Citation: Pavitt v Regina [2007] NSWCCA 88
Court: Court of Criminal Appeal, New South Wales
Date: 2 April 2007
Judge(s): McColl JA, Adams J, Latham J
Background
The appellant was convicted in the District Court of four counts of sexual intercourse without consent with a person under sixteen, one count of buggery, and two counts of indecent assault. The Crown alleged he had sexually assaulted a male complainant on four separate occasions between 1983 and 1987, when the complainant was aged approximately 12 to 16. The appellant denied all allegations and raised good character. He was acquitted on one count.
A central piece of Crown evidence was a covertly recorded telephone conversation made on 3 March 2003, arranged by police, in which the complainant called the appellant. Police obtained a warrant for the recording. A detective was present with the complainant during the call and placed written prompts in front of him. The appellant, who had not been charged or previously declined to speak to police, made statements during the call that the Crown characterised as admissions.
Six witnesses also gave evidence that the complainant had complained about the appellant's conduct to them at various times, ranging from during the incidents in the mid-1980s through to his adult years. The defence challenged the complainant's credibility, pointing to his history of mental illness, drug abuse, and criminal offending, and implicitly suggested his account was a product of a disordered mind rather than genuine memory.
Legal Issues
- Whether the covertly recorded telephone conversation was admissible under ss 90 and 138 of the Evidence Act 1995, or should have been excluded on the basis that it was unfair, improperly obtained, or the functional equivalent of a police interrogation
- Whether the complainant was acting as an agent of the state during the recorded conversation
- Whether prior complaint evidence was admissible under s 108(3) of the Evidence Act to restore the complainant's credibility in anticipation of a fabrication suggestion by the defence
- Whether the trial judge's summing up was adequate to ensure a fair trial
- Whether the guilty verdicts were unreasonable or inconsistent with the acquittal on one count
Decision
Ground 1: Admissibility of the taped telephone conversation (McColl JA and Latham J)
The majority held that the conversation was properly admitted. Drawing on R v Swaffield; Pavic v R and the Canadian decisions in R v Hebert and R v Broyles, the relevant framework requires two threshold inquiries: first, whether the complainant was a state agent; and second, whether the admissions were elicited. Even assuming the complainant was a state agent, the majority found he did not exploit any special characteristics of his relationship with the appellant. The conversation was not the functional equivalent of an interrogation. The appellant participated voluntarily, remained calm throughout, and could have ended the call at any time.
The majority also found the admissions were not unreliable and their admission did not represent a conviction bought at a price unacceptable to contemporary community standards. The recording was made lawfully, pursuant to a warrant. The appellant had neither been charged nor previously declined to speak with police, which distinguished his position from those of the accused in Swaffield and Pavic.
Ground 1: Admissibility of the taped conversation (Adams J, dissenting)
Adams J would have excluded the conversation under either s 90 or s 137 of the Evidence Act. In his view, the complainant was acting as the police's agent and the conversation was the functional equivalent of an interrogation: questions assumed the commission of the alleged acts, the complainant persisted with increasing emotional intensity when the appellant attempted to deflect, and the police officer had provided prompts. The police had exploited the emotional character of the complainant's relationship with the appellant, rendering the appellant more likely to talk. Adams J also found the admissions equivocal and ambiguous, without a sufficient link to specific charges. He further held that the tape recording, as distinct from a transcript, should not have gone to the jury given the overwhelming emotional force of the complainant's side of the conversation, which carried a serious risk of deflecting the jury from objective assessment of the evidence.
Ground 2: Complaint evidence (McColl JA and Latham J; Adams J not deciding)
The majority upheld the admission of prior complaint evidence under s 108(3) of the Evidence Act. The provision allows credibility evidence to be adduced to rebut a suggestion of fabrication, whether made expressly or by implication. Defence counsel's opening, together with the announced strategy of attacking the complainant's mental illness and reliability, sufficiently signalled an implicit fabrication case. The trial judge was entitled to grant leave. The majority also noted that once admitted, the evidence was available as to the truth of the assertions under s 60, and that no limiting direction had been sought by trial counsel under s 136.
Ground 3: Adequacy of the summing up
The majority found the summing up was adequate. Under s 161 of the Criminal Procedure Act 1986, a trial judge need not summarise the evidence if a summary is not necessary in the circumstances. The trial centred on a single issue: the complainant's credibility. The summing up addressed that issue, identified the key factors capable of detracting from the complainant's credibility, dealt with the recorded telephone call, and the jury had an agreed document summarising the four incidents. No error was established.
Ground 4: Unreasonable and inconsistent verdicts
Applying MFA v R and MacKenzie v R, the majority found the verdicts were neither unreasonable nor inconsistent. The acquittal on count 8 (the swimming pool incident) was explicable by the fact that the complainant had not mentioned that incident in his first statement to police. That demonstrated a discriminating, not illogical, approach by the jury. On the remaining counts, the complainant's evidence, accepted by the jury, together with the taped conversation, provided a sufficient evidentiary basis for the convictions.
Orders Made
- Appeal against conviction dismissed.
Key Takeaways
- A covertly recorded conversation between a complainant and an uncharged suspect does not automatically engage the accused's right to silence or warrant exclusion; the critical questions are whether the complainant was a state agent and, if so, whether the admissions were elicited by conduct amounting to the functional equivalent of an interrogation.
- Under the framework in R v Swaffield; Pavic v R, even where a complainant is treated as a state agent because the police arranged and facilitated the call, admissions are not excluded if the conversation was not scripted by police, the accused was free to withdraw at any time, and no special characteristics of the relationship were exploited to extract the statements.
- Section 108(3) of the Evidence Act 1995 permits prior complaint evidence to rebut a fabrication suggestion that is implied rather than expressly stated; an implicit attack on a complainant's reliability through evidence of mental illness or psychiatric history is sufficient to enliven the provision.
- Where a jury acquits on one count but convicts on others arising from distinct incidents, that outcome is consistent with the jury applying the reasonable doubt standard separately to each count, rather than evidence of impermissible inconsistency requiring appellate intervention.
- Adams J's dissent highlights a contested boundary in this area: where a police-instigated call employs emotionally loaded, assumptive questioning and is recorded with audible distress from the complainant, there is a serious argument that both the admissibility of the conversation itself and the admission of the tape recording (as opposed to a transcript) may generate unfair prejudice under ss 90 and 137 of the Evidence Act.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated