in the use of the evidence is demonstrated, the only discretion provided is to refuse to admit the evidence of an admission at all, or to refuse to admit the evidence to prove a particular fact. 40. Kirby J's point requires recognition of the differing issues required to be decided by s.137 and s.138. In s.90 the focus is upon a question of whether there is an "unfairness to the defendant" in using the evidence. S.137 requires an evaluation of "the danger of unfair prejudice to the defendant", and s. 138 requires (assuming contravention of an Australian law or an impropriety) an assessment of "the desirability of admitting the evidence outweighing the undesirability of admitting the evidence". The s.90 enquiry is limited to one of determining a question of "unfairness" to the defendant. The s.137 and s.138 enquiries are of broader scope. What constitutes "unfair prejudice" to a defendant and issues relating to "desirability" and "undesirability" of admitting evidence involve among other things policy considerations. 41. In determining the question of unfairness it is as well to keep in mind remarks of Brennan CJ in Swaffield (1998) 192 CLR 169 at [35]. …The investigation of crime is not a game governed by a sportsman's code of fair play. Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity 'to invent plausible falsehoods'. 42. In the same case Kirby J postulated the test of unfairness thus: In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent." (emphasis mine) 43. What seems apparent from this test is that some "derogation" of a suspect's rights may not qualify as being "unfair". While some may have difficulty recognising this concept as a matter of logic reasoning, those more familiar with the law would recognise it as a workable legal principle. "Unfair derogation" is not a tautology in the law. 44. In the context of a pretext conversation the right to exercise a free choice to speak will be unfairly infringed where the civilian caller is acting as an agent of the state and the evidence objected to was elicited. 45. The Canadian authorities regard a civilian caller (referred to as "informer" below) as being the agent of the state: [o]nly if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship, should the informer be considered a state agent for the purposes of the exchange. (emphasis mine) Broyles v The Queen [1991] 3 S.C.R. 595 at [30] per Iacobucci J. 46. In Broyles Iacobucci J dealt at some length on the concept of elicitation. Issues such as "did the state agent actively seek out information such that the exchange could be characterised as akin to an interrogation" (at [38]) or was the conduct and tone of the civilian caller during the conversation as someone in the role the accused believed he/she would ordinarily have done. His Honour said, The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation." Ibid. 47. Also of relevance to the question of elicitation was the nature of the relationship between the civilian caller and the accused. "Did the state agent exploit any special characteristics of the relationship to extract the statement. Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk? In considering whether the statement in question was elicited, evidence of the instructions given to the state agent for the conduct of the conversation may be important. Broyles ante at [39] – [40]. Applying the Legal Principles 44. As noted earlier, had Dt Wilcox not proposed the idea of phone contact with the accused, I am satisfied no phone call would have occurred between complainant and accused. There is clearly a material difference between the absence of a phone call, and any phone call that takes place. 49. My mind has also been occupied with the speculation of what would have occurred had the Complainant been urged by, say her father, or some other person to make the phone call, and done so. In those circumstances it is likely the phone call that actually occurred would not have differed much from the one that did occur. Nonetheless I regard that as going beyond the first test posed by Iacobucci J. In all the circumstances then it is open to regard the Complainant during this call as being an agent of the state. 50. The more difficult question is the one of elucidation. In coming to my view, my last observation, based upon a speculation is of some relevance. While it is true the structure and content of the call was contributed to by Dt Wilcox; the exchange between Complainant and accused could not be characterized as an interrogation such as police would have conducted; her deportment during the conversation would have had the overtones to the accused of someone who felt injured by his prior conduct, but was neither aggressive, offensive or intrusive. She rang assuming the role of a person aggrieved because of past sexual conduct and seeking some explanation for it. Assuming for the purposes of this judgment only that her complaints to police are accurate, the role she adopted during the call was consistent with such a proposition. The accused was at liberty to engage the Complainant on this level, or reject her assertions, or retire from the conversation. There was no badgering, importuning or challenging of him. 51. Was the accused obligated or vulnerable to the Complainant? This is not an easy question to address. Assume for the purpose of the judgment the complainant's allegations were accurate, it may be thought he was vulnerable or felt obliged to her. On the other hand, recognising the status of the plea of "Not Guilty" it cannot be said he was otherwise vulnerable to her. Certainly he professed feelings for her. But that profession of feelings must be understood against the "one night stand" expression of professed feeling for her. 52. Nor can it be said there was any manipulation of the accused by the complainant during the telephone conversation. 53. The instructions given by Dt Wilcox to the complainant were loose, non binding and aspirational. The were also of a minimalist nature – address, workplace and if possible the night in question. Details of the address and workplace were not likely to be self-incriminatory. On those instructions the intrusion of the state into the conversation was itself minimal. 54. Finally I need to consider the application to exclude the pretext conversation by reliance upon s.138 of the Evidence Act. Frankly, that application must be doomed. The conversation was recorded pursuant to the granting of a listening device warrant. Of course the granting of such a warrant does not constitute an imprimatur to the police decision to conduct a pretext conversation – but it does at least guarantee that the actual recording is permissible. Given that my findings on the question of unfairness as required by s.90 were that there was no unfairness, there is no work for s.138 to do. 55. For reasons I have given I reject the application to exclude the pretext conversation of 8th March 2007. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.