Reported Decision: 169 A CRIM R 452 New South Wales Court of Criminal Appeal CITATION: Pavitt v Regina [2007] NSWCCA 88 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 28 April 2006 JUDGMENT DATE: 2 April 2007 JUDGMENT OF: McColl JA at 1; Adams J at 144; Latham J at 1 DECISION: Appeal dismissed. CATCHWORDS: Evidence — Criminal trial — admissions — discretion to exclude — covertly recorded conversation between accused and complainant facilitated by police —whether conversation constituted breach of accused's right to silence — whether conversation was the functional equivalent of an interrogation by an agent of the State - Evidence — discretion to exclude evidence — complaint evidence — whether evidence of previous complaints admissible under s 108(3) Evidence Act to restore complainant's credibility in anticipation of suggestion by defence that complainant's evidence was a fabrication - Criminal Law and Procedure — whether summing up to jury adequate — whether trial judge discharged obligation to ensure a fair trial of the accused — whether verdict unreasonable and inconsistent with evidence Crimes Act 1900 Criminal Appeal Act 1912 LEGISLATION CITED: Criminal Procedure Act 1986 Evidence Act 1995 Listening Devices Act 1984 Canadian Charter of Rights and Freedoms Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 Carr v State of Western Australia [2006] HCATrans 582 Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 EM v The Queen [2007] HCATrans 65 Foster v The Queen [1992] HCA 63; (1993) 67 ALJR 550 MFA v R [2002] HCA 53; (2002) 213 CLR 606 MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348 Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 R v Burt [1998] QCA 423; [2000] 1 Qd R 28 R v Carter [2000] VSCA 6; (2000) 1 VR 175 R v Davidson and Moyle; Ex parte Attorney-General (Q) [1996] 2 Qd R 505 R v Davis [1999] NSWCCA 15 R v DH [2000] NSWCCA 360 R v DWH [1999] NSWCCA 255 R v Heffernan; R v Peters (16 June 1998, unreported, BC9802596) R v Ireland [1970] HCA 21; (1970) 126 CLR 321 R v Jeffries (1947) 47 SR (NSW) 284 CASES CITED: R v M [2002] QCA 486; (2002) 135 A Crim R 324 R v Niass [2005] NSWCCA 120 R v Reardon [2002] NSWCCA 203 R v Selsby [2004] NSWCCA 381 R v Singh-Bal (1997) 92 A Crim R 397 R v Sophear Em [2003] NSWCCA 374 R v Stone (unreported, 13 December 1954) R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159 R v Tillot (1991) 53 A Crim R 46 R v Whitmore [1999] NSWCCA 247 R v Workman [2004] NSWCCA 213; (2004) 60 NSWLR 47 Ridgeway v R [1995] HCA 33; (1995) 184 CLR 19 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 Swaffield v R (1996) 88 A Crim R 98 Truong v R (1996) 86 A Crim R 188 Van der Meer v The Queen (1988) 62 ALJR 656 R v Hebert [1990] 2 SCR 151 R v Broyles [1991] 3 SCR 595 PARTIES: Steven John Pavitt - Appellant The Crown - Respondent FILE NUMBER(S): CCA 62 of 2006 COUNSEL: J S Stratton SC - Appellant P M Miller - Respondent SOLICITORS: Legal Aid Commission - Appellant NSW Director of Public Prosecutions - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/10293 LOWER COURT JUDICIAL OFFICER: Hughes DCJ LOWER COURT DATE OF DECISION: 31 August 2005 IN THE COURT OF CRIMINAL APPEAL CCA 2006/62 DC 03/21/10293 McCOLL JA ADAMS J LATHAM J 2 April 2007 Steven John Pavitt v Regina FACTS Steven John Pavitt appealed against his conviction of four counts of sexual intercourse without consent with a person under the age of sixteen years, one count of buggery and two counts of indecent assault. The Crown's case at trial was, in substance, that over a period commencing in 1983 and concluding in 1987 the appellant had sexually assaulted the complainant, a male, when the complainant was between about 12 and 16 years of age. The appellant was about six years older than the complainant. The complainant first complained to police about the matters in respect of which the appellant stood trial in 2002. After he did so the police obtained a warrant to listen to a telephone call made by the complainant on 3 March 2003 to the appellant. At that time the appellant was a suspect; the police had not decided to charge him. He had not refused to be interviewed by the police. The Crown relied upon the contents of the conversation as constituting admissions by the appellant. A tape of that conversation and a transcript were admitted over objection. The first ground of appeal complained that the trial judge erred in admitting evidence of this conversation. Six witnesses were called who gave evidence that the complainant had complained about the appellant's conduct to them. Three of those witnesses were childhood friends of the complainant's. Each gave evidence of conversations with the complainant contemporaneously with the incidents alleged by the Crown in which the appellant was identified as the person who had engaged in sexually inappropriate conduct with the complainant. Three other witnesses gave evidence of complaints made to them by the complainant when he was an adult about the sexually inappropriate conduct by the appellant he claimed had occurred in his youth. The second ground of appeal complained that the trial judge erred in admitting this evidence. The third ground of appeal complained that the trial judge erred in not including a summary of the evidence concerning the matters at issue in the trial in his summing up. The appellant was acquitted on one count. For that, and other reasons, the appellant complained that the verdicts of guilty were unreasonable and inconsistent with the evidence. Held, dismissing the appeal Per McColl JA and Latham J On admissibility of taped telephone conversation 1. The admissibility of the taped telephone conversation turned on the following propositions: (a) The underlying consideration in the admissibility of covertly recorded conversations is to look at the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned; (b) If that freedom is impugned, the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted; (c) Even if there is no unfairness 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; (d) The question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and/or improper include whether the accused had previously indicated that he/she refused to speak to the police; (e) The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required: (i) as a threshold question, was the evidence obtained by an agent of the state? (ii) was the evidence elicited? (f) A person is a state agent if the exchange between the accused and the informer would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents ; (g) Absent eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police; (h) Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the state agent for the conduct of the conversation may also be important; (i) The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful. R v Swaffield ; Pavic v R [1998] HCA 1; (1998) 192 CLR 159; R v Hebert [1990] 2 SCR 151; R v Broyles [1991] 3 SCR 595 applied R v Carter [2000] VSCA 6; (2000) 1 VR 175; R v Burt [1998] QCA 423; [2000] 1 Qd R 28; R v M [2002] QCA 486; (2002) 135 A Crim R 324; R v Workman [2004] NSWCCA 213; (2004) 60 NSWLR 471; Em v Regina [2006] NSWCCA 336 discussed 2. On the assumption the complainant was a state agent, he did not exploit any special characteristics of his relationship with the appellant. 3. The appellant made the admissions relied upon by the Crown voluntarily, in circumstances that did not cast doubt upon their reliability. The conversation was not the functional equivalent of an interrogation. 4. The appellant could have withdrawn from the conversation at any time. 5. The conversation took place in circumstances which did not lead to the conclusion that its admission or a conviction obtained, at least in part in reliance upon it, was bought at a price which was unacceptable, having regard to contemporary community standards. 6. The taped conversation was properly admitted. Per Adams J (dissenting) 7. The taped conversation ought to have been excluded under either s 90 or s 137 of the Evidence Act because: (a) The complainant was acting as the agent of the police in the curse of the taped conversation and the conversation between the appellant and the complainant was the functional equivalent of an interrogation; (b) The police exploited the special characteristics of the relationship between the complainant and the appellant by virtue of the overwhelmingly emotional character of the allegations, both inherently and by the manner in which they were conveyed, which rendered the appellant far more likely to talk and to make admissions; (c) The admissions were equivocal and ambiguous and did not relate in anything but the vaguest way to the charges. R v Swaffield ; Pavic v R [1998] HCA 1; (1998) 192 CLR 159; R v Hebert [1990] 2 SCR 151; R v Broyles [1991] 3 SCR 595 applied On the admissibility of the complaint evidence Per McColl JA and Latham J (Adams J not deciding) 8. The evidence of complaint was admissible pursuant to s 108(3) of the Evidence Act, in order to restore the complainant's credibility in anticipation of the suggestion (either expressly or by implication) on the part of the defence that the complainant's evidence was a fabrication (whether deliberately or otherwise). On the adequacy of the summing up 9. The trial judge discharged his obligation of ensuring a fair trial of the accused. The summing up was adequate; it focussed on the critical issues at the trial including the complainant's credibility and factors which might have detracted from it. Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620; R v Davis [1999] NSWCCA 15; R v DH [2000] NSWCCA 360 applied On whether the verdicts were unreasonable and inconsistent with the evidence 10. The jury's verdict of acquittal on one count demonstrated a logical approach, not an inconsistent one. MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348 applied 11. The verdict was not unreasonable. MFA v R [2002] HCA 53; (2002) 213 CLR 606; R v Niass [2005] NSWCCA 120 applied. Orders Appeal against conviction dismissed. IN THE COURT OF CRIMINAL APPEAL CCA 2006/62 DC 03/21/10293 McCOLL JA ADAMS J LATHAM J Monday 2 April 2007 Steven John PAVITT v REGINA Judgment 1 McCOLL JA and LATHAM J: The appellant was convicted of four counts of sexual intercourse without consent with a person under the age of sixteen years (s 61D(i), Crimes Act 1900), one count of buggery (s 79, Crimes Act 1900) and two counts of indecent assault (s 61E(i), Crimes Act 1900) after a trial before a jury in the District Court. The trial ran from 16 February 2005 until 11 March 2005. He received a total sentence of five years with a non-parole period of three years. 2 He appeals against his conviction, but in the event that is unsuccessful, does not challenge his sentence. 3 The Crown's case at trial was, in substance, that over a period commencing in 1983 and concluding in 1987 the appellant had sexually assaulted the complainant, a male, in four incidents, respectively described at trial as the "Kiss figurines and model planes in bedroom one" incident, the "pornographic magazine in bedroom two" incident, the "swimming pool" incident and the "dishwasher" incident. 4 The last of the incidents was alleged to have occurred, at the latest, on 31 December 1987. The complainant turned sixteen on 14 September 1987. 5 The victim first complained to police about the matters in respect of which the appellant stood trial in 2002. After he did so the police obtained a warrant to listen to a telephone call made by the complainant on 3 March 2003 to the appellant. A tape of that conversation and a transcript were tendered over objection. The tape and the transcript became exhibit F. The appellant's first ground of appeal is that the trial judge erred in admitting that evidence. 6 The evidence at the trial was extensive. It included evidence from three witnesses who had been friendly with the complainant during his youth and to whom, in substance, the complainant was said to have confided (in broad terms) complaints of several of the incidents the subject of the charges. The complainant's mother gave evidence that when the complainant was in Year 12 he told her he had been sexually abused. A woman with whom the complainant formed a relationship in his early twenties gave evidence that he had told her in around 1993 that he been abused and that when he was about twenty-five, he had told her that the appellant had abused him. The appellant's second ground of appeal is that the trial judge erred in admitting this evidence of prior consistent representations of the complainant. 7 The appellant's third and fourth grounds of appeal are self-explanatory. The third is that the trial judge erred in not including in the summing up a summary of the evidence relevant to the matters at issue at the trial. The fourth is that the jury's verdict was unreasonable and inconsistent with the evidence. 8 The respective cases as summarised by the Crown were: "The victim RA was sexually assaulted on four occasions by the Appellant, who lived nearby in the Padstow Heights area and was the elder brother of one of the victim's school friends. The sexual assaults took place between 1983 and 1987 when the victim was between about 12 and 16 years of age. The Appellant was about six years older than him. The assaults occurred in both the victim's home and the Appellant's home when no one else was there. The allegations of assaults fell into four separate incidents and were summarised by agreement in MFI 2: Incident 1 — in the Appellant's bedroom in 1983 when the victim was about 12. These were Counts 1 to 4 and consisted of: fellatio of the victim by the Appellant; buggery of the victim by the Appellant; or attempted buggery (Count 3 was in the alternative to Count 2); and fellatio of the Appellant by the victim. The Appellant was found guilty of Counts 1, 2 and 4. Incident 2 — in the Appellant's bedroom in 1985. This was a different room in the house by that stage. The victim was about 14. The incident was referred to as the `magazine incident' because the Appellant showed the victim a homosexual pornographic magazine to at the start of the incident. The counts were Counts 5 to 7 and involved the Appellant masturbating the victim's penis; getting the victim to fellate him; and performing fellatio on the victim. The Appellant was found guilty of each count. Incident 3 — It was Count 8 and the Appellant was found not guilty. It was referred to as the 'swimming pool incident' because the Appellant was alleged to have come over to the victim's house to have a swim. The allegation was that the Appellant inserted his finger or fingers in the victim's anus in the victim's bedroom sometime between 1 January 1985 and 31 December 1986 when the victim would have been between 13 and 15. Incident 4 — in the kitchen of victim's house in 1987 when the victim was about 16. This was Count 9 and the Appellant was found guilty. It was referred to as the 'dishwasher incident' because involved the Appellant suddenly entering the kitchen unbeknownst to the victim and grabbing him in the crotch area whilst the victim was holding some plates that he had just taken out of the dishwasher. The victim threw the plates to the floor and the Appellant left the house. The victim's evidence The victim RA gave evidence that he was aged 33 at the time of the trial in 2005 and was born on 14 September 1971. He grew up in Padstow Heights in a house at Villiers Road with his parents (who separated when he was about 10 years old, the father leaving the family) and his two older brothers (T 17.2.05, 1-2). The house had a swimming pool in the back and his mother worked full-time as a social worker. The victim attended Padstow Heights Primary School and Picnic Point High School and became close friends with a girl at school, DP, who was the younger sister of the Appellant. The Pavitt family lived about three houses away around the corner in Roma Avenue and the victim could see their house from parts of their property. DP was about one month younger than the victim. DP had an older sister, WP, whom the victim believed was four years older than her. He believed that the Appellant was several years older again than WP. The Appellant seemed to the victim to be about nine or ten years older than him (T 17.2.05, 3-5) and was described as being more physically mature than him. Incident 1, Counts 1-4: One week day afternoon in 1983 when the victim was in Year 6 and about 12 years of age, he visited the Pavitt's home in Roma Avenue to see DP. The Appellant opened the door and asked him to come inside. The Appellant told him that DP was visiting another friend further up Roma Avenue, but she would be home soon. The victim and the Appellant watched TV in the lounge room for about half an hour. The Appellant went to the toilet and called out for the victim to get him some toilet paper from the laundry. As the victim was about to hand the toilet paper around the louvre door to the Appellant, he was surprised when the Appellant pushed the door open with his foot and the victim could see his penis hanging down and his pubic hair as he sat on the toilet. He went back to the lounge room and the Appellant later came back to the lounge room. There was a conversation about aeroplanes and the Appellant invited the victim to look at his model aeroplanes in his bedroom. Once they were in the bedroom, the victim noticed the Appellant had dolls or figurines of Kiss, a rock group band, on a shelf behind his bed, and a number of model airplanes including 747s (T 17.2.05, 5-11). The Appellant asked him, 'Do you want to play a game?' The Appellant took his pants off and undressed the victim. The victim was very shocked. The victim did not have any pubic hair at this time. The Appellant went down over him and started sucking his penis (Count 1). The victim was sitting on the Appellant's single bed and the Appellant was crouching down, kneeling down with his mouth over the victim's penis. This happened for a few minutes and the victim felt very scared as he didn't understand what was happening (T 17.2.05, 11-14). The Appellant rubbed and felt the victim's anus and anally penetrated him with his fingers which felt very uncomfortable. The Appellant told him to stand up and the Appellant then sat on the bed. The victim saw the Appellant's erect penis and thought it was huge. The Appellant sort of grabbed the victim's body, the victim had his back to the Appellant and pulled him back down onto his penis. The Appellant kept rubbing the victim's anus, with some sort of watery or oily lubricant. Then the victim felt him actually push it inside his rectum and he remembered excruciating pain down his legs and through his body. He felt extremely scared and believed that he was crying at the time. The Appellant pushed harder and harder with his penis (Counts 2 and 3; T 17.2.05, p 14-15). After this finished, the Appellant got the victim to suck on his penis (Count 4). He remembered the Appellant masturbating and then forcing his penis into the victim's mouth when the victim was crouching or may have been sitting on the bed. He remembered the Appellant pulling the victim's head onto his penis and then some sort of fluid in his mouth and on his face (Count 4, T 17.2.05, 17-18). After they got dressed, the victim wanted to leave and he was crying, but the Appellant held him and made him promise repeatedly that he wouldn't tell anyone. The Appellant said surely the victim did this with his brothers at home. The Appellant said he had a problem with girls. The victim asked if he could use the toilet and once he was out of the room, he ran out the back door and up the side of the house through a side gate and ran home. He did not tell anyone what had happened because he was too scared of the Appellant (T 17.2.06, 18-20). Incident 2, Counts 5-7: In 1985, when the victim was in Year 8 and was about 14 years old, he recalled a warm day when he was wearing shorts and he went to visit DP at the Pavitt's house. Her older sister WP opened the door and welcomed him inside. He did not know where the Appellant was at this time. He found out after a short time that DP was not home and he recalled WP walking out the front door. He recalled the Appellant appearing and 'grabbing' and 'dragging' him into his bedroom, which had changed from the room in Incident 1. The Appellant told him that he had something he wanted to show him and he produced from the wardrobe a brown paper bag, which contained a homosexual pornographic magazine. The magazine showed men having oral and anal intercourse. The Appellant said, 'Look at the size of their penises, look how big they are'. The Appellant took off his clothes and pulled down the victim's pants. He fondled the victim's penis (Count 5) and put the victim's hand on his (the Appellant's) penis. The victim said he was scared and he didn't like it and didn't want to do this. The Appellant replied words to the effect of, 'Don't be worried, it's not like as if we're boyfriends'. The fondling continued for about five to ten minutes. The victim had some pubic hair at this stage (T 17.2.05, 22-3). The Appellant sucked the victim's penis and the victim got an erection. The Appellant asked whether the victim wanted to 'fuck his arse' and victim replied, 'No'. The Appellant stood up, the victim was seated at the time, and the Appellant pushed his penis into the victim's face and made the victim give him oral sex. The Appellant had his hands around the victim's head and pulled him down onto his penis. The Appellant's penis was in the victim's mouth for about a minute (Count 6; T 17.2.05, 23-5). The Appellant then went back down on the victim while the victim was on the bed. The Appellant was sucking the victim's penis (Count 7; T 17.2.05, 26) and the victim ejaculated. This was the first time the victim had ejaculated. The Appellant 'got really really angry' because the victim had ejaculated into his mouth. The Appellant opened the door — he did not get dressed first — went out for a time and came back with a bottle of Dettol in his hand. The Appellant said the taste from the victim ejaculating was disgusting. The Appellant opened the bottle of Dettol, took a swig of it and gargled it in front of him, then left the room again. The victim started getting dressed. When the Appellant came back he was still upset and said something like 'why didn't you tell me you were going to do that' and the victim said he didn't know that he was going to do that. The victim then left the house by the front door. The Appellant was still very angry. The victim went up into the National Park that runs along the Georges River and hid in the bushes until it got dark and then went home. He felt grubby, scared, anxious and bewildered and didn't tell anyone what had happened (T 17.2.05, 26-8). The victim did not have any other contact with the Appellant for a time after this incident and the next occasion the victim recalled was when the Appellant came over for the 21st birthday part of the victim's older brother, MA, when the victim was 15 years old. The victim also gave evidence that he never swam in their swimming pool with the Appellant (T 17.2.05, 30). Incident 3, Count 8 (the Appellant was found not guilty): One weekday sometime during 1985 or 1986 when the victim would have been between 13 and 15, the victim heard knocking on the front door. He opened the door and the Appellant walked straight in and said he had come over for a swim. The Appellant was wearing business clothes. The Appellant walked into the victim's bedroom, took off rings and other things he was wearing and put them on a dresser. The victim was watching him from the entrance to his bedroom. The victim said he 'wasn't big enough to sort of like kick him out' and said that the Appellant was 'known to me at the time as the devil' (T 17.2.05, 30). 