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14
Court of Criminal Appeal 2 April 2007

Pavitt v Regina

[2007] NSWCCA 88

Also reported as (2007) 169 A Crim R 452
Sexual offences

Citation: Pavitt v Regina [2007] NSWCCA 88
Court: NSW Court of Criminal Appeal
Date: 2 April 2007
Judges: McColl JA, Adams J, Latham J

Background

The appellant was convicted in the District Court on multiple counts of sexual intercourse without consent with a person under 16, buggery, and indecent assault. The offending was alleged to have occurred between 1983 and 1987, when the complainant was between approximately 12 and 16 years of age. The complainant first reported the matter to police in 2002.

After the complainant made his report, police obtained a warrant under the Listening Devices Act 1984 and facilitated a covertly recorded telephone call between the complainant and the appellant in March 2003. At that point the appellant was a suspect but had not been charged, and had not refused to speak to police. The Crown relied on statements made by the appellant during that call as admissions.

Six witnesses also gave evidence of complaints the complainant had made over the years: three childhood friends who recalled contemporaneous disclosures, and three adults who received complaints made later in the complainant's life. The appellant was acquitted on one count and challenged the remaining convictions on appeal.

  • Whether the trial judge erred in admitting the taped telephone conversation, including whether it constituted a breach of the appellant's right to silence or was the functional equivalent of a police interrogation conducted through a state agent
  • Whether prior complaint evidence from six witnesses was properly admitted under s 108(3) of the Evidence Act 1995 to restore the complainant's credibility in anticipation of a fabrication allegation
  • Whether the trial judge's summing up was adequate, particularly in the absence of a summary of the evidence on contested issues
  • Whether the verdicts were unreasonable or inconsistent with the evidence, including by reference to the acquittal on one count

Decision

Admissibility of the taped telephone call (majority: McColl JA and Latham J)

The majority identified the central question as whether the appellant's freedom to choose whether to speak had been impugned. The relevant framework required two distinct inquiries: first, whether the evidence was obtained by a state agent; and second, whether the admissions were elicited, meaning the conversation was the functional equivalent of an interrogation and the agent exploited any special characteristics of the relationship. Even assuming the complainant was a state agent, the majority found he did not exploit any special relationship with the appellant and the conversation was not the functional equivalent of an interrogation. The appellant could have withdrawn at any time, the admissions were made voluntarily, and the covert recording was lawful. The trial judge did not err in admitting the evidence.

Adams J dissented on this ground. He considered that the emotional intensity and distress expressed by the complainant during the call created a real risk of unfair prejudice that the trial judge had not adequately addressed. In his view, the jury may have weighed the complainant's allegations as made in the call, not merely the appellant's responses, and no jury directions were given to manage that risk. Adams J would have allowed the appeal and quashed the conviction on this ground alone.

Complaint evidence

The majority held that the complaint evidence was properly admitted. Section 108(3) of the Evidence Act 1995 permits evidence of prior consistent statements to rebut a suggestion of recent fabrication. Because the defence case put fabrication squarely in issue, the contemporaneous and later complaints were admissible to restore the complainant's credibility. The trial judge's exercise of discretion to admit the evidence was not in error.

Summing up and verdict

The majority found the summing up, while not including a detailed summary of all the evidence, was not so deficient as to deny the appellant a fair trial. The verdicts were not unreasonable. The acquittal on one count was explicable by the evidence and did not render the guilty verdicts logically inconsistent.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • A covertly recorded conversation between an accused and a state-facilitated informer does not automatically breach the right to silence. Two distinct questions apply: whether the informer was a state agent, and whether the admissions were elicited through conduct amounting to the functional equivalent of interrogation or exploitation of a special relationship.
  • Where an accused has not previously refused to speak to police, and speaks voluntarily during a recorded call without being subjected to interrogation-like conduct, the resulting admissions are not rendered inadmissible merely because the recording was facilitated by police.
  • Under s 108(3) of the Evidence Act 1995, complaint evidence is admissible to rehabilitate a complainant's credibility where the defence has placed fabrication in issue, including where that suggestion is made in anticipation rather than after the complainant has given evidence.
  • Adams J's dissent signals that the admission of covertly recorded calls carries real risk where the non-accused party's emotional expressions may themselves carry illegitimate weight with a jury, particularly absent any jury direction on how to treat such material.
  • In dismissing the appeal, the majority confirmed that an acquittal on one count does not of itself render guilty verdicts on other counts unreasonable or logically inconsistent; the evidence on each count must be assessed separately.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 108(3)
- Listening Devices Act 1984 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Canadian Charter of Rights and Freedoms

Key Cases
- 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
- Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
- R v Workman [2004] NSWCCA 213; (2004) 60 NSWLR 47
- 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
- Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
- Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
- RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
- MFA v R [2002] HCA 53; (2002) 213 CLR 606