Citation: DPP v PM [2011] NSWDC 220
Court: District Court of NSW
Date: 30 November 2011
Judge(s): Judge S Norrish QC
Background
The accused, a medical practitioner, faced two charges of sexual assault alleged to have occurred during the course of treating a patient in November 2008. This was his second trial on these allegations, the first jury having been discharged without verdict.
At the direction of police, the complainant made two telephone calls to the accused on 11 December 2008, approximately three weeks after the alleged offences. Police gave the complainant specific directions about what topics to raise and how to raise them. The calls were recorded under a lawful warrant issued pursuant to the Surveillance Devices Act 2007.
The Crown sought to tender the recordings of those conversations. Senior counsel for the accused objected, and the court conducted a voir dire (a preliminary hearing on admissibility) before the Crown opened its case to the jury.
Legal Issues
- Whether the recorded conversations contained "admissions" by the accused within the meaning of s 88 of the Evidence Act 1995
- Whether the evidence should be excluded under the discretionary unfairness provision in s 90 of the Evidence Act 1995, having regard to the circumstances in which the conversations were obtained
- Whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995
- Whether the complainant, acting on police instructions, constituted a "state agent" for the purposes of the relevant legal tests
Decision
Issue 1: The complainant as a state agent
The court found, without doubt, that the complainant was relevantly an agent of the State for the purposes of the legal analysis. She acted at police direction, with specific instructions about what to raise and how to conduct the conversations. This finding engaged the principles from the High Court's decision in R v Swaffield and the framework adopted by the NSW Court of Criminal Appeal in Pavitt v R, which requires courts to assess whether it was the state agent's conduct that caused the accused to speak.
Issue 2: Unfairness and the accused's freedom to choose to speak
Drawing on the propositions extracted by the majority in Pavitt, the court focused on whether the accused's freedom to choose to speak had been impugned. The court applied the Broyles criteria, which examine whether the exchange was functionally equivalent to an interrogation and whether the relationship between the parties was exploited to extract statements. On the facts, the court found that the manner in which the conversations were conducted had the hallmarks of a directed interrogation rather than an ordinary exchange, and that this engaged the discretion to exclude under s 90.
Issue 3: Discretionary exclusion under s 90 and s 137
The court excluded the evidence on multiple bases. Under s 90, it was satisfied that, having regard to all the circumstances, it would be unfair to the accused to use the evidence. Separately, the court found that the danger of unfair prejudice to the accused outweighed the probative value of the recordings, warranting exclusion under s 137.
Issue 4: Observations on pretext calls generally
Although not strictly determinative of the outcome, the court made pointed observations about the use of complainants to conduct pretext calls. The court noted that the questioning in this case was emotionally charged, included double-barrelled and repetitious questions, and allegedly misrepresented facts. The court observed that if a police officer had interrogated a suspect in the same manner, the resulting evidence would very likely have been excluded, and that equivalent protections ought to apply when a state-directed agent conducts such questioning.
Orders Made
- Evidence not admitted.
Key Takeaways
- A complainant who makes telephone calls to an accused at the specific direction of police, and in accordance with police instructions about content and approach, will be treated as a state agent for the purposes of admissibility analysis under the Evidence Act 1995 and Swaffield principles.
- Under s 90 of the Evidence Act 1995, courts assess whether the accused's freedom to choose to speak was impugned, and may exclude evidence of admissions obtained through a state agent even where the recording was otherwise lawfully obtained.
- The Broyles criteria, cited with approval in Pavitt v R and R v Cavalli, direct attention to whether the conversation was functionally equivalent to an interrogation and whether any special characteristics of the relationship between the parties were exploited.
- Exclusion under s 137 operates independently: even where s 90 might not apply, evidence may still be excluded if the danger of unfair prejudice to the accused outweighs its probative value.
- The District Court expressed serious concern about the use of complainants as directed investigators in pretext call operations, noting that such calls carry risks of distress to genuine complainants, allegations of coached responses, and questioning practices that would not be tolerated from police or counsel in formal settings.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 - ss 84, 85, 88, 90 137
Cases
- R v M [2002] QCA 456
- Pavitt v R [2007] NSWCCA 88
- R v Swaffield [1998] HCA 1
- Em v R [2006] NSWCCA 336; (2007) 232 CLR 67
- R v Truang (1996) 86 A Crim R 188
- R v Lieski [2006] ACTSC 97
- R v Broyles (1991) 3 SCR 595
- R v Cavalli [2010] QCA 343