R v SE [2016] NSWDC 21

District Court New South Wales

Medium Neutral Citation: R v SE [2016] NSWDC 21 Hearing dates: 10/02/2016 Decision date: 10 February 2016 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Recording admitted. Catchwords: CRIMINAL - Evidence, admissibility, admissions, recorded telephone conversations, pretext conversations. Legislation Cited: Evidence Act 1995 Cases Cited: DJS v R [2010] NSWCCA 200 R v Shamouil [2006] NSWCCA 112 R v XY [2013] NSWCCA 121 Category: Consequential orders (other than Costs) Parties: Director of Public Prosecutions – Crown SE - Accused Representation: Counsel: Mr M Pincott – Crown Mr Walsh - Accused

Solicitors: Director of Public Prosecutions - Crown Gordon Garling & Moffitt Lawyers - Accused File Number(s): 2014/00172274

Judgment - Admissibility of two recorded telephone conversations; see transcript page 1. HIS HONOUR: SE was arraigned in this Court yesterday on two counts, one count of sexual intercourse without consent on a person under the age of 16 years and another count of indecent assault upon a person under the age of 16 years, the offences alleged committed between 1 September 1992 and 31 October 1992 at Young. 2. In respect of the prosecution of the matter on indictment the Crown is proposing to call the complainant and other witnesses, the details of the Crown's case in a general sense was just opened upon by the Crown and I need not reiterate what the Crown anticipates its case to be in detail. This morning before the Crown opening commenced the Crown raised an issue that needed to be resolved before the Crown opened its case. Thus a "voir dire" was conducted in respect of the intention of the Crown to tender in evidence two recorded telephone conversations occurring between the complainant and the accused firstly on 26 August 2013, the transcript of which is exhibit 1 in these proceedings on the voir dire and another conversation on 27 August 2013, the transcript of which is exhibit 2 in these proceedings. I did not hear the recordings, I was not asked to listen to them. 3. Objection is taken by learned counsel for the accused to the admission into evidence of the recordings and the relevant transcripts. In respect of the objection I will come back to its terms as I understood it from learned counsel in a moment. 4. The Crown also tendered on the voir dire, as exhibit 3, a transcript of the electronic interview conducted with the accused as I understand it on 5 March 2014. I must say, as often happens in historical sexual assault matters, the delay in the investigation of these matters is scandalous. It is totally unfair to everybody that a complainant should go to a police station in late 2011 and the accused should not be interviewed in relation to the matter until March 2014 and I would assume be charged on that date. I appreciate the matter has been transferred from Local Area Command to Local Area Command, but it is a blight upon the criminal justice system that matters that are reported are not investigated promptly. 5. In any event the Crown has advised the Court that the complainant made a statement to police in December 2011, a warrant was obtained for the purposes of recording the telephone conversations which the police rather confidently concluded would be had between the complainant and the accused. Of course, when the warrant was obtained nobody would have known how many telephone conversations would occur. These telephone conversations are sometimes referred to as "pretext conversations". 6. The Crown case in a nutshell was that when the complainant was 10 years of age she was staying at the home of her maternal aunt which as I understand it the home of the accused. Other people staying within the premises at that time were her maternal grandparents and other members of the family I assume. The allegation in relation to count 1 is that the accused came into her bedroom and removed her pants and penetrated her vagina with his finger or fingers. Immediately after the penetration of the vagina in respect of count 2 the Crown case is the accused touched her thigh or leg and then kissed her, thus giving rise to the allegation of indecent assault. 7. The Crown case is that, as I would understand it, almost within some short time of minutes there was immediate complaint by the complainant to her maternal grandmother of wrongdoing on the part of the accused. What particulars were provided to her do not matter at this time. I understand from the Crown's opening that the accused was confronted by the grandparents. There is an allegation that in fact the grandfather of the complainant struck the accused. Whether that should be admitted or not has not been a matter debated with me. I fail to see how it could establish any matter relevant in this case. Be that as it may the Crown has opened upon it. 8. It seems from the Crown opening that in fact the complaint of the complainant was conveyed to her mother or other responsible adults to the point where at some time, some days later perhaps as it is not clear on the Crown opening, the complainant's family met in Young as I understood the opening and there was discussion about whether the matter should be reported to the police. As I understand it from the Crown's opening at the relevant time the complainant lived normally on the Central Coast. It was decided as I understand it by adults, on behalf of the complainant, the matter should not be reported to the police. Thus the Crown case is one of "historical sexual assault". But without the "normal", if I might call it and I am not making any comment about the matter, "delayed complaint" which often arises in such matters. I am well aware of the authorities which deal with the issue of there may be good reasons why complainants may delay in their complaint. 