2 The Appellant finished undressing and then undressed the victim. The Appellant groped at the victim's body and started biting the victim's nipples, which really hurt and the victim told him that it hurt. The Appellant stopped biting him and began fondling his penis and anus and stuck a finger into his anus (Count 8). The victim then said that the Appellant stuck his penis into between the victim's legs and pushed and withdrew it between his legs 'standing up in the family bathroom and then I remember him masturbating really hard and fast and I remember he came,' meaning the Appellant ejaculated, on the victim and on himself. The Appellant had brought a towel and went back into the victim's bedroom to get the towel. He wiped himself and the victim off and swam in the family's swimming pool (T 17.2.05, 32-33). The Pavitts then moved about half a kilometre away in Padstow Heights but the victim still had contact with DP. Incident 4, Count 9: In 1987, at the end of Year 10 when the victim was 16, he was in the kitchen at home unloading dishes from the dishwashing machine for his mother before she got home from work. He thought that he heard a noise at the front door and looked quickly at the door. He was the only person at home at the time. He then took out perhaps four plates at once to put them away in the cupboard. Suddenly a figure came at him and stuck out his arm, grabbing him on the testicles. The victim saw that it was the Appellant. The victim 'threw the plates on the floor and yelled and started bawling my eyes out' and fell to the floor. He heard the Appellant running out of the house. The plates had smashed all over the tiled floor and he had a piece which he started digging into his wrist. He had been expecting two female friends to come over and he heard another knock at the door and it was them. One of the girls consoled him, asking what was wrong. He did not tell her, though, because he did not want to be called a 'homo' or 'poofter' at school because of what the Appellant had been doing (T 17.2.05, 36-8). Further to the reference to 'the devil', in re-examination the victim gave evidence at T 2.3.05 at page 13. Uncharged conduct : On another occasion after the Pavitts had moved house, he remembered an incident that occurred but his memory was not as clear. It occurred in the Appellant's mother's bedroom. The Appellant got some of his mother's moisturiser, which was some sort of pink, floral-smelling moisturiser and rubbed it on the victim's body but it stung (T 17.2.05, 43). The victim gave evidence that he complained about the Appellant to his school friend MP, childhood friends SD and HR, HR's mother Ellen Joy, his mother, his ex fiancé Kylie Saare and a sexual assault counsellor at Bankstown (T 18.2.05, 2). He spoke with SD on many occasions about the Appellant sexually assaulting and 'raping' him (T 18.2.05, 3). He told HR over the telephone that he was scared of the Appellant (T 18.2.05, 4). He told Ellen Joy at her property at Leppington that the Appellant was touching him and doing other things to him and that he was very scared of the Appellant (T 18.2.05, 5). He first spoke to his mother about it when he was in Year 11 and he was 18 years old. She referred him to a counselling service (T 18.2.05, 5-6). He first told Ms Saare when they were both 21 years old in 1994 (T 18.2.05, 5). He had a telephone conversation with the Appellant when he was in Year 11 and asked the Appellant if he was gay and if this was the reason that the Appellant had done these things to him. The Appellant had replied that he was not gay and not to worry about it (T 18.2.05, 6-8). After he finished school, the victim was working for NSW TAFE at the corner of Hay and Castlereagh Street, Sydney, and had seen the Appellant at the main entry to Central Station at Eddy Avenue on the way to work. The Appellant approached him and asked how he was going, but the victim did not say anything, shrugged and kept on walking because, 'I didn't want to know him' (T 18.2.05, 8-9). He had a further telephone conversation with the Appellant when the Appellant was living in England. He rang the Appellant and asked him if he remembered what he used to do to the victim when the victim was a kid and the Appellant responded, 'Yes'. The victim told him he had had a lot of problems as a result of what happened, but the Appellant did not really have much to say (T 18.2.05, 9-10). The victim told him about the nervous breakdown he had had while working as a sales executive for a security company and his fears about his relationship with his fiancé and told the Appellant he wanted to get more professional help. He asked the Appellant to pay for it and the Appellant said that he might be able to help him (T 18.2.05, 12-13). After the victim first contacted the police in 2002, arrangements were made on 3 March 2003 for the victim to telephone the Appellant (who had returned to Australia) and for a tape recording to be made of the conversation (T 18.2.05, 14-15). The tape of the telephone call was admitted as Exhibit F and a transcript of the call was admitted as an aide memoir. At page 5 of the transcript, the victim says, '... I want to speak to you about, like, you know, what you did to me when I was younger, because it, it's, it's going to be part of, like, the healing process for me', and the Appellant responds, 'Yeah. Sure, sure. Well, do you want me to come out and see you?' Then at pages 6-7: V2 [victim]: ... Like, you know what you did to me -- VI [Appellant]: Mmm. V 1: --- like, you know, when I was younger and that, it sort of made me question my sexuality. V l: Yeah. V2: And I had a, like, you know, that's another problem for me. I don't know what I am any more. V l: Yeah. Yeah. V2: And, like, you know, I, I don't know, why did you do it to me when I was a kid, Steven? V1: Well, know you, I, like I said to you, you know, the same thing happened with me and [male first name], you know, we, [he] approached me, and we just mucked around a little bit. I thought well, this is cool, and -- Then at page 9: V2: Do you feel guilty about what you did to me? V l: Yes - you -- At page 10: V2 You, you, but you can help me by telling me why you did it. V l: It was just a little muck around thing -- V2: What - but what, what was I, just a fuckin' toy? Vi: No. V2: Well, why did you do it to me? V l: I don't -- V2: It wasn't, if … I'd never, I was 10 years old, and you did it to me until I was, like, 15. I, I didn't even have a choice. And now I don't even know what I am. V l: [Victim's first name], I just don't have any answers for you, mate. In the Appellant's ERISP conducted later on 3 March 2003 (the edited tape is Exhibit G and the transcript is Exhibit H), the Appellant denied any sexual behaviour towards the victim whatsoever. The interviewing officer referred to the telephone call with the victim earlier that day. The Appellant denied any wrongdoing and said at Q 149 in relation to 'mucking around': What it was along the lines of, just mucking around, that's what all of, you know, he and the brothers, we, when we went swimming sometimes it was just in the nude. You know, it was nothing else more than that, we were just mucking around. So I never did touch him like that. Cross-examination of the victim In cross-examination, the victim RA said he had seen about a dozen mental health care professionals over the years from 1999, some of whom prescribed various drugs for him (T 24.2.05, 5-22). He had heard threatening voices, thought clones were going to kill and replace him and his fiancé and he burnt things in their apartment (T 24.2.05, 27-32). He maintained that the Appellant was a demon (T 24.2.05, 32). Apart from a short time working as a horse trail rider, he had not had any paid employment since 1999 (T 24.2.05, 42). In one of his police statements, he said that he believed at the start of the alleged incidents that the Appellant drove a red Toyota Celica and he conceded in cross-examination that he must be wrong about this (T 24.2.05, 70-2). The first vehicle he associated with the Appellant was the red Toyota Celica (T 25.2.05, 17). The victim admitted that he developed a drug problem from the age of 29 or 30 (T 25.2.05, 30), including heroin and cocaine (T 1.3.05, 6) for a period of about six months or less (T 1.3.05, 10). He ended up spending something like $400 a day on illicit drugs (T 1.3.05, 11) and committed several crimes, such as stealing and robbery, resulting in him being sentenced to imprisonment (T 1.3.05, 63-75). The victim gave conflicting evidence in the current trial and the earlier trial as to whether he was sitting upright on the bed or lying down in the first incident (T 25.2.06, 46-7). It was put to the victim that the alleged sexual assaults never occurred (T 25.2.06, 48). It was pointed out that, despite him supposedly being in fear of the Appellant, he went back on occasions to the Pavitts' house to see DP (T 25.2.06, 61; T 28.2.06, 2). In relation to Count 8, the victim said that the Appellant walked naked from his room into the bathroom (at the victim's house) to get moisturiser while the victim waited alone in the room for a minute, although supposedly he was afraid of the Appellant (T 28.2.05, 11-12). In relation to the uncharged incident at the Appellant's house involving the floral smelling moisturiser, the victim conceded he could not 'really remember' about the incident and 'it's vague to me for some reason' (T 28.2.05, 51-3). He agreed he was 'very vague' about it (T 28.2.05, 55). During the 1999 telephone call to the UK, the victim agreed that he 'may have said something to him [the Appellant] about I could go to the police about the matter' if the Appellant did not put money in his account (T 1.3.05, 30). The Appellant's version of their conversation on the telephone was put to the victim (T 1.3.05, 29-35). The victim admitted that he looked at and read the notes being written out by the Officer in Charge during the recorded 2003 telephone conversation, such as, 'Why did you do it to me?' (T 1.3.05, 48). It was put to him that his brother MA, the Appellant and others skinny-dipped in their pool (T 1.3.05, 58). Other evidence The victim's older brother MA gave evidence that he did not know the Appellant very well at all when he was growing up and he did not recall the Appellant ever swimming with him. He did not recall skinny-dipping in the family pool with his male friends (T 3.3.05, 26). The Officer in Charge, Detective Woodbridge, gave evidence of the taped telephone call with the Appellant, the Appellant's arrest and ERISP interview and also of obtaining RTA records regarding the Appellant's ownership of motor vehicles. The relevance of this evidence was that the victim was mistaken initially as to the colour of the vehicle that the Appellant drove at about the time of the first incident (he thought it was a red vehicle). The Appellant was registered as the owner of a green 1976 Toyota sedan acquired on 22 August 1983 until 12 December 1986 and it was then that he acquired a red 1982 Toyota sedan on 12 December 1986 which he disposed of on 8 November 1989 (Exhibit K). WP's birth certificate showed she was born in 1967 and a child Steven was recorded as being two years old at that time (Exhibit L; T 4.3.05, 15-16). (This made the Appellant approximately six years older than the victim, who was born in 1971.) As will be referred to below, the victim committed various crimes around 2001 and was imprisoned. Psychiatrist Dr Bruce Westmore gave evidence that he attended on the victim when the victim was in Long Bay Correctional Centre in September 2001, for the purpose of preparing a report for the victim's sentencing proceedings (see below for further details of the victim's offending). Dr Westmore took a history from the victim including a note that 'a number of incidents occurred where inappropriate sexual activity was directed towards him between the ages of 11 and 13 by an older male neighbour; no complaints were made' (T 4.3.05, 41). Dr Westmore gave expert evidence regarding a person's belief of an event occurring in the past, before the onset of a psychosis. He said, 'If the belief appeared to be reasonable and something that might have occurred, then that would suggest to me that that belief was not arising from their psychosis' (T 4.3.05, 47). Further, if the person had reported his beliefs to others before the onset of a psychotic episode and that episode had resolved, 'It would suggest that the statements are not related or unlikely to be related to the psychotic episode' (T 4.3.05, 56). There was evidence of complaint from a number of witnesses to whom the complainant reported the sexual conduct of the appellant before the onset of his psychosis. 2. The Appellant's Evidence The Appellant denied that anything of a sexual nature took place between himself and the victim at any time (T 7.3.05, 25, 29-30, 32, 41, 66). He also relied on his good character (T 7.3.05, 45). The Officer in Charge confirmed during her cross-examination that the Appellant had no convictions in Australia or overseas (T 4.3.05, 35). The Appellant gave evidence that he was threatened by the victim to put $3000 in his bank account or he would accuse him of sexual assault (T 7.3.05, 60). The Appellant gave evidence that he was born on 2 December 1964. In 1983 was living in the family house at Roma Avenue, Padstow Heights. He finished school in 1982 and worked for the Associated Newsagents' Coop and for McDonalds in 1983 as well as commencing study with TAFE in a Customs Import and Export course in 1984 (T 7.3.05, 19-20). He began a full-time job with a freight forwarding company, IndoAtlantic, in June 1983, in which he worked 9 am to after 5 pm during the week with about half an hour's travelling time (T 7.3.05, 24). He drove a blue Ford Escort in 1983 and changed to a green Toyota Celica on 22 August 1983 (T 7.3.05, 21). He knew the victim's family, who lived nearby in Villiers Road. He and the neighbourhood kids used to swim in the victim's family pool. This happened when it was particularly hot, and didn't happen that often (T 7.3.05, 22). The Appellant began another full-time job in freight forwarding in December 1984 (T 7.3.05, 25). The victim came over to their house from time to time to visit his younger sister, DP (T 7.3.05, 27). He did not have a recollection of visiting the victim's house apart from going for a swim (T 7.3.05, 27). He moved bedrooms in his house in February 1986 after catching glandular fever (T 7.3.05, 29). The bedroom marked by the victim in his evidence was not the Appellant's room at the time and was occupied by his other sister, WP (T 7.3.05, 30). His mother cleaned the house, including putting the children's clothes away in wardrobes, and the house was very clean. He never had any pornographic homosexual magazines (T 7.3.05, 30). He took up employment with another freight company in 1985, Flyway International, at Botany and this did not involve him going out to see clients or customers (T 7.3.05, 32). Similarly, his next job with Brambles International Freight was all office work and did not involve seeing clients (T 7.3.05, 33). He attended TAFE in the evenings three days a week (T 7.3.05, 33). The TAFE course continued in 1986 (T 7.3.05, 37). He changed cars again on 12 December 1986 to the red 1982 Toyota Celica (T 7.3.05, 34-5). He denied swimming in the victim's pool in 1985 or 1986, because he had a girlfriend at that time and he went to the beach with her. He would not have swum in the victim's pool (T 7.3.05, 37-8). MA was wrong when he denied that he and the Appellant were mates when they were growing up (T 7.3.05, 38). He and the neighbourhood kids, including MA, 'did some skinny dipping when we were younger'. This was when the Appellant was only about 13 years old, years before the allegations (T 7.3.05, 38). He moved with his family to their new property nearby in Bernard Road after the Roma Avenue house was sold in September 1988 (T 7.3.05, 42). In his next job with Unit Load he had a company vehicle but he never visited the victim's house (T 7.3.05, 42). He relocated to Melbourne with work in March 1990 (T 7.3.05, 43). He worked in Melbourne in different jobs until 1997 when he moved to the UK with Qantas (T 7.3.05, 44) and he did not maintain any contact with the victim's family during that time (T 7.3.05, 45). He remained working in the UK until July 2000. Whilst he was in the UK, he received two telephone calls from a person identifying himself as the victim. The first call was on 23 September 1999 and the second on 27 September 1999. He was able to state the dates because he had found one of his diaries (T 7.3.05, 57). He was under a lot of pressure during the ERISP when he said that he had not received any calls from the victim and he also noted that he said in ERISP that the Olympics were in 2002 instead of 2000 (T 7.3.05, 58). During one of these calls in the UK, he wrote down on a piece of paper the drugs that the victim told him he was taking: heroin, Epilim, Mogodon and Zonax. He later put this piece of paper in his diary. He noted down during the call that the victim asked him for $3000 and made a note of the Commonwealth Bank, but not an identifying bank number (T 7.3.05, 58-9). The victim told him that he was in a bad situation with drugs (T 7.3.05, 59). The victim said, 'Put $3000 in my account otherwise I'll accuse you of sexual assault' (T 7.3.05, 60). The Appellant replied, 'That's false allegations [first name of victim]. I cannot assist you and don't bother to call me again' (T 7.3.05, 60). In the second call, the victim said, '[Y]ou haven't paid the money into my account yet,' and the Appellant replied, '[T]here is nothing to pay into your account, there is nothing I can do for you, I did not do these things, please don't call me again' and hung up (T 7.3.05, 61). The victim was 'very threatening' on the telephone (T 7.3.05, 61). The Appellant's next contact with the victim was the recorded telephone call on 3 March 2003. The Appellant had returned to Sydney to care for his ailing father in 2000 (T 7.3.05, 61-2). During the 2003 telephone call the Appellant thought the victim was hysterical and thought he had problems because he said he was psychotic (T 7.3.05, 64). The Appellant's reference in the call, and in the ERISP, to 'mucking around' was to 'skinny dipping in the pool when we were younger' (T 7.3.05, 64). He was never told during the ERISP by the police that the call earlier that day had been recorded; he just thought that the police had been listening in to the call from the questions he was asked (T 7.3.05, 65). The Appellant stressed in his ERISP that he had never sexually assaulted the victim and that the victim had seemed upset during the recorded telephone conversation earlier that day. Cross-examination of the Appellant The Appellant gave evidence and was cross-examined on when he first looked at a diary he said he kept in the UK in 1999, regarding the notes he made of the drugs that the victim told him he was using in one of the calls to the UK in 1999. The Appellant said he could not recall whether the notes he made were in the diary itself or on a piece of paper in the diary (T 7.3.05, 70-3). The diary was produced as Exhibit 9. The Appellant was then cross-examined about when he put the notes in the diary. He was cross-examined about his response during the recorded telephone conversation in March 2003 when the victim told him he was a heroin addict. The Appellant replied with apparent surprise, 'Okay, shit' to hearing that the victim was a heroin addict. This was inconsistent, on the Crown case, with the Appellant's earlier conversation in 1999 when supposedly the victim told him he was in a 'bad situation' using heroin (T 7.3.05, 77). It should not have been a surprise in 2003 to hear that the victim used heroin if in fact (as the Appellant said had occurred) the victim told him that in the earlier telephone conversation in 1999. Similarly, the Appellant's greeting and pleasantries at the start of the 2003 conversation was inconsistent with his version of the attempted extortion by the victim on the telephone in 1999 and the Appellant supposedly hanging up the phone on the victim in the second telephone call in 1999 (T 7.3.05, 77-8). With respect to the Appellant's explanation of the 'little muck around thing', the Appellant added in cross-examination, 'It was flashing and then skinny dipping in the pool. There was no sexual contact at all' (T 7.3.05, 85). The Appellant agreed in cross-examination that he had spent time living in each of the three children's bedrooms in his family's house (T 8.3.05, 10). Other evidence in appellant's case The Appellant's mother Anne Pavitt gave evidence that she had never seen any homosexual pornographic material in the Appellant's room or anywhere else in the house when he was growing up (T 8.3.05, 51). The victim had telephoned her in 1999 and asked her for the Appellant's contact number overseas (T 8.3.05, 53). The Appellant's sister Donna McGuire gave evidence that she saw the victim about once or twice a week outside school hours when they were at school together (T 8.3.05, 69). He had never said anything to her about her brother (T 8.3.05, 72). She rang the victim in 1999 after her mother mentioned the victim's call to her, and the victim also asked her for the Appellant's number but she was on the mobile in the car and didn't have it with her (T 8.3.05, 78)." Ground 1: that the trial judge erred in admitting into evidence exhibit F, the tape recording of the telephone conversation between the appellant and the complainant. 9 The appellant complains that the trial judge ought not to have admitted exhibit F as the parts of the taped telephone call upon which the Crown most strongly relied were passages which appeared to have been prompted by the police. 10 Before the Crown opened to the Jury, counsel for the appellant, Mr Rickard, objected to the admission of the conversation recorded on exhibit F on the basis that it had been obtained improperly, being a functional interrogation of the appellant and, in addition, being an interrogation which took place without the appellant having been cautioned. He submitted it ought to be excluded by virtue of ss 86 and 90 of the Evidence Act 1995. The Crown argued that it was admissible as being a "pretext telephone conversation" of the sort conducted in Queensland and referred to R v Workman [2004] NSWCCA 213; (2004) 60 NSWLR 471. It contended that the trial judge could exercise his discretion pursuant to s 138 of the Evidence Act to admit the conversation even if he thought the circumstances in which it took place were unfair (s 90) or otherwise improper (s 138). 11 The trial judge ruled exhibit F was admissible. His reasons were short. He said: "I am of the opinion that the evidence is admissible. I have considered the submissions made by both parties. I am satisfied that ss 85 or 86 are not applicable in this case. I am satisfied that I have then to turn to the other sections about the admissibility of evidence, namely s 90 and s 137 and s 138 which gave the general rubric whether or not the evidence – its probative value is outweighed by its prejudicial value. The indictment contains as Mr Rickard has pointed out, contains, as indeed by law it has to, specific crimes that are not canvassed on the whole by the taped conversation nor its transcription, however there is sufficient and indeed corroborative, as the Crown said, will act as corroborative evidence to other evidence, and in fact on count 5 of the indictment and at a time did commit an act of decency upon him, I think there is sufficient in that to be characterised the jury – there is sufficient in the tape and the transcription of the tape, there is sufficient in that for a jury to draw a conclusion that it was an admission. I do not have to canvass how the jury is going to find that fact, whether or not the words, 'and we just mucked around a little bit' is an admission. In my opinion that is a matter for the jury. In those circumstances I will allow the evidence of the oral or audio tape and the transcription of it." 12 After his Honour had so ruled Mr Rickard asked that only the transcript, rather than the tape be before the jury. He contended that the tape was unnecessarily emotive. The Crown offered to edit the tape so that that part which commenced with the appellant saying "just calm yourself down" (p11) to the end would be removed. 13 When the trial judge indicated he intended to allow the tape to be played as the best evidence, Mr Rickard asked that the whole of the tape be played to the jury, a request to which the trial judge acceded. 14 The complainant gave brief evidence in chief about the telephone call with the appellant. He was asked about it in cross-examination. He said he became aware the conversation was to take place a few days before it took place. He was asked by the police to think of what he might want to say to the appellant "when and if I did get hold of him". Before he went to Bankstown Police Station to participate in the conversation he jotted down a few lines on a piece of paper of the topics or questions he thought he might like to speak to the appellant about. He took that piece of paper with him to the police station. He did not think he showed it to the police before the conversation started. He said that before the conversation the police did not suggest anything he should ask the appellant. 15 Detective Woodbridge was present in the room with the complainant throughout the telephone conversation with the appellant. He said that once the telephone call commenced Detective Woodbridge wrote down notes and placed them in front of him, like "why did you do it to me?" He said she also wrote something of the sort "as to why Pavitt raped you". He was not sure whether she introduced the word "rape" before it was said in the conversation. He said during the conversation he was asking the appellant "like why did he rape me". 