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36
Court of Criminal Appeal 20 December 2013

R v Burton

[2013] NSWCCA 335

Also reported as (2013) 237 A Crim R 238
Sexual offences
CRIMINAL LAW CROWN APPEAL CRIMINAL APPEAL ACT 1912, S 5F(3A) CRIMES ACT 1900, S 61I PRE TRIAL EVIDENTIARY RULINGS

Citation: R v Burton [2013] NSWCCA 335
Court: Court of Criminal Appeal
Date: 20 December 2013
Judge(s): Simpson J (principal judgment); R A Hulme J and Barr AJ agreeing

Background

The respondent faced trial in the District Court on a charge of sexual intercourse without consent under s 61I of the Crimes Act 1900, arising from events on a luxury charter yacht on 18 May 2012. The complainant had been employed as a stewardess on the vessel. The Crown alleged the respondent performed a sexual act on the complainant while she slept.

On 30 May 2012, the respondent sent the complainant a text message apologising for the incident. Police subsequently obtained a surveillance warrant and, on 12 June 2012, the complainant participated in a telephone call with the respondent that was covertly recorded. During that call, the respondent made statements the Crown characterised as admissions.

At pre-trial proceedings in July 2013, the trial judge made two evidentiary rulings that prompted the Director of Public Prosecutions to appeal. First, the judge excluded the recorded telephone call. Second, the judge granted the respondent leave to cross-examine the complainant about her alleged sexual interest in a stranger she had encountered in a bar the night of the offence.

  • Whether the Director could invoke the appellate jurisdiction under s 5F(3A) of the Criminal Appeal Act 1912, which permits Crown appeals against evidentiary rulings only where the ruling "eliminates or substantially weakens the prosecution's case"
  • Whether the recorded telephone conversation was properly excluded under s 90 of the Evidence Act 1995 (unfairness to the accused) or s 137 (probative value outweighed by unfair prejudice)
  • Whether the complainant was an "agent of the State" during the recorded call, such that her conduct amounted to interrogation without the respondent's free choice to speak or remain silent
  • Whether evidence of the complainant's alleged sexual interest in a third party fell within the prohibition on sexual experience evidence under s 293 of the Criminal Procedure Act 1986, or was otherwise inadmissible

Decision

The recorded telephone call. The trial judge had excluded the recorded call primarily on the basis that the complainant's conduct in the conversation amounted to the "functional equivalent of an interrogation," treating her as an agent of the State. Simpson J rejected this reasoning. Australian law, unlike some Canadian authority, does not recognise a doctrine that voluntarily made admissions become inadmissible merely because a third party (acting with police knowledge) elicits them through conversation. The complainant's behaviour in the call did not render the respondent's statements involuntary, and there was no basis under s 90 to exclude them as unfair.

On s 137, the trial judge had weighed the probative value of the admissions against the risk of unfair prejudice. Simpson J found the judge erred by treating the existence of an innocent explanation for the admissions as a reason to discount their probative value at the admissibility stage. Probative value under s 137 is assessed by reference to how strongly the evidence bears on a fact in issue, not by whether the jury might accept or reject it. The call retained substantial probative value and should not have been excluded.

The sexual experience evidence. The trial judge permitted the respondent to cross-examine the complainant about her apparent sexual interest in a stranger at a bar earlier on the night in question, on the basis that this fell within the s 293(4)(a) exception covering events "at or about the time of the commission of the offence." Simpson J held the evidence did not qualify for that exception. More fundamentally, the evidence was irrelevant: a willingness to engage sexually with one person discloses nothing about a willingness to engage with another. The proposed evidence would have invited the jury to reason from a false premise.

Simpson J also held that the erroneous admission of defence evidence can "substantially weaken the prosecution's case" within the meaning of s 5F(3A), confirming that the provision is not limited to prosecution evidence that is excluded. Admitting this evidence would have raised a false issue and diverted the jury from the real questions at trial, satisfying the jurisdictional threshold for a Crown appeal.

Orders Made

  • Crown appeal allowed
  • The ruling excluding the recorded telephone conversation between the complainant and the respondent on 12 June 2012 was vacated
  • The ruling admitting evidence of the complainant's prior sexual experience under s 293(4) of the Criminal Procedure Act 1986 was vacated

Key Takeaways

  • Australian law does not adopt the Canadian doctrine treating a co-operating third party's conduct in a recorded conversation as a "functional equivalent of interrogation" that renders an accused's admissions involuntary or excludable under s 90 of the Evidence Act 1995.
  • Under s 137 of the Evidence Act 1995, the existence of an innocent alternative explanation for a piece of evidence does not reduce its probative value for the purpose of the admissibility balancing exercise; credibility, reliability and weight are jury questions, not threshold admissibility filters.
  • Section 5F(3A) of the Criminal Appeal Act 1912 permits the Crown to appeal against the erroneous admission of defence evidence, not only against the exclusion of prosecution evidence, where that admission substantially weakens the prosecution's case.
  • Evidence that a complainant showed sexual interest in a third party, offered to support an inference that she was generally sexually available, is irrelevant and does not fall within the s 293(4)(a) exception for events "at or about the time of the commission of the offence."
  • In cumulative multi-ruling appeals under s 5F(3A), the Court of Criminal Appeal may consider the combined effect of erroneous rulings when assessing the jurisdictional threshold, following R v Nguyen [2010] NSWCCA 97.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Act 1912 (NSW), s 5F, s 5F(3A)
- Criminal Procedure Act 1986 (NSW), s 293, s 293(3), s 293(4)(a)
- Evidence Act 1995 (NSW), s 90, s 98, s 137
- Surveillance Devices Act 2007 (NSW)

Cases
- R v Nguyen, John Viet; R v Nguyen, Anthony Si [2010] NSWCCA 97
- DAO v R [2011] NSWCCA 63; 81 NSWLR 568
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296
- R v Broyles [1991] 3 SCR 595 (Canada)
- R v Hebert [1990] 2 SCR 151 (Canada)
- Cleland v The Queen [1982] HCA 67; 151 CLR 1
- McDermott v The King [1948] HCA 23; 76 CLR 501
- Dupas v The Queen [2012] VSCA 328; 218 A Crim R 507
- R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
- R v Pavitt [2007] NSWCCA 88; 69 A Crim R 452
- DSJ v Director of Public Prosecutions (Cth) [2012] NSWCCA 9; 215 A Crim R 349
- Doney v The Queen [1990] HCA 51; 171 CLR 207
- R v BD (1997) 94 A Crim R 131
- R v Edelsten (1989) 18 NSWLR 213
- R v Murray (1987) 11 NSWLR 12