9. With regard to the interview conducted with the accused on 5 March 2014 the "pretext" conversations were played to him and the accused was given an opportunity to comment upon them. The accused's answers in the interview concerning the "pretext" conversations involved on his part explaining what he meant in part in the course of the conversations, but distancing himself from "wrongdoing". 10. The objection taken by learned counsel for the accused, Mr Walsh, is as I would understand it is that the representations made by the accused in the course of the two recorded conversations are "ambiguous" to use his word. Another word might be "equivocal". That they are not capable as I would understand his submission of being relied upon by the jury as relevant admissions or confessions of wrongdoing and that this is to be seen in the context of the explanation the accused gave in relation to those recordings when he was interviewed by the police. The Crown relies upon the "pretext" conversation representations of the accused as relevant "admissions". 11. If I could just briefly turn to the evidence in summary. Exhibit 1, the first recording, amongst other things has the complainant saying in the course of explaining that she was going to be married on the weekend and something that happened when she was younger "with you" has caused her, " .. a lot of grief of over the years and I just really wanna put that all behind me and make a fresh start"... "I don't know, I just need some sort of acknowledgement from you that what you did was the wrong thing". 1. The accused after the complainant had some more words said, "Yeah, yeah sorry for what happened I shouldn't have done it and yeah". 1. Later, or shortly afterwards I should say, the accused is recorded as saying according to the transcript, "Sorry for all the grief that it caused you". 1. The complainant said, "Yep I appreciate you saying that". 1. The accused said, "At that time I didn't realise that it would … (inaudible)" 1. The complainant then said, "Yeah I know. I don't think a lot of people realise that when they do you're not the first person who's done that to a child, I think a lot of people don't realise at the time how much at the time it ends up affecting the child's life. You know what I mean? I've had nightmares for years and you know I've been petrified of you for years and I just don't, don't want to be that way anymore so I appreciate you talking to me, I just really needed to get closure on it all and move on". 1. The accused is recorded as saying, "It's affected your relationship with your family anyway", which the complainant did not understand. There was some discussion about some division in the family and the complainant then said, "Yep all right, that's all I had to say so umm I appreciate you taking the time to listen and for acknowledging what happened and you shouldn't have done it". 1. The accused's reply according to the transcript is, "inaudible". The complainant then says, "All right I will let you go then" and then the accused is recorded as saying as if something he said earlier had been interrupted, " .. amount of trouble it caused you at the time with it". 1. The second conversation the following day (Exhibit 2) includes the complainant in the context that I have outlined saying: "I forgot to ask why you did it ..?" 1. The accused replied, "Don't really know why. Just went into pull the bed clothes over you." "'Cause I remember that, that time when I was, I think I was like nine or 10. I know Ben was just. It was either Ben or Jack, he was like in the same room, wasn't he, from memory, he was like in a cot. I remember that time and like another time briefly when I was sitting on your lap and it was a little tickle game and then things sort of happened that shouldn't have. Is there any other time other than those two times that you remember or was it just those two times?" 1. The accused said, "I can't hear you too well, I think I..." 1. And then after the complainant said, "Can you hear me now?", the accused said, obviously reflecting that he had heard some of what the complainant said, "Only the once I thought". 1. The complainant said, "Okay, was it um, like was it just the one? Was it just me that you, like you did it to or have there been others other the years?" 1. Answer, "Nah, no, just you". 1. The complainant said, "So it was just a one-off mistake?" 1. Answer, "Just a spur of the moment thing". 1. The complainant said something and then the accused said, "I got up to go to the loo and check, check bed clothes were on and pulled them over you. I must have touched you". 1. The complainant said, "Oh yep, yeah, because I mean, yeah, I was in bed and I remember it was like yesterday". 1. And then she said, 2. "Like you acknowledge you touched me where you shouldn't have and that was wrong?" 3. Answer, "Yeah". 1. The complainant said, "Yep, okay, so there's no real reason why, just a spur of the moment thing?" 1. And the accused said, "Just a spur of the moment thing". 1. There was then other conversation. 2. I have taken the liberty of reading some relevant portions of the pretext conversation, acknowledging, as I said earlier, without going into the detail, that there is extensive questioning of the accused in the course of the electronic interview in March 2014 where he seeks to explain some of the things that he said. 3. In respect of the legal issues that arise, the Crown asserts that the accused's representations, seen in a context of the Crown case against the accused and considering the two recordings together, constitute admissions by the accused, or an admission by the accused, relevant to the circumstances surrounding the two counts in the indictment occurring at night when the complainant was in bed. 4. The "Dictionary" of the Evidence Act 1995 states this, "Admission means a previous representation that is: 1. made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding) and 2. adverse to the person's interest in the outcome of the proceeding". 