16 He said that in the few days before the telephone conversation he had considered that the call was a means by which he hoped the appellant would discuss the allegations he was making against him. He also understood the police were conducting the taped conversation to gather evidence to assist them in prosecuting the appellant. 17 He said that he also made notes during the course of the telephone conversation. He said Detective Woodbridge kept the pieces of paper he took to the police station and the notes they each made during the telephone conversation. He was cross-examined about evidence he had given in February 2004 concerning the taped conversation in which he had said he had not started to prepare questions or topics of conversation prior to the taped conversation. He agreed that evidence was inconsistent with the evidence he had given that day. He explained the inconsistency by saying he had forgotten he had "just dropped down [sic] a few lines on just a single piece of pad paper". 18 Detective Woodbridge gave evidence that she had obtained a warrant to listen to the telephone call made by the complainant, that the telephone conversation was recorded and that she had subsequently created a transcript of the calls. The taped call became exhibit F. Mr Rickard formally objected to its admission recognising he was bound by the trial judge's earlier ruling. The transcript was also tendered although it is not clear it ultimately became an exhibit. It appears, however, that a copy was given to the jury, as an aide-memoire. (3/3/05 p36.) 19 Detective Woodbridge gave the following evidence in cross-examination: "Q. And during the course of that conversation, you wrote out in your handwriting in note form of some type prompts and questions for [the complainant] to ask didn't you? A. Yes Q. And you placed them in front of [the complainant] while he was talking to Steven Pavitt? A. They were in between both of us. Q. Yes? A. We were facing each other and they were in the middle. Q. But you placed them in such a way that [the complainant] could read them while he was still talking to the -- A. He could have, yes. Q. And what you were doing weren't you was formulating some questions that you wished [the complainant] to ask Steven Pavitt? A. No. Q. Well there would be no reason for you to write anything on a piece of paper unless you wanted to discuss some questions, surely? A. Prior to the phone call we had written down prompts and words just to keep the conversation flowing so that it didn't stop or there were long pauses, just if [the complainant] got stuck, they were just things that he could say to keep the conversation flowing. [At this stage Detective Woodbridge identified two pieces of paper in her writing, one of which was written before the taped telephone conversation (exhibit 4) and one written during the conversation (exhibit 5); she returned some pages which were not in her writing – 4/3/05, p24]. …. [Referring to exhibit 4] Q. And were these preparatory questions that you discussed with [the complainant] before the taped telephone conversation commenced. A. Yes and his mother Gloria. …… HIS HONOUR; She came into the station? A. Yes. We were in the meal room at the old police station. RICKARD. And in fairness to you [Gloria] wasn't in the room when the telephone conversation occurred? A. No. Q. I'm keeping aside the one that you've identified with the asterisks prepared before the taped conversation and returning the two groups, sorry officer, going backwards and forwards, so that you can here familiarise yourself generally with the contents of those two documents and when you've looked at those two sets of documents, does that assist your memory in saying whether any question that is written on there was a question prepared by you during the course of the taped telephone conversation? A. Some of the things don't even make sense. They're not even full sentences. Q. That's what I mean, it's – what I'm asking is that them not being full sentences which suggest that they were written down or – the contents of those documents were written down while the conversation was occurring between the complainant and Steven Pavitt, wouldn't it because of the pace of that conversation you were unable to write down fully and completely everything that you might wish to say? A. I can't even remember if I was taking notes or if they were questions. Q. So you can't exclude can you, definitely, that while the taped telephone conversation was occurring, you were formulating questions for [the complainant] to ask Steven Pavitt? A. There are some questions here yes. Q. You can't exclude that because of the way the taped telephone conversation was proceeding, that you wished certain questions to be asked of Steven Pavitt by [the complainant] -- A. No. Q. -- so you wrote them down can you? A. No. Q. You can't exclude that. That in itself because you may have been writing these questions down, was, in fact you getting someone else to ask your questions, wasn't it? A. No. Q. It would be if you can't exclude it? A. I couldn't have asked him to ask half a questions, I didn't even – some of the things say, 'I'll call you if'. I wouldn't get him to ask that. Q. No, but some of them could have been written by you as prompts to [the complainant] during the taped conversation so that he would ask Steven Pavitt certain questions, that's so, isn't it? A. They could have been written for that, yes. Q. In that circumstances, that meant that you would be using [the complainant] to ask your questions of Steven Pavitt wouldn't you? A. I didn't ask him to ask questions or make him ask the questions. Q. No, but you knew that [the complainant] was here on the telephone beside you talking to Steven Pavitt at his home telephone number and you wished to get certain information. [The complainant] wasn't getting that information so you were prompting some questions weren't you? A. Yeah, he did have prompts, yes. Q. So that you were using the prompts as a means of questioning the accused, Steven Pavitt, having someone else question him on your behalf weren't you? A. The prompts weren't all questions, they were statements as well. Q. Where they were questions, they were questions formulated by you weren't they? A. Apart from the document that you have in front of you that was made by [the complainant] and Gloria and myself, if they weren't me taking notes then they were my questions. ** Q. You knew already on 3 March 2003 because [the complainant] had made a statement for the police back in September 2002 which included accusations against Steven Pavitt, that Steven Pavitt clearly was the suspected person? A. Yes. Q. So you were using this taped conversation to get answers from a suspected person where you were prompting questions weren't you? A. I used it to get further evidence." ** It is not clear to what document Detective Woodbridge was referring at this stage. It would appear to be the document the complainant wrote before the call and left with the Police; there is no evidence the complainant's mother wrote anything before the call. The document written by the complainant was not tendered. 20 The trial judge explained exhibit 4 to the jury as "the preparatory documents made by [the complainant's mother and the complainant]. Neither counsel corrected him, but, with respect, his Honour appears to have misunderstood the evidence. Detective Woodbridge had identified the document with asterisks on it as being in her handwriting. Exhibit 4 read: "* What are you thinking about? * Do you know how this makes me feel? * Why me? * Do you know what it feels like * Did it ever happen to you? Trying to find answers " (emphasis in original) 21 When exhibits 4 and 5 were tendered, the trial judge noted for the record that some of the pages were written on both sides. That must have been a reference to exhibit 5; exhibit 4 is only one page. Exhibit 5 comprised four sheets of paper. They were not paginated. A comparison of exhibit 4 with the transcript of exhibit F indicates that only the last prompt was used. A comparison of exhibit 5 with the transcript of exhibit F reveals parts of the former appear in the latter. We have italicised those parts of exhibit 5 which appear in the transcript, as well as indicating the page of the transcript on which they appear and, where they do not appear in the same terms as in exhibit 5, set out the transcript in bold. In the order in which the pages of exhibit 5 were included in the appeal papers, it read (adding page numbers to indicate on which sheet the writing appeared): [V1 = the appellant; V2 = the complainant] (page 1 ) "I wi don't want you to call me (page 10, ex F) I'll call you if You can help by telling me why? (page 10, ex F) can you see what you've done to me (page 2) Mark Wall Police officer – Rodney 21 Drunk + cri?? at Rodney's house – K/Cro Been to see psych. that's why I'm calling (page 2, Ex F: "V2…and I've been seeing counsellors and psychiatrists. V1 Yeah. V2 And that, you know, and, that's why I'm just calling now") ---------------------------------------------------------- - I want to speak to you about what happened when I was 10 - What you did to me (page 6, ex F) - I want to know why you did it want to speak about what we did when I was younger - It's part of my healing process (page 5, ex F "V2: Yeah. And, that, like I want to speak to you about, like, you know, what you did to me when I was younger, because it, it's, it's going to be part of, like, the healing process for me.") not ready for that can we speak about it now. (page 3) I want to talk about it now That's why I called you I'm ready to talk (page 11, ex F I want to talk to you about it now. That's why I called you. Just, like, I, I'm ready to talk to you now….") I wasn't gay. I was a kid CALM DOWN (this appears to be a note of what the appellant said). (page 4) what happened made me question my sexuality (Page 6- 7, ex F V2:Yeah, like, you know what you did to me --- V1: Mmm V2: Like, you know, when I was younger and that, it sort of made me question my sexuality.") -------------------------- Why did you do it? I was a kid (Page 7, ex F V2: And, like, you know, I, I don't know, why did you do it to me when I was a kid Steven?") Talk to me !! You raped me ! (page 7, ex F contains this phrase in two places; we set out the context: V2: I felt like you raped me. V1: What's --- V2: Steven, are you even listening to me? V1: Yeah. Are you all right? V2: No, I'm not all right. I just don't know why, like, you raped me. Why me? Why me, Steven? Talk to me. V1: I don't know [name of V2], it just --- It also appears on page 9 in the following context: V2: You don't, I just don't know. I was just a kid when you raped me, Steven. And, and I just want to know why you chose me. Was it because I was the closest boy to you and, and, like, I was so close to your family and Donna? Or did you hate me? V1: No, I didn't hate you, no.") Why me? Did you enjoy it *I need to know now I have to deal with it (page 8, ex F: I need to know. I, I have to deal with it at some stage.") 22 Mr Stratton who appeared for the appellant on appeal, but not at trial, argues that the tape recording ought to have been rejected in accordance with R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159. He submits that the complainant was being "used as a puppet by the puppeteer", that is that he was the agent of the police. The police took advantage of the relationship between the appellant and the complainant, in circumstances where the complainant had previously tried to blackmail him. Next he contended that the police "scripted" what the complainant said during the critical parts of the exhibit F conversation with the consequence that it was the functional equivalent of an interrogation, designed to elicit admissions. He argues that had the police not taken advantage of the subterfuge of using the complainant to elicit material which could arguably amount to admissions, the appellant would not have responded in the same way. He relied, in the latter respect, on the fact that when police formally interviewed the appellant later on the same day, he denied all the offences. He did not suggest that any part of the conversation was unreliable. Indeed he conceded that the conversation had some probative value. 23 The Crown points out that the principal complaint about exhibit F at the trial seemed to have been, as it was in Swaffield, that the appellant's right to silence had been impugned. However, it argues, the appellant had not been arrested and the case was still in the investigatory stage. While the police had a statement from the complainant, the offences were between 16 to 20 years old and the complainant's evidence had no independent support. The appellant had not been questioned and had not declined to answer any questions. 24 The Crown argued that it was appropriate for police to obtain further evidence. In response to the appellant's argument by reference to his ERISP, that he would not have responded in the same way had he known he was being taped, the Crown submitted that it was a matter for the jury, if it formed a view that the conversation contained admissions at least of a general nature as to sexual misconduct between the complainant and himself, to conclude that he was lying when he denied any sexual misconduct during his interview with the police. The Crown argued it could not be unfair to demonstrate that when he did not know he was being recorded the appellant would say one thing, but would say another when he knew his answers were being recorded. 25 While the Crown accepted that the question whether the police assisted in suggesting some things the complainant might say may have been relevant to the question of whether the complainant was acting as an agent of the police, it contended it was not unfair. The complainant had not said anything to the appellant which was misleading or deceptive. The Crown submitted that while the complainant had told the appellant he wanted to know why he had done certain things to him, it was never put to the complainant that that was untrue. It argued that there was nothing in the relationship between the two men which had made the appellant in any way vulnerable or disadvantaged in the course of the conversation. Rather, the Crown pointed out, the appellant had remained calm and in apparent control throughout the conversation. There was no reason why he could not end it and indeed he ultimately did bring it to an end: see R v M [2002] QCA 486; (2002) 135 A Crim R 324. 26 The Crown also submitted that the appellant had not demonstrated any relevant omission or false statement in the making of the taped conversation. It submitted that even if the trial judge had found the evidence had been obtained improperly, it would have been open to his Honour to have admitted it pursuant to subs 138(3) of the Evidence Act. It argued that the probative value of the evidence was significant and it was of importance in the proceedings because it supported the evidence of the complainant. Ground 1: consideration 27 Disposition of ground one turns on whether exhibit F ought to have been excluded. As this case was argued, that question turns on whether it ought to have been excluded by the operation of either s 90 or s 138 of the Evidence Act. 28 Section 90 provides: "In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the 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." 29 Section 138 provides: " 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 30 It is appropriate to give the Swaffield line of authority close consideration as that case, to some extent, assimilated the common law principles concerning the admissibility of admissions to the Evidence Act: R v Heffernan; R v Peters, NSWCCA, (per Smart J, James and Sperling JJ agreeing, 16 June 1998, unreported, BC9802596). It is necessary, however, not to lose sight of the fact that, in the final analysis, the admissibility issue turns on the terms of the two sections, both of which express the relevant discretion in the widest terms: Swaffield (at [67], [68]) per Toohey, Gaudron and Gummow JJ. 31 Swaffield was convicted in the District Court of Queensland in December 1995 in relation to three offences, one of which was of wilfully and unlawfully setting fire to the Leichhardt Rowing Club. He had been charged with the offences on 7 September 1993 and had declined to be formally interviewed by the police. In early 1994 police began an undercover operation aimed at the detection of drug suppliers in the areas of Yeppoon and Rockhampton in Queensland. Swaffield was one of the operation's targets. An undercover officer in the drug detection operation held a conversation with Swaffield, during which the former pretended that his brother-in-law "down the coast" was in trouble for burning a car. In conversations between the two men Swaffield made admissions of his involvement in the fire at the Rowing Club, as a consequence of which fresh charges were laid against him. The trial judge refused to exclude evidence of the conversation with the undercover officer, a decision upheld by the Queensland Court of Appeal: see Swaffield at [39] – [44]. 32 Pavic was a suspect in a murder case. The police took him into custody and conducted an interview with him in accordance with Pt 3 Div 1 Subdiv 30A of the Crimes Act 1958 (Vict). During that interview Pavic maintained his right not to answer any questions. At the end of the interview the police officers concerned told Pavic that they believed he had committed the offence of murder. However they did not charge him and he was released from custody. Subsequently police officers took a statement from Clancy, a close friend of Pavic. At the conclusion of the interview the investigating police officers believed they had enough evidence to charge Pavic with the murder. However, they suggested to Clancy that he speak with Pavic on their behalf and that, for the purpose, he carry a recording device. Clancy agreed to the proposal and spoke to Pavic who made admissions of his involvement in the killing. The trial judge refused to exclude the evidence of the conversation with Clancy, a decision which was upheld by the Victorian Court of Appeal: see Swaffield at [45] – [48]. 33 Toohey, Gaudron and Gummow JJ delivered a joint judgment. They discerned from High Court decisions four bases for the rejection of a statement by an accused: whether the confessional statement was voluntary and, if it was, whether as a matter of discretion it would be unfair to the accused to admit the statement (the "unfairness discretion"), whether it should be excluded on considerations of public policy (the "policy discretion") and whether its prejudicial impact was greater than its probative value (the "unduly prejudicial discretion"): Swaffield (at [50]–[52]). Brennan CJ and Kirby J in their separate judgments also substantially recognised the same discretions. 34 All members of the court recognised that considerations of voluntariness, reliability, unfairness to the accused and public policy may overlap. Thus, notwithstanding the fact that an admission is found to have been made voluntarily, it may be excluded from evidence because of issues relating to its reliability, the unfairness or policy discretion: see Swaffield (at [74] per Toohey, Gaudron and Gummow JJ; also (at [26] ff) per Brennan CJ; (at [128]) per Kirby J.) 35 Toohey, Gaudron and Gummow JJ held (at [69] – [70]) that, subject to one qualification, the approach to be adopted when questions arise as to the admission or rejection of confessional material, turns first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards. The qualification was that the decided cases also revealed that one aspect of the unfairness discretion is to protect against forensic disadvantages which might be occasioned by the admission of confessional statements improperly obtained. In their Honours' view, support for the adoption of such an approach was found in an analysis of recent cases, together with an understanding of the purposes served by the fairness and policy discretions and the rationale for the inadmissibility of non-voluntary confessions. 36 Toohey, Gaudron and Gummow JJ considered (at [80] ff) the issue of secretly recorded conversations. They referred (at [80]–[82]) with apparent approval to two dissenting judgments of Fitzgerald P in the Queensland Court of Appeal concerning secretly recorded conversations. In each case the conversations took place before the accused had been charged, or cautioned. The conversations were with friends of the accused. Toohey, Gaudron and Gummow JJ noted (at [81]) that in the first case Fitzgerald P emphasised the unfairness of the accused losing her privilege against self-incrimination through trickery. In the second quote their Honours extracted (at [82]) Fitzgerald P said that "the nature of the offence is immaterial to the unfairness discretion": R v Davidson and Moyle; Ex parte Attorney-General (Q) [1996] 2 QD R 505 at 507. 37 Their Honours also considered (at [83]) Canadian authorities were instructive in the discretionary area of exclusion relating to covertly recorded conversations, recognising the necessity to bear in mind the existence of the Canadian Charter of Rights and Freedoms and to identify the extent to which any authority turned on its language. 38 In R v Hebert [1990] 2 SCR 151, after the accused had indicated he did not want to make a statement to the police, he was placed in a cell with an undercover police officer to whom he made statements implicating himself in the robbery with which he had been charged. The Supreme Court of Canada unanimously held that the statements should have been excluded. Toohey, Gaudron and Gummow JJ referred (at [85] – [86]) with approval to the judgment of McLachlin J (with whom Dickson CJ, Lamer, La Forest, L'Heureux-Dubé, Gonthier and Cory JJ agreed). In short, her Honour held that: "The common law rules related to the right to silence suggest that the scope of the right in the pre-trial detention period must be based on the fundamental concept of the suspect's right to choose whether to speak to the authorities or remain silent." and "When the police use subterfuge to interrogate an accused after he has advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect's constitutional right to silence: the suspect's rights are breached because he has been deprived of his choice. However, in the absence of eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police ." (emphasis added) 39 Toohey, Gaudron and Gummow JJ next referred (at [87] ff) to R v Broyles [1991] 3 SCR 595 where the Supreme Court of Canada (La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ) held that evidence of a conversation in which a friend wearing a recording device questioned the accused about the killing of the deceased should be excluded because it was obtained in violation of s 7 of the Charter. The conversation took place after the accused was arrested and cautioned. The friend visited the accused in prison at the request of the police and questioned him about the killing of the deceased. In the Court's opinion, the friend was an agent of the State. The meeting was set up and facilitated by the police and without their intervention there would have been no conversation. Further, the friend had elicited the accused's statement "because parts of the conversation were in the nature of an interrogation, not just parts of a conversation which flowed naturally". 40 After referring to Broyles, Toohey, Gaudron and Gummow JJ observed (at [89]) that in contrast to the "informed choice spoken of in Canadian cases", Australian decisions dealing with voluntariness "tended to approach the matter in terms of an immunity from compulsion", an emphasis they thought was "well placed when voluntariness is in issue, but too narrow when the exercise of discretion is involved." They said: "[91] …, the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks 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 ." (emphasis added). 41 Kirby J (at [130] – [131]) also accepted that s 90 reflects the common law unfairness discretion, one he regarded as "broad enough to adapt to changing circumstances as well as evolving community values". His Honour (at [153] – [155]) approved of a test of admissibility of covertly recorded conversations with the accused which included determining whether the conduct of the police and/or the other party to the conversation causally led to the making of the inculpatory statements. His Honour noted (at [153]) that Canadian authorities did not draw an "automatic distinction between confessions to an undercover police officer and those to a friend or acquaintance." He referred to the concept of elicitation articulated in Hebert, then cited the passage from Broyles (at 611) upon which the appellant relies in which the Court said that admissibility turned on "whether the relevant parts of the conversation were the functional equivalent of an interrogation" and, too, required consideration of the "the nature of the relationship between the state agent and the accused". He then said (footnotes omitted): "[155] I agree in the approach expressed by the Supreme Court of Canada. I do not consider that it is derived from the Charter so as to make it inapplicable to analogous circumstances in Australia. The test propounded is consistent with the general approach which our law has taken towards deception by law enforcement officials. Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest. There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority. Such facilities must be employed by any modern police service. The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. 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. Or it will be crossed where police have exploited any special characteristics of the relationship between the suspect and their agent so as to extract a statement which would not otherwise have been made ." (emphasis added) 42 In the case of Swaffield, Toohey, Gaudron and Gummow JJ held that the secretly recorded admissions he made (having earlier declined to answer questions during a formal police interview) to an undercover police officer were properly excluded. Nothing the undercover police officer did in relation to his conversation with Swaffield was illegal. However, their Honours considered there was the broader question of whether what he did was in violation of Swaffield's right to choose whether or not to speak to the police. There was also the question whether there had been a breach of the Judges' Rules, r 2 of which requires a police officer who has made up his mind to charge a person with any crime to caution that person before asking any questions. Their Honours concluded that the police officer had made up his mind to charge Swaffield, he having been charged well before the conversation with the undercover police officer, a charge which had not proceeded. The police officer did not caution Swaffield before the conversation. That fact alone did not dictate exclusion of the conversation. Rather, the appropriate test should be applied "by reference to Swaffield's right to choose whether or not to speak to the police". Their Honours referred to R v Hebert and concluded that the Canadian Supreme Court "regards the use of a subterfuge to obtain a statement as likely to be in violation of a choice whether or not to speak but even then would treat a quite unelicited admission as not calling for the exercise of the discretion to exclude". In their Honours' view, Swaffield's admissions were elicited by an undercover police officer, in clear breach of his right to choose whether or not to speak, and were inadmissible: see Swaffield at [93] – [98]. 43 The nature of the Swaffield conversations can be seen from Swaffield v R (1996) 88 A Crim R 98 at 108 – 109. Kirby J (at [165]) concluded from the transcripts of the conversations that the undercover police officer: "… did not speak to the accused as an acquaintance might have done, neutrally or indifferently. Instead, by his questions, he actively sought to elicit critical information -- such that the exchange is properly to be characterised as akin to a police interrogation. Such an interrogation by an undercover police officer unfairly derogated from Mr Swaffield's free choice to speak or be silent." 44 Brennan CJ concluded (at [34]) that there was much to be said both for the view the Swaffield conversations ought to have been excluded because they infringed the public interest in ensuring that the police did not adopt tactics designed to avoid the limitations on their inquisitorial functions that the courts regard as appropriate in a free society and the view that there was a public interest in having Swaffield's admissions available to the Court on his trial for arson. He concluded that when the question touched the standards and methods of police investigation in a particular case, it was undesirable for the High Court to intervene except in cases where the decision of the Court below had proceeded on an erroneous principle or was otherwise manifestly wrong. He concluded that that condition was not satisfied in Swaffield's case. 45 Pavic's inculpatory statements were made after his friend, Clancy, suggested he himself was under suspicion and might be charged with murdering the deceased. The terms of the conversation can be seen from Kirby J's judgment (at [158]) and from R v Pavic (Supreme Court of Victoria, Court of Appeal, unreported, 19 December 1996). The majority (Kirby J dissenting) held that a tape recording of admissions made by Pavic in the conversation with Clancy, which Clancy taped on behalf of the police after Pavic had refused to attend a police interview, was properly admitted. Toohey, Gaudron and Gummow JJ concluded (at [100]) that Clancy was an agent of the state as he spoke with Pavic at the request of the police who equipped him with a recording device, but (at [101] – [102]) that the admissions were not elicited by Clancy's misleading statement that he feared he would be charged with murder. Brennan CJ said (footnotes omitted): "[35] In Pavic's case, the confessional statements were made to Clancy whom Pavic knew as a friend. Clancy was not a police officer or other person in authority over Pavic. There was no impropriety in the police obtaining Clancy's consent to the recording by Clancy of his intended conversation with Pavic. A serious crime had been committed and the means adopted for its solution and for the securing of evidence against the prime suspect were quite legitimate. 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'. [36] The fact that Clancy was regarded as trustworthy by Pavic is an indicator of the reliability of the admissions made to Clancy. There was no public interest to be served by rejecting those admissions." 46 Notwithstanding the fact the conversation between Clancy and Pavic included "a number of leading questions, plainly designed to get Mr Pavic to implicate himself in specific ways", Kirby J (at [160]) considered "it was arguable that the proper characterisation of what occurred is that the inculpatory parts of the conversation were not a functional interrogation". Nevertheless he concluded the conversations should have been excluded because of the second Broyles factor, the nature of the relationship between the state agent and the accused. In his view (at [160] - [161]), the police had: "… exploited the relationship between the two close friends in order to extract the statements from Mr Pavic which they needed…. 161 These were not conversationalists who had the relationship of two prisoners in a common cell. They were not new acquaintances engaging in conversation in a social setting. They were close friends, one of whom had been led to believe that he was a suspect and who was motivated to prove his innocence by obtaining for the police as many inculpatory admissions from the other as repeated expressions of anxiety for his own situation could elicit. The police did not remove the fears of Mr Clancy. They sent him to conduct the recorded conversation, counting on those fears. They relied, in the language of Broyles , on the relationship between the two men. They would have anticipated that Mr Clancy, as their agent, would set out to exploit the special characteristics of his relationship with Mr Pavic so as to secure inculpatory statements from him. They were not disappointed. They relied on the association of trust between the two men. Because of the protested fears of Mr Clancy, they could have expected that Mr Pavic, as a close friend, would feel obligated or vulnerable. They were not disappointed. The line of questioning which Mr Clancy pursued was clearly directed to bring about the situation where Mr Pavic would be more likely to talk. By the tests in Broyles , these tactics crossed the forbidden line." 47 Swaffield did not explore the question when a person might be regarded as an agent of the state for the purpose of what, for convenience, we will call the Broyles test. It is helpful, therefore, to return to the consideration in Broyles of the relationship between the suspect and the other participant in the conversation. Iacobucci J said: "27 It is clear from Hebert , supra, that the purpose of the right to silence is to prevent the use of state power to subvert the right of an accused to choose whether or not to speak to the authorities. Where the informer who allegedly acted to subvert the right to silence of the accused is not obviously a state agent, the analysis will necessarily focus not only on the relationship between the informer and the accused, but also on the relationship between the informer and the state . The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required. First, as a threshold question, was the evidence obtained by an agent of the state? Second, was the evidence elicited? Only if the answer to both questions is in the affirmative will there be a violation of the right to silence in s. 7." 48 As to the question whether an informer was a state agent, he said: "30 In determining whether or not the informer is a state agent, it is appropriate to focus on the effect of the relationship between the informer and the authorities on the particular exchange or contact with the accused. A relationship between the informer and the state is relevant for the purposes of s 7 only if it affects the circumstances surrounding the making of the impugned statement. A relationship between the informer and the authorities which develops after the statement is made, or which in no way affects the exchange between the informer and the accused, will not make the informer a state agent for the purposes of the exchange in question. Only 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 . I would accordingly adopt the following simple test: would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents? 31 If this test is applied to a conversation between a police officer and a suspect in custody, it is clear that the conversation would not have taken place but for the intervention of the officer. If it is applied to a conversation with a cell mate who has no contact with the authorities until after the conversation is concluded, it is equally clear that the actions of the authorities had no effect on the conversation, and that there would be no violation of the s 7 right to silence. If, however, the cell mate spoke with the authorities before the conversation took place, then the question will be whether the conversation would have occurred or would have taken the same course had the cell mate had no contact with the authorities." 49 Turning to the issue of elicitation, Iacobucci J said: "37 In my view, it is difficult to give a short and precise meaning of elicitation but rather one should look to a series of factors to decide the issue. These factors test the relationship between the state agent and the accused so as to answer this question: considering all the circumstances of the exchange between the accused and the state agent, is there a causal link between the conduct of the state agent and the making of the statement by the accused? For convenience, I arrange these factors into two groups. This list of factors is not exhaustive, nor will the answer to any one question necessarily be dispositive. 38 The first set of factors concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? 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. 39 The second set of factors concerns the nature of the relationship between the state agent 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? 40 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." Kirby J approved paragraphs [38] – [39] in Swaffield (at 154] – [155]). 50 Iacobucci J concluded (at [41]) that the informer in Broyles was an agent of the state because the meeting was set up and facilitated by the police. The informer was able to have an "open visit" with the appellant, which made possible a free-ranging conversation, only because of the intervention of the police. And the informer admitted he was not frightened during his visit with the appellant "because it had been set up by the police". Further the authorities effectively instructed the informer to elicit information about the death being investigated. As the conversations his Honour set out indicate, the police informed the informer they wanted him to speak to the appellant because the latter "wasn't saying anything". His Honour concluded that if the authorities had not intervened, the conversation would either not have occurred at all, or else would have taken a materially different course. On that basis he concluded that for the purposes of the right to silence in s 7 of the Charter, the informer was an agent of the state. He also concluded (at [42]) that the informer elicited the statements in question from the appellant because he did not allow the conversation to flow naturally but directed it to those areas where he knew the police needed information. By way of example, the conversation included: "JAMES Like I, I already said stuff and whatnot. There's really no more that I can say. TODD You could admit to them that you killed her. JAMES But I didn't. TODD Are you sure? JAMES Yeah." 51 Swaffield was considered in R v Carter [2000] VSCA 6; (2000) 1 VR 175 (special leave refused: (2001) 1 Leg Rep C3). The accused was charged with murder. Evidence was admitted against her of two secretly recorded conversations she had with relatives of the deceased with whom she was acquainted. They were registered police informers. The accused had previously refused to assist the police in their investigation into the deceased's disappearance. She was unaware of the relationship between the informers and the deceased. In the first conversation the accused admitted participating in killing the deceased, including strangling her, and disposing of the body. In the second conversation, which took place the next day while she took the informers to where the body had been left, the accused gave an account of the killing and disposal which differed in some respects from the first account. 52 Charles JA (with whom Chernov JA and Hedigan AJA agreed) held that the evidence of the secretly recorded conversations was properly admitted. He said: "[51] Mr Grace's argument that the first Eyles tape amounted to an interrogation of the applicant by the Eyleses was supported by a detailed examination of the contents of the transcript. I accept that the conversation would not have occurred without the Eyleses having engaged in subterfuge, or significantly misleading the applicant into believing that they were going to assist her to escape detection by the police in relation to her involvement in the death of the deceased. I have no doubt that they sought to exploit their relationship with the applicant and to some extent manipulated her in the process of making admissions. But in my view this was no more than was done by Clancy in obtaining admissions from Pavic, in a case where an investigation of a murder was plainly in progress and Pavic was suspected of the crime. There can be no question that the applicant's admissions were made voluntarily . Mr Grace argued that some of the admissions were not reliable, in that the applicant was 'big-noting' herself in some of her assertions. But I see no reason to doubt the truth of the substance of her admissions, and they were confirmed by the later discovery of the deceased's body, at the place to which the Eyleses were taken by the applicant." (emphasis added) 53 By the time of the second conversation with the accused, the police had evidence to support the suspicion that the deceased had been killed and the accused was a suspect. She was seeking the help of the Eylses to destroy the remaining evidence. The trial judge admitted the second conversation notwithstanding that it involved subterfuge on the Eylses' part because, in his view, it did not amount to the eliciting by interrogation of information in the sense used by the High Court in Swaffield, but, rather, was "a continuing discussion and an attempt to follow up upon what the accused, Carter, had said and to have the body shown to them": see Carter (at [52]). Charles JA agreed that the second conversation was properly admitted. In his view (at [55]) there was no unfairness to the applicant if the tapes were admitted nor was the evidence obtained at a price that was unacceptable having regard to prevailing community standards. 54 Swaffield, Hebert, Broyles and Carter all concerned conversations between the accused and a third party to the crime being investigated. Swaffield and Broyles have also been considered in cases in which the suspect had a conversation with the complainant. 55 In R v M [2002] QCA 486; (2002) 135 A Crim R 324 the appellant was convicted on six counts of indecently dealing with a child under the age of 12 years in his care. He was the complainant's step grandfather. She was six or seven years old at the time of the offences but 16 at the time of trial. Part of the evidence against the appellant consisted of admissions he made when telephoned by the complainant from a police station. At the time of the conversation the appellant had not been charged and the police had not interviewed him. He had not declined to speak of the alleged events to any person in authority. The taping did not contravene any provision of the law: see [6]. The appellant's counsel argued unsuccessfully at trial that in telephoning the appellant the complainant was effectively acting on behalf of the police and that because of the importunate character of her approach, which it was submitted involved badgering and hectoring, application of the principles in Swaffield should have resulted in the exclusion of the evidence: see [8]. He repeated these arguments on appeal. The appeal was dismissed. 56 It is unnecessary to set out the conversation in detail. It is sufficient to note that (see [4]) the admission on which the Crown concentrated was contained in a passage in which the complainant said to the suspect "I just want to know why you did it", pressed him to answer when he prevaricated and put to him the actual act she alleged he had perpetrated. 57 De Jersey CJ (with whom Davies JA and Mullins J agreed) concluded (at [10]), applying Swaffield, that the complainant would be regarded as an agent of the State, in that she spoke with the appellant at the insistence of the police. He also accepted (at [12]) from reading the transcript of the conversation, that it was "importunate, with the complainant asking the appellant over and over again why he did certain things to her". Nevertheless, after listening to the tape his Honour concluded (at [13] – [16]): "[13] Listening to the tape, one reaches the view that the conversation was very much an exchange between a comparatively immature adolescent girl, tearful for much of it, and her mature and confident grandfather. [14] The pathetic tone of the child's questioning and comments is plaintive, not overbearing. There were many occasions on which the appellant could have withdrawn from the conversation had he wished. Indeed, he threatened to do so at one stage unless the complainant changed the subject but he remained on the line and the exchange continued. [15] It is the substantial age difference and contrasting levels of maturity, the apparent self-possession of the older man faced with the emotional and tearful questioning of the child which, notwithstanding the importunate character of that questioning, do in my view prevent a conclusion that the exchange should have been excluded because it amounted to an interrogation or elicitation. [16] Had the appellant felt under undue pressure he could, as I say, have withdrawn. That he did not do so itself suggests that the situation was not from his point of view unfair. In my view it was not, in terms of Broyles, 'the functional equivalent of an interrogation'." 58 The Chief Justice also concluded that in so far as the appellant's responses were incriminating, they were of a high level of reliability: at [18]. 59 In R v Burt [1998] QCA 423; [2000] 1 Qd R 28 (to which de Jersey CJ referred with approval in R v M), the complainant telephoned her father who she alleged had sexually assaulted her when she was a child. She made the call by arrangement with the police who recorded it. Such conversations are referred to in Queensland as "pretext" conversations. Again, it is unnecessary to repeat the conversation. It is relevant to note, however, that it was a long conversation in which the complainant repeatedly put to her father explicit details of what she alleged he had done to her. The appellant contended that the "pretext" conversation ought to have been excluded as involuntary and/or unfair in circumstances where admissions were obtained by inducement and undue insistence and pressure; and ought to have been excluded on the further ground that it contained persistent allegations of improper conduct and denials in circumstances where the repeated allegations would be over-emphasised to the jury and thus be unfair. 60 The Queensland Court of Appeal concluded the conversation was properly admitted. 61 White J (with whom McPherson and Thomas JJA agreed) observed (at [33]) that the "clear flavour of the conversations is at least of equality between the two" and "[t]here was no suggestion by the appellant when he gave evidence that any pressure by the complainant caused him to say what he did". 62 He noted (at [48]), applying R v Jeffries (1947) 47 SR (NSW) 284 (at 311–314), that "it was a question of degree in each case and for the presiding judge to determine, in the light of all the circumstances, whether the statements or admissions of the accused had been extracted from him under conditions which rendered it unjust to allow his own words to be given in evidence against him". In his Honour's view (at [51]) there was nothing improper involved in the complainant's insistence in the recorded conversation on the appellant's wrongdoing and no unfairness was accorded to the appellant in admitting the conversation. 63 Thomas JA also considered whether Swaffield warranted the exclusion of the evidence. He said; " Unfair trickery [10] It is very difficult to be critical of the police conduct in this case. The complainant had come to them, and part of her story was that her father had made limited oral admissions to her over the phone. They gave to her reasonable and proper advice, calculated to obtain reliable evidence for the court. Uncorroborated oral statements alleged by one person and denied by another are a far less satisfactory source of evidence than something that is recorded. I see nothing improper in the police advising this complainant to try to replicate the type of admission that she claimed had already been made. In such a situation a search for corroboration is an important part of the police function, and they ought not necessarily take at face value what a complainant says if reasonable means exist of checking the accuracy of what she claims. [11] When one party knows that a conversation is being recorded and the other does not there is an imbalance and a potential unfairness, though no greater than any case where one party to a conversation knows that legal proceedings are imminent and the other does not. The benefit of the recording is that the jury has an accurate record to evaluate with the benefit of a full overview of the situation, including any manipulative conduct of the complainant. [12] This was a real conversation between two citizens who had a particular relationship with one another. The conversation was not concerned with any issue whether the appellant was choosing whether or not to speak to the police and did not infringe his right of choice in that matter. There is little doubt in the present case that the complainant asked questions of the appellant which she hoped would produce admissions supporting the complaint that she had made. In that sense there was elicitation which is a factor that is given considerable weight in Swaffield. However, I find it difficult to characterise this occasion as an unfair trick, and equally difficult to regard the complainant as a 'state agent'. In Swaffield Kirby J regarded the critical question as 'whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value'. His Honour continued: '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.' [13] I would not regard this particular exercise as unfair or improper. The police advice to the complainant to have a further conversation with her father and their recording of it were appropriate responses to the situation. The relevant acts in the present case clearly falls within the broad category of cases recognised by Kirby J. as 'acceptable deception' by law enforcement officials . 'Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest ( Ridgeway v The Queen (1995) 184 CLR 19at 37; R v Christou [1992] QB 979 at 989; cf Rothman v. The Queen [1981] 1 SCR 640 at 697). There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority (cf Ousley v The Queen (1997) 71 ALJR 1548). Such facilities must be employed by any modern police service'." (emphasis added) 64 M was followed in R v Workman. The appellant was convicted of various sexual offences, all of which related to the same complainant whose age when the offences occurred ranged from about seven to fifteen years. She was the daughter of a woman with whom the appellant had entered a de facto relationship following the separation of that woman and the complainant's father. The principal grounds of appeal against conviction were that the trial judge erred in admitting the content of a tape recording into evidence or, if that was not erroneous, in not exercising his discretion to exclude it. The appeal was dismissed. 