Citation: R v Vito, Sione Taulata [2008] NSWDC 333
Court: District Court of New South Wales
Date: 19 December 2008
Judge(s): Nicholson SC DCJ
Background
The accused faced six charges of sexual assault alleged to have occurred on 17 February 2007 at the complainant's residence in Forbes, New South Wales. The Crown alleged a series of non-consensual sexual acts after what had begun as consensual contact. The defence position was that the complainant had consented throughout, or alternatively that the accused lacked knowledge of any absence of consent.
Following the complainant's report to police in mid-February 2007, police obtained a warrant under the Listening Devices Act 1984 and, on 8 March 2007, arranged for the complainant to telephone the accused on his mobile phone. The accused was unaware that police were involved or that the call was being recorded. During the conversation, the complainant sought the accused's address, his employment details, and a response to her account of what had happened between them. The accused made admissions during the call.
The defence applied to exclude the recorded conversation from evidence. The application was interlocutory, decided in advance of trial.
Legal Issues
- Whether the recorded pretext conversation contained admissions of any probative value.
- Whether the complainant was acting as an agent of police during the call, such that the accused should have been cautioned before the conversation commenced.
- Whether admitting the conversation would be unfair to the accused under section 90 of the Evidence Act 1995.
- Whether the conversation should be excluded under section 138 of the Evidence Act 1995 as improperly or unlawfully obtained evidence.
- Whether the nature of the police instructions to the complainant, and the circumstances of the call, rendered the conversation an improper interrogation.
Decision
Nicholson SC DCJ rejected each ground of the defence application. On the question of probative value, the court found the conversation did contain admissions relevant to the charges and could not be characterised as empty of evidential content.
On the agent-of-police and caution arguments, the court drew a careful distinction between the accused being the sole suspect at the time and the accused being an arrested suspect. He had not been arrested or charged when the call was made. Police had a lawful entitlement to arrest him but were not compelled to do so, and the mere existence of that entitlement did not transform the complainant into a state agent required to administer a caution. The court also distinguished the circumstances from cases where police themselves conduct covert interrogations.
On the question of unfairness under section 90, the court found none existed. The instructions given by the investigating officer to the complainant before the call were described as "loose, non-binding and aspirational," focused on obtaining the accused's address and workplace. The complainant did not badger, importune, or challenge the accused during the call. She presented as someone personally aggrieved by his prior conduct, which was consistent with her position, and the accused was free to engage with her, reject her assertions, or end the call. No manipulation of the accused was found to have occurred.
On the section 138 application, the court held that because no unfairness had been established under section 90, section 138 had no independent work to do. The recording was made pursuant to a validly granted listening device warrant, which at least confirmed the lawfulness of the recording itself.
Orders Made
- The application to exclude the pretext conversation recorded on 8 March 2007 was rejected.
Key Takeaways
- The District Court confirmed that being the sole suspect in a police investigation does not, without more, require police to administer a caution before initiating a pretext call. The relevant distinction is between a suspect who has been arrested or charged and one who has not.
- A complainant who makes a pretext call at police request does not automatically become a state agent for the purposes of evidence law, particularly where the instructions given by police are minimal in scope and the conversation is not structured as an interrogation.
- Under section 90 of the Evidence Act 1995, the central question is whether admitting the evidence would be unfair to the accused. The court assessed the totality of the circumstances, including the nature of police instructions, the conduct of the conversation, and whether the accused was subject to any compulsion or manipulation.
- Where no unfairness is established under section 90, a corresponding application under section 138 will not succeed on the same facts without additional grounds.
- A lawfully obtained listening device warrant does not operate as blanket approval of the investigative technique used, but it does confirm that the act of recording the conversation was itself permissible.
Legislation and Cases Referenced
Legislation:
- Listening Devices Act 1984 (NSW)
- Evidence Act 1995 (NSW), sections 90, 137, 138
- Crimes Act 1900 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Cases:
- Reg v Doolan [1962] Q.L.R. 449
- Em v The Queen (2007) 239 ALR 204
- Swaffield (1998) 192 CLR 169
- Broyles v The Queen [1991] 3 SCR 595