1. In this matter, in the context of inviting the parties to call whatever evidence they wished, being told that the material presented by the Crown was sufficient, no issue of voluntariness arises, no issue was argued about unfairness, for example, pursuant to s 90 or in some other way. With respect to the submission put by learned counsel for the accused, in my view, it could be fairly said that there could be not said to be in respect of the relevant representations upon which the Crown would wish to rely made by the accused any 'ambiguity' in his responses to the representations made by the complainant. 2. The situation is, having regard to the definition of "admission", that there are representations of the accused which can be taken as representations against the interests of the accused relevant to the circumstances concerned with counts 1 and 2. 3. The complaint of the defence, in its submissions skilfully put by Mr Walsh, that there were insufficient particulars provided in the conversation from the complainant falls away when one has regard to what the accused specifically admitted in the interview, having regard to the Crown case. 4. To come back to the use of the word 'ambiguity'. In the overall context of the case, and this includes taking into account the explanations given by the accused in the electronic interview, in my view, the purported ambiguities are matters that go to the weight of the evidence and certainly are not concerned with the assessment of the issue of "relevance" as defined by s 55 of the Act or a consideration of the "probative value" of the evidence in the context of judgments of the Court of Criminal Appeal such as Shamouil, XY and DJS, judgments I hasten to say, that were extensively discussed in the trial that I have just received a verdict in which has interrupted the conduct of this trial. I have been conducting, in effect, two trials at the one time. 5. Thus, I have concluded, that the evidence is relevant. That the evidence is admissible, pursuant to the relevant provisions of the Evidence Act at Part 3.4, providing an exception to the hearsay rule as evidence of a relevant "admission". There is, as I said earlier, no basis argued or even hinted at to exclude the admission by reference to other provisions in Part 3.4 of the Evidence Act 1995. 6. The one matter of course that concerned me and I raised it directly with Mr Walsh, was the issue of s 137 of the Act. Obviously, if the probative value of a particular piece of evidence is outweighed by the unfair prejudice caused by the evidence, the evidence must be excluded. The probative value of the evidence is a matter in the context of the case, as I earlier cited, where one has to consider the issue of the capability of the evidence to be acted upon in a particular way by the jury. It is not for me to assess the 'reliability', of any representation made by the accused. I hasten to say, in this context, there is absolutely no doubt, as I understand it, that the relevant representations were made. Thus the objective reliability of the representations is beyond any doubt whatsoever. The issue of 'reliability', is actually concerned with whether the representations were true. To my mind this is a matter that has to be seen in the context of the answers given by the accused in the interview and is not a matter that is of any moment, in this case, in considering the issues that arise under s 137. It is a matter entirely for the jury not this Court. 7. In any event, having regard to the probative value of the evidence, the issue is also one of considering the potential for unfair prejudice. In my view the unfair prejudice that might be divined would be the potential for the evidence to be misused by the jury. I am of the view this can be dealt with by appropriate direction. The admissions of the accused are capable of establishing that the accused was in the room with the complainant and in some way touched her or had contact with her, in the course of an evening when she was staying in the house. That evidence contained within those representations would have to be seen in the context of the wider Crown case. 8. The jury would be told, obviously, that the admission of the accused is not a confession by the accused, of digital penetration and it is not a confession of indecent assault. But it is an admission that can be considered with the other evidence in the case, including, if I could call them the exculpatory explanations of the accused in the interview, for the jury to determine what weight it has in supporting or not, the evidence of the complainant in relation to the allegations. Thus, in the circumstances of the matter I am prepared to admit the pretext conversations. 9. There is one matter we have not discussed. It has not been raised with me directly. I did not have much time to consider the detail of exhibit 1 and 2 because, as I said, I am trying to run two trials at the one time. There may be some argument as to whether part of the representations made by the complainant to the accused ought be deleted from the recording. I particularly refer to, and this is a matter for debate I have not formed a considered view about it, some representations made by the complainant such as: "I've had nightmares for years and you know I've been petrified of you for years". 1. It seems to me, with respect, that that statement does not necessarily add any weight or provide any real context for the representation made by the accused in reply. I am prepared to hear further submissions about the aspects of that matter at an appropriate time. 2. Thus, I will admit the recording subject to any discussion about editing.