65 The tape recording was made at the instigation of the Queensland police after the complainant had reported the alleged offences to them. It was "a 'pretext' telephone call … an investigative procedure used by the Queensland police in respect of which there is a published protocol to be followed when it is undertaken". The recording of the conversation did not contravene any legislation and the call was made and recorded in conformity with the procedure made applicable by the Queensland police protocol. What was done was lawful in Queensland: see [6] – [7] per Grove J (with whom Dowd and Sperling JJ agreed). The appellant's counsel conceded that the conversation was of high probative value to the Crown case in that whilst there were not direct admissions which could attach to particular counts in the indictment there was "ample confirmation by the appellant that he had engaged in sexual activity with the complainant": (at [8]). He argued that the tape recording ought to have been excluded pursuant to s 138 of the Evidence Act as, had it been recorded in New South Wales, it would have been illegal, being a contravention of s 5(1) of the Listening Devices Act 1984. 66 Grove J concluded (at [16]) that "a reading of the transcript of the conversation refutes any suggestion that it was 'the functional equivalent of an interrogation' ". He added: "17 It should not be overlooked that the complainant was a sixteen year old girl speaking to a person who had for a time stood in loco parentis to her. Not only was she scarcely in the position of an interrogator but, if the appellant had felt pressured in any way, he could have terminated the conversation at any time: cf Regina v M [2002] QCA 486." 67 Section 90 of the Evidence Act was most recently considered by this Court in the context of a covertly recorded conversation with an accused in Em v Regina [2006] NSWCCA 336. Em was convicted, inter alia, of murder. In the course of a conversation with police at a police station the appellant refused to participate in a recorded interview. Subsequently the two police officers went to his home and took him to a park to talk. They were wearing covert listening devices. They reminded him of what he had been told at the police station, namely that he did not have to say anything to the police if he did not want to. They did not advise him that what he said to them could be used in evidence against him. The appellant believed the conversation with the police could not be used against him if it was not recorded. The trial judge concluded that it was not unfair in the Swaffield sense to admit the part of the recording of the conversation because the appellant's belief that the conversation could not be used against him was not induced by anything the police said: see Em at [46] – [50]. However his Honour excluded another part of the conversation on the basis that a statement the police made would have conveyed to the appellant that if he spoke to the police about the shooting, what he said would not be used to his disadvantage: Em at [51]. 68 On appeal he argued that James J, the trial judge, ought to have excluded evidence of conversations he had with police pursuant to s 90. Giles JA (with whom Grove and Hidden JJ agreed) rejected that submission. He said: "54 A decision whether or not to refuse to admit evidence of an admission pursuant to s 90 of the Act is a discretionary decision. The language of s 90 calls for an evaluation of whether or not having regard to the circumstances in which the admission was made it would be unfair to the accused to use the evidence, and then a decision whether or not to refuse to admit the evidence of the admission. The process of evaluation is closely analogous with the exercise of a discretion (see Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653 at [35]), and s 90 is closely akin to the common law unfairness discretion considered in The Queen v Swaffield . The evaluation and the decision in combination confer a discretion. Section 90 has been so viewed in, for example, DPP v Attallah [2001] NSWCA 171 at [19], R v Lyberopoulos [2002] NSWCCA 280 at [42] and the decision on the interlocutory appeal. 55 Accordingly, regard should be had to whether there was error in James J's exercise of his discretion of the kind described in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 505, see R v Kyriakou (1987) 29 A Crim R 50 at 57. … 58 I do not think his Honour's application of s 90 was in error in this respect. Fairness or unfairness is multi-faceted, and if it involves the accused's belief that what he says to the police can not be used against him it extends to whether or not that belief was engendered by what the police said or did and, if it was so engendered in whole or in part, whether the police intentionally brought that about. That is so, amongst other reasons, because the propriety or impropriety of the police conduct is material to fairness or unfairness, see McDermott v The King (1948) 76 CLR 501 at 512-3; The King v Lee (1950) 82 CLR 133 at 150-1; The Queen v Swaffield at [14]-[18], [26]-[28], [71]-[78]. In The Queen v Swaffield the reasons of Toohey, Gaudron and Gummow JJ included at [74] that voluntariness, reliability, unfairness to the accused and public policy considerations cannot always be treated as discrete issues. Intention to create circumstances of unfairness in use of evidence is not necessary, but presence or absence of intention is not irrelevant. 68 Reliability has been regarded as a material matter in relation to fairness or unfairness, see Van der Meer v The Queen (1988) 62 ALJR 656 at 666, 669; Duke v The Queen (1989) 180 CLR 508 at 513; The Queen v Swaffield at [18]-[20], [26]-[28], [54], [74]-[78]. It is not necessary to go into whether s 85 of the Act, separately providing for exclusion of an admission unless the circumstances in which it was made 'were such as to make it unlikely that the truth of the admission was adversely affected', has diminished its relevance to the exercise of the s 90 discretion. Ordinarily persons do not make admissions against interest unless they are true; if there is some other reason for an admission, it may be unfair to use it as true evidence if the other reason suggests unreliability. But also, reliability is a matter for the jury; the approach recognised in The Queen v Swaffield at [91] of looking to 'the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned' particularly permits reliability to be left to the jury. 73 Going to trickery by covert recording, the covert recording of a conversation does not of itself make it unfair to use the evidence. Nor is there unfairness simply because, had the accused known the conversation was being recorded, the accused would have declined to participate; that will often be so when duly authorised listening devices are used. Once this is recognised, it can be seen that in considering unfairness because the accused's freedom to choose to speak to the police has been impugned, the freedom to choose may be impugned without unfairness in use of the evidence. It is not enough to say that the effect of covert recording was to impugn the freedom to choose. [His Honour then referred to Swaffield at [91] and [155] and said] 75 The appellant's choice to speak or be silent was affected, because he would not have spoken to the detectives if he had known the conversation was being recorded. But that is so in almost any instance of covert recording, and he was made well aware that he did not have to speak to them at all. It must be asked why he did speak to them and whether the circumstances pointed to unfairness if the evidence was used; I respectfully agree with the discussion of Howie J in the interlocutory appeal." The reference to Howie J was to an appeal by the Crown pursuant to s 5F of the Criminal Appeal Act 1912 from a ruling by Shaw J that evidence of the conversation was not admissible: R v Sophear Em [2003] NSWCCA 374 . 69 Giles JA concluded (at [76]) that the police were not responsible for the appellant's belief that if the conversation was not recorded, evidence of it could not be used against him. The High Court has granted leave to appeal: see EM v The Queen [2007] HCATrans 65. The appeal is to be heard with the appeal in Carr v State of Western Australia [2006] HCATrans 582. Carr concerns admissions made to police in a police station which the accused was not aware was being recorded and which he believed could not be used in evidence against him. Immediately prior to the conversation the accused had effectively refused to answer any questions while being recorded. 70 In our view, without being exhaustive, the following propositions relevant to the present case can be extracted from the authorities to which we have referred concerning the admissibility of covertly recorded conversations: (a) The underlying consideration in the admissibility of covertly recorded conversations is to look at the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned: Swaffield (at [91]) per Toohey, Gaudron and Gummow JJ; (at [155]) per Kirby J. (b) If that freedom is impugned, the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted: Swaffield (at [91]); a conclusion that some or all of the Broyles factors were present did not lead to the admissions being excluded in either Pavic or Carter's cases; (c) Even if there is no unfairness 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: Swaffield (at [91]). (d) The question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and/or improper include whether the accused had previously indicated that he/she refused to speak to the police; (e) The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required: (i) as a threshold question, was the evidence obtained by an agent of the state? (ii) was the evidence elicited? (f) A person is a state agent if the exchange between the accused and the informer would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents: Broyles (at [30]); (g) Absent eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police: Hebert ; (h) Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the state agent for the conduct of the conversation may also be important: Broyles . (i) The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful. 71 We would add that views may differ about whether a complainant is a state agent, even if the conversation is recorded in circumstances facilitated by the police: cf Thomas JA in Burt (at [12]) and de Jersey CJ in M (at [10]). For our part we would not readily apply the label of state agent to a complainant speaking to a suspect who had not been charged, nor refused to speak to police. Rather we would look at the whole relationship as revealed by the participants' past history and what is revealed by the actual conversation. It may be relevant to consider whether the police scripted the conversation. 72 Further, while Iacobucci J did not see it as necessary to recognise a special test for cases involving a victim speaking to the accused, in our opinion, with respect, it might be thought that conversations in such circumstances were more likely to be reliable as the suspect would have no occasion to boast, seek to big note him or herself and, to the extent the victim put allegations that the suspect had committed a criminal act vis-à-vis him or her, the suspect would more readily reject the proposition if it was false. 73 Police could not anticipate that a suspect would readily make admissions to a person asserting he had committed a criminal act against him. As Giles JA said in Em v Regina (at [68]), "[o]rdinarily persons do not make admissions against interest unless they are true". Ground one: application of principles 74 The conversation was recorded legally, pursuant to a warrant obtained by Detective Woodbridge. 75 Although Detective Woodbridge accepted that the appellant was a suspect at the time the exhibit F conversation took place, there is no suggestion that the police had decided to charge him by then. 76 The appellant had not declined to be interviewed by the police. He took the risk when he continued the conversation with the complainant once it turned to the question of what they had done when they were young, that the complainant might speak to the police. 77 While Detective Woodbridge accepted she had written some prompts for the complainant during the conversation, she also said she was taking notes. She denied formulating questions she wanted the complainant to ask the appellant. She was unable to identify which part of exhibit 5 were prompts and which parts were notes. 78 While the complainant acknowledged some questions were placed before him during the conversation by Detective Woodbridge, he could identify only one ("why did you do it to me?") and he was unsure who used the word "rape" first. 79 There was nothing in the circumstances in which the conversation occurred which indicates that the appellant's statements were unreliable. He could have withdrawn from it at any time. We find it particularly powerful that he did not do so despite being accused of having raped the complainant on three occasions during the conversation and despite maintaining that he had terminated his previous conversations with the complainant following references to the complainant making allegations of sexual assault. 80 As we have already said, we find it difficult to conclude that the complainant was an agent of the police. Superficially, looking merely at the relationship between the complainant and the police, he was their agent, because the conversation would not have taken place as it did, that is it would most probably not have been recorded if the police had not obtained a warrant and arranged for the complainant to participate in it. However even if the complainant was a state agent, in our view he did not exploit any special characteristics of his relationship with the appellant. 81 Looking at the relationship between the complainant and the appellant, we cannot say that the conversation would have been materially different if, as a matter of form, the police had not arranged it. The men had a relationship going back to their childhood. The appellant exhibited no unease in participating in the conversation. He was relaxed throughout. He could have terminated the conversation at any time. We cannot discern any inequality in the conversation. If anything, it is the complainant who appears vulnerable, being in an increasingly emotional state. 82 Nor would we conclude any parts of the conversation were the functional equivalent of an interrogation. The complainant had clearly formulated ideas of what he wanted to say to the appellant during the conversation. The evidence did not support the proposition that the police scripted this long conversation. To the extent exhibits 4 and 5 correspond with exhibit F, we cannot conclude that critical parts of the conversation were scripted by Detective Woodbridge, rather than being notes recorded by her of critical parts of the exchange. Further there are other parts of exhibit F the responses to which arguably constitute admissions which do not appear in exhibit 4 or 5. We cannot accept Mr Stratton's submission that the complainant was a "puppet" participant in the conversation. 83 We have had the benefit of reading Adams J's decision in draft. His Honour has concluded that the conversation has a "number of problems", including "frequent multiple questions, … interruptions of the appellant when he attempts to respond, … questions that assume assent or agreement to facts not assented or agreed to, [and] … lies as to what instigated the conversation". For our part we do not detect the same vices. Significantly there was no interruption of the appellant when he was asked questions, the answers to which were relied upon by the Crown as admissions. Further, in our view, the characteristics of the conversation Adams J regards as problematic, in our view, indicate a natural conversation occurring between peers, rather than the sort of formalistic conversation which might be expected in a police interrogation or in a conversation scripted by the police. 84 We note that Adams J has concluded (at [163]) that the reason the police instigated the conversation was the hope that the appellant would make admissions that "it was believed he was unlikely to make if he was being questioned by a police officer." That proposition was not put to Detective Woodbridge, nor did Mr Stratton rely upon it. There is no basis, in our opinion, for that conclusion. 85 Indeed in our view, the available inference is that this conversation was for the police, in part, a test of the complainant's credibility in terms of determining whether the appellant would admit or deny the complaints the complainant had reported to them. No doubt it was an important factor in their decision to charge the appellant, for it corroborated the complainant. It could hardly be suggested that the community would disapprove of the police ensuring they had a proper basis to charge a person before they did so particularly given the complainant's criminal and psychiatric history: see Burt per Thomas JA. 86 Returning to the approach sanctioned by Swaffield, in our opinion the appellant made the admissions relied upon by the Crown voluntarily, in circumstances which do not cast doubt upon their reliability. Further, the conversation did not take place in circumstances which lead to the conclusion that its admission or a conviction obtained, at least in part in reliance upon it, was bought at a price which is unacceptable, having regard to contemporary community standards. 87 This was an "acceptable deception" by law enforcement officials: Burt (at [13]) citing Kirby J in Swaffield (at [155]); see also Brennan CJ, Swaffield (at [35]). 88 As we noted earlier, this argument was developed in the context of ss 90 and 138. Section 85, which applies to evidence of an admission made by a defendant in the course of official questioning, was also relied upon at trial. We would merely note that s 85 might have applied if it could have been concluded that the complainant was the agent of the police and the circumstances in which it was made affected its reliability: see Truong v R (1996) 86 A Crim R 188. However for the reasons we have given, we would not reach either conclusion. 89 Adams J has also considered the application of s 137. We did not understand Mr Stratton to rely upon that provision, but will consider it briefly. The appellant clearly understood what the complainant was putting to him. He tried to explain it as "muck[ing] around a little bit". He did not deny having raped the complainant, nor that he made the complainant "… suck, like suck you off and everything". This was powerful evidence corroborative of the complainant's testimony. In our opinion the probative value of exhibit F was not outweighed by the danger of unfair prejudice to the appellant. 90 There are two other aspects of Adams J's judgment on which we should comment. First, Mr Stratton did not pursue the secondary argument raised at trial that the tape should not be played to the jury. Adams J has considered that point nevertheless, and concluded the trial judge ought to have acceded to this submission. We cannot agree. The tape was the primary evidence. It was properly before the jury. Secondly, Adams J has considered the trial judge did not direct the jury properly in respect of the tape. This was not a matter complained of either at trial or in this Court, points which, in our opinion, indicate that competent counsel realised the directions given by the trial judge were appropriate. In fact, a review of those directions indicates that they were favourable to the appellant, in that they highlighted a number of inconsistencies in the complainant's account. 91 This ground of appeal should be rejected. Ground 2: the trial judge erred in admitting evidence of prior consistent representations of the complainant 92 On the first day of the trial, part way through the complainant's evidence in chief, the Crown Prosecutor sought a ruling on the admissibility of evidence of complaint. The application was made at a time when the Crown was intending to ask the complainant about past complaints to family and friends. 93 The evidence foreshadowed by the application was ultimately given by six witnesses, each of whom related the terms of a complaint made by the complainant at various times, ranging from the mid-1980s through to the late 1990s. Three of those witnesses were childhood friends of the complainant's. Each of them gave evidence of conversations with the complainant contemporaneously with the incidents alleged by the Crown, the subject of counts 1 to 7 inclusive. The precise terms of the complaints varied, although the appellant was identified in each one as the person who had either "touched or played with" the complainant's genitalia, persuaded the complainant to suck the appellant's penis or had "taken advantage of" the complainant. 94 The complainant's mother gave evidence of a general complaint to her when the complainant was in year 12 at school, that is, in about 1989. Apart from indicating that the complainant had experienced sexual abuse, the complainant gave no further information nor identified the appellant. However, at a later time when the complainant was about 21 or 22, the complainant's mother was told that the alleged perpetrator was the appellant. 95 The complainant's former fiancée also gave evidence of a complaint of sexual abuse when they were both about 22 years of age. At that time the complainant did not identify the appellant. At a later time when they were both about 25 years of age (in about 1996), the complainant gave her more details of what had been done to him and by whom. 96 It was conceded at the outset that the complaint evidence could not come within s 66 of the Evidence Act, not being relevantly fresh in the memory. It was submitted that the evidence was nonetheless admissible pursuant to s 108(3) of the Evidence Act, that is, in order to restore the complainant's credibility in anticipation of the suggestion (either expressly or by implication) on the part of the defence that the complainant's evidence was a fabrication (whether deliberately or otherwise). The appellant's counsel at trial submitted that s 108 was not enlivened. 97 The appellant's objection to the evidence was overruled. The objection to the admissibility of that evidence is maintained for the purposes of this appeal. It is submitted that the trial Judge erred in granting leave to the Crown to adduce that evidence, on the basis that section 108 was not triggered by a mere denial of the allegations. Reliance was placed upon this Court's decisions in R v Whitmore [1999] NSWCCA 247 and R v DWH [1999] NSWCCA 255. 98 A consideration of the arguments advanced before the trial judge, in circumstances where a previous trial of the appellant in respect of the same charges had resulted in a hung jury, demonstrates the fundamental flaw in the proposition that the defence case was a "denial of the events alleged without more": Whitmore at [39]. 99 Even before the commencement of the trial, at a time when the Crown Prosecutor was canvassing with the trial judge the Crown's reliance upon the tape recording of the telephone conversation between the complainant and the appellant, the circumstances of the previous trial were outlined in the following terms: "The defence case is that after the complainant suffered a mental illness and the complaint to the police was made, some years after, and it's a contention that will run through this trial that what the complainant has is a false memory caused by his period of time when he was mentally ill. ….. the mental illness is going to be a very large part of this trial. ……. I think that's a fair way of putting how the trial will proceed and how the last trial proceeded, and I've no doubt my friend will correct me, but there is for certain that." No direct response was forthcoming from the appellant's counsel at that stage. 100 The appellant's counsel opened to the jury in the following terms: - "We anticipate that once you've heard … the complainant, you will develop significant and grave concerns for his reliability. You will hear some hair-raising stuff about him and he won't be able to deny it. He will not be able to deny it. On the other hand, you have before you and you will hear evidence to this effect, because it can't be challenged, this man [the accused] has never ever ever been in trouble with the police." 101 The "hair raising stuff" included a history of mental illness, drug abuse and a criminal record, since 1999. The complainant commenced abusing heroin and cocaine in late 1999 or early 2000. He was convicted of stealing in the Local Court on 10 May 2000. In May 2001 he was charged with possession of a prohibited drug, namely cocaine, and in the same month he was charged with assault with intent to rob whilst armed with an offensive weapon, namely a blood filled syringe. In November 2001 he received a sentence, comprising a minimum term of nine months, in relation to that robbery and other offences. In May 2002 he was charged with larceny. The "significant and grave concerns for [the complainant's] reliability" were clearly based on these aspects of the complainant's subjective circumstances. 102 It was against this background that the Crown Prosecutor submitted on the question of the admissibility of the complaint evidence that: - "It's the defence case that, and it is a fact, that in the 90s the complainant first suffered a mental illness then commenced taking illegal drugs, then committed armed robberies and then went to jail. It's the mental illness particularly that gives rise to why I want to rely upon these complaints. At issue is whether the memories of the complainant are truthful or whether they are the result of some or more psychotic episodes. …………………. One of the main attacks will be that the complainant suffered a period of mental illness and the suggestion will be that these memories arise because of it, rather than because they did in fact occur. Mental illness arises in the 90s your Honour as opposed to the 80s. ………………………………………………………………………. The defence say, well there are these psychotic episodes. We respond and say, well there were complaints of it that predate the occurrence of the psychotic episodes and on top of that we have a psychiatrist to confirm what you would expect and in light of that will rely upon s 108. ………..……………………………………………………………. The importance is great because it is the rebuttal of the anticipated attack on the credibility of this witness. My friend's made that very plain in his opening and this is the evidence which will in a sense restrict the jury's hair standing on end." 103 The appellant's counsel's response to these submissions was somewhat disingenuous. In substance, counsel contended that the complainant could be asked about his psychotic episodes, about his prior convictions and his drug abuse without "directly or clearly … suggesting that he is reconstructing … or fabricating it or making it up". It was further submitted that "if it is not either explicitly ordered (sic) or in a strongly influential way put to a complainant that he or she is fabricating or reconstructing … then the Crown …. is precluded from attempting to get delayed complaint evidence in before a jury". 104 Leaving to one side the cross-examination of the complainant on the subject of his drug addiction and criminal history, it is difficult to envisage what other purpose counsel might have in cross examining the complainant about his mental illness than to implicitly suggest to the jury that his account of the appellant's assaults upon him were a product of a disordered and delusional mind. This is particularly so given the nature of the complainant's psychotic episodes. The complainant suffered a complete nervous breakdown in 1999. During that period, he believed that assassins were pursuing him and his fiancée, that they would have their hands and feet severed and their bodies would be cloned. The details of these delusions were elicited in cross-examination of the complainant, his mother and his former fiancée, albeit after the trial judge had granted the Crown leave to call the complaint evidence. 105 The terms of s 108(3) are clear. There is no warrant for reading into the provision a requirement that fabrication be explicitly raised or strongly inferred before the credibility rule is waived. The appellant's counsel had signalled his attack upon the complainant's credibility in the course of his opening (and at the previous trial) and the Crown Prosecutor was justified in making the application when he did. 106 The trial judge was referred to the terms of s 192 of the Evidence Act for the purposes of the grant of leave (T/S 17/2/05 at p 51) and could not have failed to appreciate its significance, despite failing to include it in his judgment on the Crown's application. In any event, a failure to refer in terms to s 192 is not fatal to the grant of leave under s 108 and does not necessarily constitute error: R v Reardon [2002] NSWCCA 203; R v Selsby [2004] NSWCCA 381. 107 At the hearing of the appeal, the appellant's senior counsel also drew the Court's attention to the absence of any directions on the complaint evidence. In the absence of such directions, it is to be assumed that the jury treated the complaint evidence in the same way they treated the other evidence in the trial, that is, that it was available to them for use as to the truth of the assertions made by the complainant. It is submitted that the complaint evidence should have been restricted to the issue of the complainant's credibility, in the light of its reception under s 108(3) as opposed to s 66. 108 However, it is also fairly conceded that once the evidence was admitted, it was admissible as evidence of the fact pursuant to s 60 of the Evidence Act, and that trial counsel made no application for a direction limiting its use under s 136 of that Act. 109 Whilst it is true to say that trial judges are "more likely to limit the evidence [of complaint] to credibility issues when it has been admitted by way of s 108(3)(b) rather than by way of exception to the hearsay rule", a failure to do so, particularly in the absence of a request from trial counsel, does not automatically warrant the interference of this Court. Given that "directions under s 136 should not be made as a matter of course", it was incumbent on trial counsel to seek such a direction: Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 per McHugh J at 326. 110 This ground of appeal should be rejected. Ground 3: his Honour erred in not including in the summing up a summary of the evidence relevant to the matters at issue at the trial. 111 The appellant complains that the trial judge did not summarise the evidence given during the trial. In the course of the summing up counsel for the appellant expressed his concern that the jury had "not been given directions in any sense of assembling even a summary of the facts and having that assemblage allocated to particular trials." 112 He drew his Honour's attention to R v Tillot (1991) 53 A Crim R 46 and while accepting that the trial judge was not obliged to take the jury through the evidence of every witness, nevertheless should collect the evidence on the matters in issue and summarise it to the jury. He asked that the trial judge do so. The trial judge did not accede to that application. 113 Mr Stratton submitted that the trial judge ought to have summarised the evidence having regard to the fact that the trial had run for 17 days. He argued that the trial judge should have referred to the cross-examination of the complainant, his history of drug abuse, his prior criminal convictions and his unsuccessful attempt to blackmail the appellant and the implication those matters had for the complainant's credibility and reliability. He accepted that the trial judge had referred to the complainant's history of mental illness. He also complained that the trial judge had not referred to the evidence called in the appellant's case from his mother and his sister which arguably contradicted factual matters to which the complainant had referred. 114 The Crown submitted that it was not necessary for the trial judge to summarise the evidence. It argued that the nine counts arose out of only four incidents and there was a single issue at the trial: the credibility of the complainant. Most of the time at the trial was taken up by his evidence and the lengthy cross-examination of him. The Crown also noted that while the trial stretched over 17 days, a number of those days were when the trial was delayed because the complainant was ill. 115 The Crown argues that the evidence at the trial was not complex: there were ten witnesses in the Crown case of whom six gave evidence of complaint. The complainant's brother had given evidence that he had never swum naked in the pool with the appellant, which was what the appellant had said in his ERISP he was referring to in the telephone conversation when he talked about "mucking up". Detective Woodbridge had given evidence relating to the taped telephone call, the appellant's arrest and interview, records regarding his ownership of motor vehicles and a birth certificate. Dr Bruce Westmore had given evidence, but even the matter on which he gave expert evidence was not complex or difficult to understand. There were three witnesses in the appellant's case but none of their evidence was complex. Ground 3: Consideration 116 At the end of a criminal trial before a jury, a judge need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary: s 161(1) Criminal Procedure Act 1986. Section 161 is in substantially the same terms as s 405AA of the Crimes Act 1900. 117 In the context of s 405AA, it has been said that whether the trial judge is bound to refer to an evidentiary matter or argument depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence; the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 (at 561). 118 The question whether the summing up is adequate must be considered in the context of the fundamental task of a trial judge to ensure a fair trial of the accused; in some cases, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel: RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 (at [41] – [42]). 119 In R v DH [2000] NSWCCA 360 after referring to these authorities, Stein JA (with whom Smart and Ireland AJJ agreed) observed (at [84]) in the context of a relatively short trial of 4 days where the facts were within a small compass, involving only two counts, and the trial was principally a contest of credibility between the complainant and the appellant: "This must have been patently apparent to the jury and was underlined by his Honour in the summing-up. It is difficult to see what would have been gained (for the jury) by a restatement of the factual matters already the subject of addresses by the Crown and defence." 120 He referred with approval to R v Davis [1999] NSWCCA 15 where Wood CJ at CL said in the context of s 405AA of the Crimes Act (at [21] - [24]): "21 The trial judge, with the consent of the parties, summed up without reference to the evidence. That was a course properly open to him under s 405AA of the Crimes Act, in a trial that had lasted three days, in which there were only six witnesses in the Crown case and none in the defence case. On one view, that approach worked in favour of the appellant, since it avoided the one-sided appearance that may have been presented by a reiteration of the evidence called by the Crown, and silence in relation to the defence. 22 Attention was, however, drawn to the observations of this Court in RJC CCA NSW 18 August 1998, unreported, as well as in Zorad (1990) 19 NSWLR 91 at 105 and Condon (1995) 83 ACR 335 as to the need for the jury to be instructed as to the issues of fact and law which arise in a trial, and where appropriate, to have the evidence to be related to those issues. 23 Those requirements are to be understood in the light of the explanation in Domican (1992) 173 CLR 555 at 561, which was discussed as recently as yesterday by this Court in Williams NSW CCA 9, 23 February 1999 unreported. 24 The need for, and the extent of, any exploration of the evidence and of the issues, in a summing-up, is to be assessed in the context of the trial, its length, its complexity and in the light of the way that it has been run. Where the summing-up in a short trial has followed hard on the heels of a defence address, particularly where the appellant has not offered any evidence, very little is likely to be achieved by a reiteration of the evidence or of the points made by counsel in their closing addresses. To so require would be to credit the jury with little in the way of intelligence or common sense. An exercise of judgment is always required, on the part of the trial judge, to frame the summing-up in a way that is helpful to the jury. To elevate the observations in RJC and Zorad to a requirement that, in every case, regardless of its length or complexity, the trial judge must identify and repeat the points made by defence counsel, the relevant evidence, would be to go too far. Counsel should be expected to contribute in this regard, and to disclose whether they seek more, by way of summary of the evidence and of the submissions, than the judge proposes." 121 It is important to note that the jury had each been given a copy of MFI 2, an agreed document summarising the four separate incidents on which the nine counts were based. 122 His Honour commenced his summing up by reminding the jury of what the charges were and which charges related to which incident. Except for the first incident he gave them a reminder referring to alleged pornographic magazines in relation to a second incident, referring to the third incident as the swimming pool incident and the fourth incident as the dishwashing incident. He then invited the jury to ask questions if they wished to about legal directions or questions of fact. (Summing up pages 1 to 3). After reminding the jury that the onus of proof rested on the Crown to prove the case beyond reasonable doubt his Honour reminded them of which charges related to which incidents and then referred to the elements of the offences (pages 15 to 19). In doing so he reminded them what the alleged act was in each case. He reminded them that there was evidence of good character and told them how they could use this (pages 20 to 21). He also reminded them of the appellant's argument based upon delayed complaint and also of the difficulties that this presented to the appellant in defending himself (pages 21 to 24). He also reminded the jury of the possible unreliability of the prosecution evidence because of mental illness (pages 25 to 26). He also put that the Crown case depended on the evidence of the complainant and told them they must examine it carefully and treat it with considerable caution. He then reminded the jury of the appellant's argument about the inconsistencies in the complainant's evidence. He pointed out that the appellant denied the incidents. His Honour dealt in some length with the recorded telephone call and the fact that at least some of the questions asked were the work of others (pages 28 to 31). 123 In our view the summing up was adequate. It focussed on the critical issues at the trial including the complainant's credibility and factors which might have detracted from it. The alleged facts of each incident were in a short compass and were in the document the jury had been given. In our view his Honour discharged his obligation of ensuring a fair trial of the accused. 124 This ground of appeal is rejected. Ground 4: that the verdicts were unreasonable and inconsistent with the evidence. 125 Mr Stratton submitted that there were many reasons that should have led the jury to have a reasonable doubt about the Crown case. 126 First was the twenty year delay before any complaint was made to police. Next, that the complainant was a person with a history of psychiatric disturbance, drug use and criminal activity. The latter included an occasion when the complainant telephoned the appellant in London in 1999 which Mr Stratton contended, on the most charitable view of the facts, was attempted blackmail. Apart from the taped telephone call, he contended there was no evidence corroborating the complainant. 127 Insofar as the taped telephone call was concerned, Mr Stratton submitted that even if the argument that it should not have been admitted into evidence was rejected, there was a grave risk it had weighed too heavily in the jury's mind. He contended it was not surprising that the appellant did not react to that call with outright denials, given the complainant's apparent or feigned distress and, again, his earlier attempt to blackmail the appellant. 128 Mr Stratton submitted the appellant had done all he could to challenge the prosecution case. He took part in a record of interview with police and gave sworn evidence at his trial. He denied all the allegations. He raised his good character. 129 Mr Stratton next submitted that in the light of the jury finding the appellant not guilty of count 8 on the indictment, it was difficult to see why the jury would not have had a reasonable doubt about the other counts. He contended the guilty verdicts on the other counts were inconsistent with the acquittal on count 8. 130 The Crown submitted that the central issue in the trial was the complainant's credibility. He was cross-examined at length. He was frank about his criminal history and his mental illness. The Crown contended it was far from clear that the complainant accepted he had attempted to blackmail the appellant during the 1999 call. There was evidence that he had made complaints to school friends about the appellant's conduct well prior to the first occasion he suffered any psychotic episodes. It was argued that the tape-recorded call was capable of corroborating the complainant. 131 As to count 8, the Crown contended that the jury might have had a doubt about the matter because it was not included in the complainant's first statement to the police. 132 The Crown submitted that this was a case where significant consideration should be given to the fact that the jury had the benefit of seeing and hearing witnesses, in particular the complainant. If he was accepted, there was ample evidence upon which the jury could convict. Ground 4: Consideration 133 Where a complaint is made that a verdict is unreasonable, or cannot be supported, having regard to the evidence the test the court applies is "whether [the court] thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty"; the court is obliged to act "with a measure of restraint … in taking the serious step of setting aside a conviction based on the verdict of a jury": MFA v R [2002] HCA 53; (2002) 213 CLR 606 at [25] per Gleeson CJ, Hayne and Callinan JJ; at [51], [52] and [58] per McHugh, Gummow and Kirby JJ. 134 The court must make its own independent assessment of the evidence and then consider whether, notwithstanding that as a matter of law there was evidence to sustain that verdict, it was nevertheless open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. The court must pay full regard to the fact that the jury is the body entrusted with the primary responsibility of determining the issue of guilt and that it has had the advantage of having seen and heard the evidence when it was given: R v Niass [2005] NSWCCA 120 at [7]–[8] per Hunt AJA (with whom Grove and Hall JJ agreed). 135 The issue of inconsistent verdicts was considered in MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348. Gaudron, Gummow and Kirby JJ delivered a joint judgment with which Dawson and Toohey JJ agreed on this aspect of the appeal. Relevantly, the joint judgment said (at 366-367) that where the asserted inconsistency "arises in the jury verdict upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness." Their Honours quoted, with approval, Devlin J's judgment in R v Stone (unreported, 13 December 1954) as expressing the test: "[The appellant] must satisfy the Court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or that they could not have reasonably come to the conclusion, then the conviction cannot stand." 136 Their Honours pointed out that: "… the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept the submission that the verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court … to substitute its opinion of the facts for one which was open to the jury. In a criminal trial, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt." 137 We turn first to the argument that the appellant's acquittal on count 8 led to a doubt concerning his conviction on the other counts. 138 Count 8 related to incident 3, the swimming pool incident, alleged to have occurred when the appellant came to the complainant's house to have a swim. 139 The complainant made his first statement to the police in September 2002 and another statement in April 2003. He first told the police about the swimming pool incident in the second statement. As might be imagined the complainant was cross-examined extensively about why he had not mentioned the incident in his first statement. 140 The jury's verdict is consistent with it entertaining a doubt about the reliability of the complainant's evidence in relation to the swimming pool incident on the basis of him not having reported it to the police when he gave his first statement. Discriminating between that count and the other counts demonstrates a logical approach, not an inconsistent one. 141 As to the other counts, once the complainant's evidence was accepted, there was evidence which could have persuaded the jury beyond reasonable doubt that he was guilty of those offences. That included the taped telephone call. It was a matter for the jury to determine whether it contained admissions by the appellant: R v Singh-Bal (1997) 92 A Crim R 397 at 403 per Hunt CJ at CL. If the jury reached that conclusion then it was reasonable for it to reject the appellant's denials of the offences in his ERISP and evidence. 142 This ground of appeal should be rejected. 143 The appeal should be dismissed. 144 ADAMS J: Introduction The appellant, who is forty-two years of age, was convicted by a jury on 11 March 2005 of offences as follows – (i) between 1 January 1983 and 31 December 1983, sexual intercourse without consent with a person under the age of sixteen years; (ii) between 1 January 1983 and 31 December 1983, buggery; (iii) between 1 January 1983 and 31 December 1983, sexual intercourse without consent with a person under the age of sixteen years; (iv) between 1 January 1985 and 31 December 1985, indecent assault, the other person being under the age of sixteen years; (v) between 1 January 1985 and 31 December 1985, sexual intercourse without consent with a person under the age of sixteen years; (vi) between 1 January 1985 and 31 December 1985, sexual intercourse without consent with a person under the age of sixteen years; and (vii) between 1 January 1987 and 31 December 1987, indecent assault. 145 The appellant was sentenced to varying terms of imprisonment resulting in an effective term of five years to commence on 11 March 2005 and expire on 10 March 2010 with a non-parole period of three years to commence on 11 March 2005 and expire on 10 March 2008. Further details are unnecessary as there is no appeal in respect of sentence. 146 The appellant appeals from his convictions, inter alia, upon the following ground – Ground 1: The primary judge erred in admitting into evidence a tape recording of a telephone conversation between the appellant and the complainant. 147 In the circumstances, this raises two issues: whether the conversation was admissible as containing admissions made by the appellant; and, if so, whether the tape recording of the conversation, as distinct from a transcript, should have been admitted. Both objections were distinctly taken at the trial. However, it must be said that only the first was the subject of submissions in the appeal. Despite this, having heard the recording at the urging of counsel, I have formed the view that this Court must also consider the second question. The issue thus raised is a relatively simple one, though possibly not easy to resolve, namely, whether the overwhelming emotional intensity of the complainant's side of the conversation was such as to render its being played to the jury unfairly prejudicial to the appellant. This is very much a matter that depends upon the Court's own assessment of the likely effect of the recording. Accordingly, I am of the view that the Court should consider whether a miscarriage of justice arose from the admission of the tape recording into evidence over the objection of counsel for the defence. Of course, we have the benefit of the submissions of counsel – especially the prosecutor – at first instance. 148 The written submissions in this Court focussed on the decision of the High Court of Australia in R v Swaffield; R v Pavic [1998] HCA 1; (1998) 192 CLR 159 as to whether conversations with suspects instigated (as in Swaffield's case) by an undercover police officer or (as in Pavic's case) by a friend of the offender at the instance of the police, where each of the offenders had earlier declined to speak with police about the alleged offence, should be excluded for admission upon the ground of unfairness or impropriety. In oral argument reliance was also placed on s 90 and s 138 of the Evidence Act 1995 and indirectly on s 137. Taking them in order, s 90 reflects the common law discretion to refuse admission of prosecution evidence that "having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence"; s 137 requires the exclusion of prosecution evidence "if its probative value is outweighed by the danger of unfair prejudice to the defendant"; s 138 concerns the discretion to exclude evidence obtained improperly or illegally. Mr Stratton SC for the appellant also submitted that, even if the court concluded that the telephone conversation was properly admitted, there was a grave risk that it weighed too heavily in the jury's mind. 149 In substance, it was conceded by the Crown prosecutor in this Court that the learned trial judge confined his consideration of the admissibility of the conversation to the weighing exercise required by ss 137 and 138 of the Evidence Act 1995 and did not consider the question of unfairness posed by s 90, though this provision was relied on by counsel for the appellant in his submissions. The Crown case 150 Having regard to the nature of this ground of appeal it is it is helpful, I think, to set out some contextual matters. The allegations of the complainant covered four separate incidents. It was alleged that incident one occurred in 1983 in the appellant's bedroom when the complainant was about twelve. The sexual misconduct alleged was covered by Counts 1-4 in the indictment and allegedly comprised fellatio of the complainant by the appellant, buggery of the complainant by the appellant and fellatio of the appellant by the victim (Count 3 was in the alternative to Count 2 and need not be considered). It was alleged the second incident occurred in 1985, again in the appellant's bedroom although this was a different room in the house by that stage. The complainant was then about fourteen years of age. Other relevant counts in the indictment were 5-7 and involved allegations in that the appellant masturbated the complainant's penis, the complainant fellated him and the appellant performed fellatio on the complainant. Of the matter contained in incident 3, the appellant was acquitted. The fourth incident allegedly occurred in 1987 in the kitchen of the complainant's house, when he was about sixteen years of age. This was count 9 and involved the appellant suddenly entering the kitchen unbeknownst to the complainant and grabbing him in the crotch area and shortly after leaving the house. Conversations between the appellant and the complainant 151 The complainant said that, when he was in Year 11, he telephoned the appellant and asked him whether he was gay and if this was the reason that the appellant had done these things to him. He said the appellant replied that he was not gay and not to worry about it. After he finished school, the complainant was working in the Sydney CBD and happened to have seen the appellant near Central Station on the way to work. The appellant approached him and asked how he was going, but the complainant said he did not reply and kept walking because, "I didn't want to know him". Sometime later he had another telephone conversation with the appellant when the appellant was living in England. He rang the appellant and asked him if he remembered what he used to do to him (the complainant) when he was a child and the appellant responded "yes". The complainant told him that he had a lot of problems as a result of what happened but said that the appellant did not "really have much to say". The complainant told him about mental problems he had and that he wanted to get professional help. He asked the appellant to pay for it and claimed that the appellant responded that he might be able to help him. The appellant's evidence as to the conversations that occurred when he was in the UK, in effect, was that the complainant demanded money and threatened to go to the police if it was not paid. 152 The complainant first contacted the police in 2002 and arrangements were made on 3 March 2003 for the complainant to telephone the appellant (who had returned to Australia) and for a tape recording to be made of the conversation. The tape of the telephone call was admitted as an exhibit and a transcript of the conversation provided as an aide memoire. The Crown tendered the conversation as representing or containing implicit admissions by the appellant that could be used as corroboration of the complainant's evidence as to the matters charged. 153 Of course the conversation needs to be considered as a whole but, for present purposes, I think the following represents the material parts. The complainant commences the conversation by saying that he wanted to be able to talk to the appellant. He then said that, although he was going to get married his fiancé left him because he had a nervous breakdown and reminded the appellant that he had told him about this in their last conversation. He told the appellant that he had ended up in psychiatric care, become a heroin addict and gone to gaol for about a year. He told the appellant that he had been seeing counsellors and psychiatrists "and that's why I'm just calling now". There was then brief conversation about the complainant's gaol experience and his psychotic bouts whilst there. The complainant then returned to the theme of the problems that he had which he spoke to him about when the appellant was in England and said – "… I was having a lot of problems with me, me partner and everything then. Appellant: Yeah yeah. Complainant: And cause I, I told her, you know, like, you know what me and you did when I was a kid. Appellant: Yeah. Complainant: And how, like, she turned against me because of it. Appellant: Mmm Complainant: Like, she didn't say anything to anybody but she just wanted to treat me like a piece of shit…" 154 There was then some conversation about the complainant's continued attempts to communicate with his ex-fiancé. The appellant then changed the subject to a high-school reunion and then said – "Appellant: And that was for everyone, it was open for all teachers and students that had attended the school. It would have been a bit freakish seeing a few of the old teachers ay? Complainant: Yeah. Yeah. I know. I just want to forget them all, Steven. Appellant: Yeah. Yeah. Complainant: Yeah. And, that, like I want to speak to you about, like, you know, what you did to me when I was younger, because it, it's, it's going to be part of, like, the healing process for me. Appellant: Yeah. Sure, sure. Well, do you want me to come out and see you? Complainant: No I, I just, I don't, I don't know if I, cause you've been away for such a long time and that, you know, and I, I, I don't really, I don't really want that. Appellant: Yeah. Ok. Complainant: And that, but, like, like, I don't, I don't, I just don't, I just don't know. I'm just so confused, you know what I mean? Appellant: Yeah. Yeah. Complainant: And that, like, my older brothers aren't there for me anymore…." 155 There was then some short discussion about the complainant's relationship with his brother and his first wife. The appellant then said- "Appellant: They grew apart too, eh? Complainant: Yeah, like, you know what you did to me --- Appellant: Mmm. Complainant: ---Like, you know, when I was younger and that, it sort of made me question my sexuality. Appellant: Yeah. Complainant: And I had a, like, you know, that's another problem for me. I don't know what I am anymore. Appellant: Yeah, Yeah. Complainant: And, like, you know, I, I don't know, why did you do it to me when I was a kid Steven? Appellant: Well, you know, I, like I said to you, you know, the same thing happened with me and Michael [the complainant's older brother] you know, we, Michael approached me, and we just mucked around a little bit. I thought well, this is cool and--- Complainant: Yeah, but I was a kid, Steven. [Long silence.] Talk to me. Appellant: Yeah. Complainant: Like, how old was I? I was only 10, was I about 10? Appellant: Oh, I don't know, mate. Complainant: You know? Appellant: Yeah. Complainant: I felt like you raped me. Appellant: What's --- Complainant: Steven, are you even listening to me? Appellant: Yeah. Are you all right? Complainant: No, I'm not all right. I just don't know why, like, you raped me. Why me? Why me, Steven? [Long silence.] Talk to me. Appellant: I don't know [complainant's first name], it just --- Complainant: What, didn't you realise when you did that to me every kid in the fucking street had started to walk away from me? Didn't you know how hard it was for me? Appellant: No. Complainant: Do you know that everyone just started to shit on me, and my whole, entire childhood's a nightmare? And my father left and my mother …alone. And then he, like, I feel, like, you just raped me and used me body to get off. You said you had a problem with girls, and, like, I just don't know why you didn't choose someone your own age instead of me. Like, you made me suck, like suck you off and everything, and I was only 10. But what, I just need to know why you did it. Steven? Appellant: Do you want me to come out and see you, [complainant's first name]? Complainant: No. I'm just trying to make myself better. And I heard that you're home, and I just thought you could help get myself back together. Appellant: Sure. Complainant: I need to know. I, I have to deal with it at some stage. Appellant: Are you working? Complainant: No, I'm unemployed. I, I'm, like, I'm an invalid, all right? Appellant: An invalid? Complainant: Yeah. Appellant: What, what's wrong with you? Complainant: I have psychosis. I have anxiety complaints. I'm an insomniac. I have depression, like, I have just so many problems in my life, like, because of this. And I have no one to turn to now, but you. Appellant: Yeah. O.K. Complainant: I'm just trying to find some answers. Appellant: Mmm. Complainant: Like, to help, like, to get myself, like, back. I mean, like, I've just lost myself and I don't know how to get back. Appellant: Yeah. Complainant: Do you feel guilty about what you did to me? Appellant: Yes. …you --- Complainant: Why did you pick me, though? Like, you said you might have done something with Michael but he, he was closer to your age but, like, I was so much younger. Appellant: Does Peter still speak to you still? Complainant: Don't talk to me about Peter. Appellant: Mmm? Complainant: Don't talk to me about Peter. I'm just so alone, that's all. And without my mum I'd be dead. Appellant: Yeah. Complainant: My mum is the best person in the fuckin' world, Steven. Appellant: yeah. Complainant: You don't, I just don't know. I was just a kid when you raped me, Steven. And, and I just want to know why you chose me. Was it because I was the closest boy to you and, and, like, I was so close to your family and Donna? Or did you hate me? Appellant: No, I didn't hate you, no. Complainant: Answer me, why did you do it? Appellant: Eh? Complainant: Well, answer me, why did you do it? I was only a kid and you shut the door on me and everything, and you wouldn't let me go. And I just need to know why me? Answer me. Appellant: Well, I best come out and see you and talk to you. Complainant: No, I don't want to see you. I'm going to go and see my counsellor again today. Appellant: O.K. Complainant: And I decided to do this all on my own, O.K? Appellant: All right, mate. Complainant: And I'm not ready to see you yet. Appellant: No, O.K. What's your number,[complainant's first name]? Complainant: My home number? Appellant: Mmm. Complainant: Why, are you going to haunt me? Appellant: I just want to see if you're all right. I'll call you up … Complainant: I don't want you to call me. Appellant: All right. Complainant: I just want you to help me, that, that's all. Appellant: O.K. Complainant: Like, I just wanted to know, like, you now, did you, like, you can't help me. Appellant: No, I, I don't know if I can. Complainant: You, you, but you can help me by telling me why you did it. Appellant: It was just a little muck around thing --- Complainant: What … but what, what was I, just a fuckin 'toy? Appellant: No. Complainant: Well, why did you do it to me? Appellant: I don't --- Complainant: It wasn't, if…. I'd never, I was 10 years old, and you did it to me until I was, like, 15. I, I didn't even have a choice. And now I don't even know who I am. Appellant: [complainant's first name], I don't have any answers for you, mate. Complainant: But you've got to give me an answer because you started it, and now where am I? Well, and what am I supposed to be? Appellant: I don't know [complainant's first name]. Complainant: You created it. Appellant: When you're ready to catch up with me we'll talk about it further. O.K. Complainant: But can you see what you have done to me though? Do you know where I am at now? Appellant: Yeah. Complainant: Did you know this was going to happen? Appellant: No. No one can predict the future. Complainant: I want to talk to you about it now. That's why I called you. Just, like, I, I'm ready to talk to you now, O.K? I'm sorry for crying. Appellant: Just calm your self down. Complainant: You, you don't understand how this has just built up on the inside of me and it's just, like, and my life is fucked out of everyone I know, from the entire area where I grew up, Steven. Appellant: Mmm. Complainant: I'm the lowest form of fuckin' life out of the lot. … I'm just the fuckin' lowest piece of shit. Appellant: O.K. [complainant's first name]--- Complainant: And do you know how that feels? Appellant: No, [complainant's first name]. What --- Complainant: Do you know me? Appellant: No, I don't. I'm sorry. O.K. What, what, why can't you give me your number? Complainant: because I'm scared of you. Appellant: O.K. Complainant: (CRYING) Appellant: O.K. What's your number? Complainant: (CRYING) Appellant: O.K. What's your number? Complainant: I don't want you to call me. Appellant: O.K. mate. Listen I have to go. Complainant: I called you. Appellant: I have to go. Complainant: No, don't leave me. Appellant: I have to go. You … Complainant: You can just; I just wanted to know why you chose me. Appellant … goodbye. Complainant: Steven." 156 It will be seen that the conversation demonstrates a number of problems. Amongst these are the frequent multiple questions, the interruptions of the appellant when he attempts to respond, the questions that assume assent or agreement to facts not assented or agreed to, the lies as to what instigated the conversation. Nor was it suggested in the evidence that any misconduct occurred when the complainant was ten years of age. Moreover, as I discuss later, the complainant is, for much of the conversation – and certainly those parts where he puts the most serious allegations – either crying or speaking with intense emotional feeling. This aspect of the conversation gave the allegations a persuasive character which almost certainly would have powerfully swayed the jury. However, it arose out of a confrontation between the alleged victim and alleged perpetrator, contrived by the police. That could not occur, of course, in a trial where direct questioning of this kind would not be permitted in any circumstances. Had the questioning occurred between, say an undercover police officer or a friend of the alleged perpetrator, it would not have had this character and may far closely have mirrored questions that might properly have been asked in a formal situation. I discuss this troubling aspect of the evidence below when considering R v Swaffield; R v Pavic [1998] HVA1; (1998) 192 CLR 159. 157 The complainant gave evidence that Detective Woodbridge was present during the conversation and had provided notes suggesting what he should say, giving as an example, "Why did you do this to me". In cross-examination, Detective Woodbridge said that she wrote out prompts in note form for the complainant to ask. These notes contained the following phrases – · What are you thinking about? · Do you know how this makes me feel? · Why me? · Do you know what it feels like? · Did it ever happen to you? · Trying to find answers. 158 The officer said that the purpose of these notes was to provide a prompt to keep the conversation flowing if the complainant "got stuck". Whatever the purpose, these questions all assumed the commission of the acts as to which admissions were being sought. I would not accept that this was accidental. Still less because, as will have been observed, the questions were in substance all of this character. In the words of the cliché, they were of the kind exemplified by, "when did you stop beating your wife?" 159 It appears that during the conversation the officer made notes of the following – · I don't want you to call me I'll call you if you can help by telling me why? · Can you see what you've done to me? · Been to see psych that's why I'm calling. · I want to speak to you about what happened when I was ten. · What you did to me. · I want to know why you did it? · I want to speak about what I did when we I was younger · It is part of my healing process. · Not ready for that can we speak about it now? · I want to talk about it now. That's why I called you. · I'm ready to talk · I wasn't gay. I was a kid. · What happened made me question my sexuality · Why did you do it? · I was a kid. Talk to me!! · You raped me! · Why me? · Did you enjoy it? · I need to know now; I have to deal with it. 160 The officer said that some of these phrases were notes of what the complainant had said and some were prompts but he could not recall which of them fell into which category. It was submitted that many, if not all, of the phrases were in the form of prompts rather than mere notes of what had been said. In this Court, the crown prosecutor fairly concede that that some of the questions were prompted by what the officer had written but contended that they were the sort of questions that might naturally occur in a conversation "between two people like this". My reading of the notes and comparing them with the flow of the conversations has led me to conclude that in all probability much of them were prompts rather than notes of what complainant was saying. None of the responses of the appellant were noted. The fact that there was no accurate note taken of the extent to which the police officer intervened is another troubling aspect of this evidence. 161 The appellant was arrested on 3 March 2003 and, in his videotaped interview with police denied any sexual behaviour towards the complainant whatsoever. He said that the complainant had demanded that he place $3000 in his bank account or he would accuse him of sexual assault. He said that he replied, "That's a false allegation...I cannot assist you and don't bother to call me again". He said that the complainant called him again complaining that the money had not been paid into his account and the appellant had said to him, "[T]here is nothing to pay into your account, there's nothing I can do for you, I did not do these things, please don't call me again" and hung up. He said that the complainant was "very threatening" on the telephone. The appellant said that his next contact with the complainant was the recorded telephone call on 3 March 2003. He said that he thought that the complainant was hysterical and had problems because he said he was psychotic. He had told police in his interview in relation to "mucking around" – "What it was, along the lines of, just mucking around, that's what all of, you know, he and the brothers, we, when we went swimming sometimes it was just in the nude. You know, it was nothing else more than that, we were just mucking around. So I never did touch him like that." He essentially repeated this explanation in his evidence. 162 In other evidence, the complainant's ex fiancé said that the complainant had told her that he rang the appellant in the UK because he "wanted him to pay for what he'd done to him" and he asked the appellant for money. Discussion 163 It is obvious that the conversation was instigated by the police officer. It is also obvious that the reason for instigating it was the hope that the appellant would make admissions that it was believed he was unlikely to make if he was being questioned by a police officer. The answers were equivocal. There was some relationship between some of the allegations made by the complainant and the charges – for example "I felt like you raped me" (to which the appellant said "What's ---") which was repeated shortly after immediately followed by an allegation "You made me suck, like, suck you off and everything and I was only ten" to which the appellant simply did not respond. Of considerable forensic force was the failure of the appellant to deny the allegations made by the complainant, which denial would probably have been the expected response of someone to untrue allegations of that kind. 164 I do not think that it could be held otherwise but that the complainant was, in this conversation, acting as the agent of the police. In this Court, counsel for the Crown conceded as much. The focus of the appellant's argument in relation to admissibility is the significance of this fact. 165 It is also submitted on behalf of the appellant that the conversation between the appellant and the complainant was the functional equivalent of an interrogation. The questions largely comprised demands that the appellant should explain his commission of serious sexual misconduct. It was designed to elicit admissions. As I have mentioned, the questions assumed improprieties had been committed which it was sought to have the appellant admit. The language used was calculated to place maximum moral pressure on the appellant to explain his misconduct (and thus to admit its occurrence) and, when he plainly wished not to answer or to avoid answering directly, the complainant persisted even more insistently and with rising emotion on a response. The prosecution agrees that the complainant's questions were asked with the view to elicit admissions if possible and submits that, even if the police suggested some of the things that the complainant might say, this was not unfair. 166 In my view, the complainant should be considered to have been acting as the agent of the police and the conversation as the functional equivalent of an interrogation. In reaching this conclusion, I have left out of account the conclusion stated above that probably much of the conversation was prompted by the police officer. If that conclusion be taken into account, the character of the conversation as an interrogation is demonstrated beyond question. It is evident from the transcript that the complainant used lies for the purpose of seeking the appellant's response. These related to the complainant's motives for making the call and the therapeutic reason for which the explanations were said to be wanted. The use of lies raises for consideration the application of s 138(2) of the Evidence Act 1995. These lies, it seems clear, were "likely to cause the person who was being questioned to make an admission". Hence evidence of the appellant's admissions are "taken to have been obtained improperly". The exercise of the court's discretion as to admission requires the balancing of the considerations specified in s 138(1). In the circumstances here, however, the exercise outlined in s 138 does not add to the considerations that arise under ss 90 and 137 and I do not think it is necessary for present purposes to give it separate consideration. 167 I now turn to consider the application of R v Swaffield; R v Pavic, [to which I now turn] to the present circumstances. Swaffield had been charged with a number of offences and had declined to be interviewed by police about them. When committal proceedings were convened, no evidence was offered and Swaffield was discharged. However, he was one of the targets of a subsequent undercover operation and he spoke to an undercover police officer about matters which formed the basis for one of the charges in respect of which no evidence had been offered and he made certain admissions. Fresh charges were brought against Swaffield in reliance on those admissions which were tendered on his trial. Of course, the undercover police officer had not cautioned Swaffield and objection was taken that, in effect, Swaffield's right to silence had been overcome by subterfuge. So far as Pavic was concerned, he had declined to answer questions about a murder of which he was suspected and was released from custody. Shortly after his release, police obtained a statement from one Clancy, a close friend of Pavic's, which led them to believe that they had sufficient evidence to charge Pavic with murder. However, to strengthen the case, Clancy was induced by the police to speak with Pavic about the crime and record the conversation on a concealed device. In the result, Pavic made admissions about his involvement in the murder and the prosecution adduced the conversations at his trial. 168 Although the Court was divided as to the disposition of the appeal in Pavic (Kirby J dissented), it seems that the whole Court accepted that the appropriate approach was "to think of admissibility as turning first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards" (see 192 CLR at 194-195 per Toohey, Gaudron and Gummow JJ, Brennan CJ at 181-182, Kirby J at 208). 169 Dealing with the right to silence and the nature of police questioning, Brennan CJ said (192 CLR at 185)- "There is a public interest in ensuring that the police do not adopt tactics that are designed simply to avoid the limitations on their inquisitorial functions that the courts regard as appropriate in a free society. In the particular circumstances [of Swaffield's case], the majority of the Court of Appeal gave great weight to that interest. Against that interest, the public interest in having Swaffield's admissions available to the Court on his trial for arson has to be weighed. Pincus JA dissented. There is much to be said for either view. This Court can determine which view ought to have prevailed but when the question touches the standards and methods of police investigation in a particular case, it is undesirable for this Court to intervene except in cases where the decision of the Court below has proceeded on an erroneous principle or is otherwise manifestly wrong. In Swaffield's case, that condition is not satisfied. I would therefore dismiss the appeal in that case. In Pavic's case, the confessional statements were made to Clancy whom Pavic knew as a friend. Clancy was not a police officer or other person in authority over Pavic. There was no impropriety in the police obtaining Clancy's consent to the recording by Clancy of his intended conversation with Pavic. A serious crime had been committed and the means adopted for its solution and for the securing of evidence against the prime suspect were quite legitimate. 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'… The fact that Clancy was regarded as trustworthy by Pavic is an indicator of the reliability of the admissions made to Clancy. There was no public interest to be served by rejecting those admissions…." 170 It will be seen that the circumstances here are placed the case somewhere between the cases of Swaffield and Pavic. Here, unlike in Swaffield's case, there was no interrogation by an undercover police officer. On the other hand, significant questions were put by the complainant at the behest and some probably in the language of the police officer of whom, as I have said, he was the agent. Comparing this to Pavic's case, the complainant certainly was not in a position of authority over the appellant. On the other hand, he was acting on behalf of a person who was a police officer investigating a suspected offence. Furthermore, the questions were not questions which it would be proper for a police officer to ask of a suspect. 171 It may be a significant distinction of this case from those both of Swaffield and Pavic that each of those offenders had already declined to speak with police when they came to make the impugned admissions. The prosecution submitted in this Court that the police had no independent evidence supporting the allegations of the complainant and the case was at the investigatory stage. This is not a material distinction in my view. The crucial issue in this respect is, to use the language of Brennan CJ quoted above, the "public interest in ensuring that the police do not adopt tactics that are designed simply to avoid the limitations on their inquisitorial functions that the courts regard as appropriate in a free society". Those limitations apply as much to the investigatory stage of an inquiry in respect of questioning a suspect as they do after the suspect has been arrested and charged. Nor, to my mind, is it particularly material that the appellant had already exercised his prerogative of silence. It can scarcely be doubted that the police thought he might well do so and it was to forestall this possibility that the conversation with the complainant was instigated. 172 Returning to the approach mentioned at the beginning of this discussion, it can be noted at the outset that there is no suggestion here that the admissions (assuming them to be so) were made involuntarily. Each of the second, third and fourth reasons for excluding an accused's statement assume that it was made voluntarily. Dealing with each of them, Toohey, Gaudron and Gummow JJ said (192 CLR at 189)- "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." 173 Their Honours then go on to discuss each of these matters extensively and I do not propose to set out that discussion in this judgment. So far as unfairness is concerned, their Honours make the point that the notion "necessarily lacks precision…[as] it involves an evaluation of circumstances." The question, however, "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…" (citing Van der Meer v The Queen (1988) 62 ALJR 656 at 666). As it is the fairness of the trial which is in issue, "the unfairness discretion overlaps with the power or discretion to reject evidence that is more prejudicial than probative". Their Honours point out that although "unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone", citing as an example that "no confession might have been made at all, had the police investigation been properly conducted" (see 192 CLR at 189). Dealing with the policy discretion, their Honours point out there is a discretion to exclude confessional evidence even where no unfairness to the accused has been demonstrated, as shown in R v Ireland [1970] HCA 21; (1970) 126 CLR 321, Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, Foster v The Queen [1992] HCA 63; (1993) 67 ALJR 550 and perhaps most exhaustively in Ridgeway v R [1994] HCA 33; (1995) 184 CLR 19. Lastly, there is the well known discretion to exclude evidence where its prejudicial effect exceeds its probative value, well known to the common law and now encapsulated in s 135 of the Evidence Act 1995. 174 Dealing with the particular issues arising where conversations are secretly recorded (192 CLR at 199ff), their Honours referred with approval to Canadian authority. The first of these is R v Hebert [1990] 2 SCR 151 where a statement made by the accused after he had obtained legal advice and indicated to police he did not wish to make a statement were procured by an undercover police officer who was placed in his cell. The following passages from the judgment of McLachlin J (with which Dickson CJ, Lamer, La Forest, L'Heureux-Dube, Gonthier and Cory JJ concurred) were cited by Toohey, Gaudron and Gummow JJ with approval (192 CLR at 200) – "Dealing with the use of use of undercover agents, McLachlin J drew a distinction between observing a suspect and actively eliciting information in violation of the suspect's choice to remain silent. She said: 'When the police used subterfuge to interrogate an accused after he had advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect's constitutional right to silence: the suspect's rights are breached because he has been deprived of his choice. However, in the absence of eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If a suspect speaks, it is by his or her own choice, and he or she must have been taken to have accepted the risk that the recipient may inform the police.' In R v Broyles [1991] 3 SCR 595 the Supreme Court of Canada was constituted by La Forest, L'Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ. The judgment of the Court was delivered by Iacobucci J. The accused was charged with murder; the evidence against him was largely circumstantial but it included a statement which the accused made to a friend after his arrest and after he had been cautioned that he was not required to say anything. The friend visited the accused in prison at the request of the police. The friend wore a recording device. The friend questioned the accused about the killing of the deceased. The evidence of the statements made to the friend was excluded pursuant to the provision of the Charter [the Canadian Charter of Rights and Freedoms]. The Court identified two questions which were necessary for decision but which did not have to be answered in Hebert . 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." 175 In dealing with the crucial question thus exposed, namely the interaction between the course undertaken by the police and the right of a suspect to decline to answer questions, their Honours said (192 CLR at 202) – "[91] However, the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. [emphasis added] in the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, and approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom had been impugned." 176 It is I think, worthwhile to set out the passage from R v Broyles to which their Honours referred, which identifies two important, perhaps crucial considerations. The Court said ([1991] 3 SCR 595 at 611 - "The first set of factors concerns the nature of the exchange between the accused and the State agent. Did the State agent actively seek out information such that the exchange could be characterised as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informant be playing would ordinarily have done? 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. The second set of factors concerns the nature of the relationship between the State agent 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?" 177 As Toohey, Gaudron and Gummow JJ say (192 CLR at 202) – "[91] …where the freedom [of choice to speak to the police] 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 nay 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. ..." 178 Accordingly, in Swaffield's case, Toohey, Gaudron and Gummow JJ concluded "the admissions were elicited by an undercover police officer, in clear breach of Swaffield's right to choose whether or not to speak." And therefore dismissed the appeal from the decision of the Court of Appeal. In Pavic's case, their Honours concluded that Clancy should be regarded as an agent of the State and the relevant question then was "whether the admission by Pavic were elicited by Clancy or were made in the course of the conversation…[or put] another way, was there an interrogation by Clancy?" It seems that third question came down to whether Clancy misled Pavic into making the admissions. Their Honours did not think that the trial judge erred in finding that there was no sufficiently causal link between the allegedly misleading statements and the admissions, dismissed the appeal. 179 Kirby J disagreed with the majority on the outcome of Pavic's appeal, concluding that the discretion to allow the admissions into evidence was wrongly exercised. However, I do not think that his Honour applied a different test to that enunciated by the majority. It is, I think, helpful to set out some of his Honour's remarks. Kirby J set out the passages in Broyles extracted above went on to say (192 CLR at 220 -221) – "[155] I agree in the approach expressed by the Supreme Court of Canada. I do not consider that it is derived from the Charter so as to make it inapplicable to analogous circumstances in Australia. The test propounded is consistent with the general approach which our law has taken towards deception by law enforcement officials. Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest…There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority…Such facilities must be employed by any modern police service. The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. 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. Or it will be crossed where police have exploited any special characteristics of the relationship between the suspect and their agent so as to extract a statement which would not otherwise have been made." 180 In R v Workman [2004] NSWCCA 213; (2004) 60 NSWLR 471 this Court considered an appeal against conviction for various sexual offences following a trial in which was admitted a recorded conversation between the complainant and the accused. The alleged offences occurred between July 1991 and August 1999. In August 2000 the complainant moved from Sydney to reside with her sister in Queensland. Her sixteenth birthday occurred late in that month. The complainant reported the appellant's alleged misbehaviour and consented to participate in a telephone conversation with the appellant. The police officer was located in a separate room when the conversation occurred and it was conceded that the content of the conversation was of high probative value to the Crown case, although there was no direct admission which could attach to the particular counts in the indictment. Grove J (with whom Dowd and Sperling JJ agreed) said "there was ample confirmation by the appellant that he had engaged in sexual activity to the complainant". There was no ground for appeal under s 137 of the Evidence Act 1995, I take it because it was conceded that the evidence had considerable probative value. The appeal was decided by reference to s 138 of the Act, which deals with the discretion to exclude improperly or illegally obtained evidence. It was argued by reference to s 138(2) that, because the complainant made the call to the appellant at the request of the police she should be regarded as an agent of the police and thus conversation should be categorised as questioning within the meaning of that subparagraph and hence, potentially the admission may have been improperly obtained. Grove J said, however, that "the transcript of the conversation refutes any suggestion that it was the 'functional equivalent of an interrogation'", citing R v Broyles and the Court concluded that "the material in this instance does not fulfil the test of impropriety [as discussed in Swaffield] or as specified in s 138(2)". Grove J pointed out that it "should not be overlooked that the complainant was a sixteen-year-old girl speaking to a person who had for a time stood in loci parentis to her…[and not] only was she scarcely in the position of the interrogator but, if the appellant had felt pressured in any way, he could have terminated the conversation at any time…". 181 Although Workman is an example of the disposition of a case where a conversation between a complainant and the appellant said to yield admissions was covertly taped at the instance of the police, I do not think that it yields, with respect, any useful statement of principle that assists in the disposition of the present appeal. The Court's decision as to whether, in the circumstances, the questioning was interrogation falling within the meaning of "questioning" in s 138(2) depended on the facts there found. The factual circumstances here, in particular the terms and character of the conversation, are very different. 182 To take up the two issues posed in Broyles, as accepted in Swaffield & Pavic, it should first be concluded that the material parts of the conversation were "the functional equivalent of an interrogation". It was an interrogation in language and character. In no sense could it be regarded as an ordinary conversation. In form, it would have been seriously improper had it been conducted by a police officer: rolled up allegations were put, the appellant's reluctance to respond was ignored and the allegations put with increased insistence, the appellant was repeatedly interrupted and he was told several times that his admissions of or explanations for wrongdoing were necessary for the complainant's mental health. Secondly, the police did indeed exploit the special characteristics of the relationship between the complainant and the appellant, not so much because of any relationship of trust, but by virtue of the overwhelmingly emotional character of the allegations, both inherently and by the manner in which they were conveyed, which rendered the appellant far more likely to talk and to make admissions. 183 Moreover, the admissions were equivocal and ambiguous and did not relate in anything but the vaguest way to the charges. In this court the Crown prosecutor conceded that they went no further than admission of some form of sexual impropriety. Yet the jury may well have taken them to admit far more. It is not appropriate to work back from the allegations as they were ultimately formulated by the Crown to the admissions allegedly made by the appellant. The terms of those charges cannot make the admissions clear. Nor, in my view, is it appropriate to take, as it were, the minimum position and argue that they were admissions of some form of sexual impropriety and thus the solve the problem of vagueness. There still must be some real link between the alleged impropriety and the charges laid. It sometimes happens that a person admits one act of sexual misconduct that can be related to a particular charge amongst a group of charges. But that admission cannot be used as corroboration of the other charges. Where the admission is general and vague, this problem is not resolved in my view by reducing its proposed use to the lowest common denominator. However, at all events, the jury were given no directions as to how the conversation might be used except that it might be used as admissions. These admissions were never specified. The learned sentencing judge left the subject to the jury in these words – "The Crown submits that it does not matter what the questions were, it was the answers of Steven Pavitt that are important. However, the demeanour of Steven Pavitt, that is to say this highly emotional thing and the colourful words that he used are something that you must have heard and you must determine what weight you give to that telephone conversation. It is a fairly important piece of evidence." 184 With respect, these directions did not deal adequately with the nature of the evidence represented by the conversation. In particular, there was no reference to the fundamental importance of distinguishing on the one hand between what they might believe from the nature of the questions and the way in which they were expressed and what was the true extent of the admissions, if any, made by the appellant. The jury may well have been left with two seriously mistaken impressions: the first is that they were entitled to believe the complainant because of the way he spoke and conducted himself in the conversation, quite apart from the admissions, if any, made by the appellant; the second is, if they accepted that admissions were made, it was not necessary to be concerned with the scope and import of the admissions and the conclusion that some admission was made was sufficient to prove the Crown case or, at least, corroborate the complainant's evidence as to all or most of the charges. 185 No application was made for further directions and this matter has not been the subject of argument in this appeal. In light of the view I have formed as to the proper disposition of the appeal, there is no need to discuss this aspect of the trial further. 186 In my view, for the reasons I have given, the conversation should have been excluded either by virtue of s 90 of the Evidence Act 1995 because, having regard to the circumstances in which it was made it was unfair to the complainant to use the evidence or because under s 137 its prejudicial effect outweighed its probative worth in proof of the specific charges alleged by the Crown. 187 Even if the conversation, contrary to the view expressed above, was admitted, the recording should not have gone to the jury. Counsel for the appellant submitted to the learned trial judge that, because of the emotional intensity with which the complainant made his allegations, the tape recording should not be admitted into evidence. The Crown opposed this course, contending that the tape recording was the best evidence of the conversation. If the tape recording was unfairly prejudicial, the fact that it might be the best evidence of the conversation is not an answer. Unfairly prejudicial evidence must be excluded. (It should be noted that the prosecution would not have lost the evidence, since the transcript of the conversation could have been admitted.) In my view, the unfair prejudice arising from the complainant's part of the conversation, should have led the learned trial judge to have exercised his discretion in the manner sought by the defence, even accepting that the conversation was indeed admissible. The prosecutor argued that the jury could draw inferences adverse to the appellant from comparing the unrestrained emotion of the complainant with the calmness with which the appellant responded to the allegations. In my view, this reasoning highlights the unfairness of permitting the recording to be admitted. As I have mentioned, the allegations made by the complainant and the form in which they had been made could never have been given from the witness box. Moreover, the confrontation had been procured by the police and the highly emotive language used by the complainant had been prompted at least in part by the police officer. My impression of the tape recording is that its true forensic power is not so much the admissions of the appellant but the almost uncontrolled emotional force with which the complainant makes his allegations. In short, there was a grave risk that jury would believe the allegations made by the complainant and disbelieve the appellant, not because of the admissions made by the appellant – so far as they went – but because of the way in which the complainant made the allegations. If the jury were convinced by hearing and seeing the complainant in the witness box, that is one thing, but to be convinced by or to weigh in the balance the complainant's allegations because of the way they were made in this telephone conversation is to my mind unfairly prejudicial to the appellant. It is virtually impossible for him to deal with the conversation either in cross-examination of the complainant or in his own evidence. It is a significant element of unfairness that it cannot be known what parts of the conversation were prompted and what parts were not. There was nothing at all in the directions to the jury to assist them to deal with this very difficult evidence though I acknowledge that no directions were sought. 188 In my respectful opinion, the admission of the tape-recording was productive of significant unfairness. No real question of weighing its probative value with its unfairly prejudicial character can arise. The mode of expression, the emotional intensity and distress of the complainant had either no or almost no probative worth: what he said was admissible only to the extent that it was adopted by the appellant. It was not suggested either at the trial or on the appeal that the jury could infer that the appellant admitted the allegations made to him because he did not deny them, though this was a very likely interpretation of the conversation that the jury might make. Far from justifying its admission, in my view this likelihood demonstrates the unfairness of this use of the tape. Moreover, such is the complainant's emotional intensity, there is a very real risk that it would overwhelm the dispassionate and objective consideration of his credibility. Also, the inevitable consideration of the believability of his allegations as made in the telephone conversation had the real risk that it would deflect the jury from its proper task in respect both of its consideration of the extent to which the conversations contained relevant admissions by the appellant and their evaluation of his credibility as they saw him in the witness box. 189 Accordingly, I would allow the appeal on this ground and quash the conviction. It is therefore unnecessary for me to consider the other grounds of appeal. ********** 04/04/2007 - NSW DPP appeared for Respondent - Paragraph(s) Front sheet 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. 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