AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 1 May 2014

R v Reitberger

[2014] NSWDC 154

Sexual offences
CRIMINAL LAW JUDGMENT PRETEXT CONVERSATIONS ADMISSIBILITY OF SEXUAL ALLEGATIONS

Citation: R v Reitberger [2014] NSWDC 154
Court: District Court of New South Wales
Date: 1 May 2014
Judge(s): Williams ADCJ

Background

The accused, a medical practitioner, was charged with two counts of indecent assault and one count of sexual intercourse without consent arising from a consultation at his Burwood practice on 13 June 2012. The complainant alleged that during the visit the accused masturbated him, rubbed his perineum and anal area, and digitally penetrated his anus. The accused did not dispute the consultation took place but denied the alleged conduct, contending that any physical examination was carried out for a legitimate medical purpose.

The complainant made a formal complaint to the Health Care Complaints Commission (HCCC) within days of the alleged offending and later provided a statement to police. After obtaining a warrant under the Surveillance Devices Act 2007, police asked the complainant whether he would telephone the accused or wear a body wire to a meeting with him. The complainant agreed to telephone the accused, and two recorded calls were made from Burwood Police Station on 2 November 2012.

The defence applied on the voir dire (a preliminary hearing conducted in the absence of the jury to determine admissibility) to have both recorded telephone conversations excluded from evidence. The application was made under sections 90, 137 and 138 of the Evidence Act.

  • Whether the two pretext telephone conversations should be excluded under s 90 of the Evidence Act on the basis that it would be unfair to the accused to use the admissions.
  • Whether the calls should be excluded under s 137 on the ground that their probative value was outweighed by unfair prejudice to the accused.
  • Whether the calls should be excluded under s 138 as evidence obtained improperly or in contravention of an Australian law, given that police deliberately used the complainant as an investigative tool to circumvent the requirement to administer a caution.
  • Whether the complainant's misrepresentations and inducements during the calls affected the admissibility of anything the accused said in response.

Decision

Williams ADCJ declined to exclude either recorded call and dismissed the defence application in full.

On the question of whether the calls amounted to improper conduct attracting exclusion under s 138, the court accepted the facts squarely: police had enough evidence to arrest and charge the accused before the calls were made, and the officer in charge acknowledged he used the complainant as an "investigative tool" specifically to circumvent the obligation to caution the accused. However, the court found that the calls were not police questioning in any formal sense. The complainant was not given a script or instructions, was alone in the room when making the calls, and retained his own autonomy throughout the conversations. The court was satisfied police did nothing more than encourage discussion on the matters in issue.

On the s 90 discretion, the court examined the nature of the conversation closely. The complainant made certain untrue statements during the calls, including that he had not told anyone else about the alleged incident and that he would be flattered if the accused had acted out of attraction. The court noted that in a conventional police interview such misrepresentations and inducements could affect the fairness of using admissions. However, applying the principles from Pavitt v R and R v Burton, the court concluded that the conversation did not take place in circumstances analogous to formal police questioning, and that the accused was not the kind of vulnerable or pressured person those protections were designed to address.

On s 137, the court acknowledged that the evidence was both highly probative and prejudicial to the accused. It observed, however, that unfair prejudice in this context means something more than the ordinary disadvantage flowing from inculpatory evidence. The court could not identify any realistic risk that the jury would misuse the evidence in a way that could not be adequately addressed by appropriate directions, and so declined to exclude on this basis.

Orders Made

No orders were made in this decision. The judgment dismissed the application to exclude the two recorded telephone calls from the jury.

Key Takeaways

  • The District Court confirmed that where a complainant places pretext calls with police facilitation but without a script, instructions, or direct police supervision, the resulting conversations do not constitute formal police questioning for the purposes of the Evidence Act exclusionary provisions.
  • Applying Pavitt v R [2007] NSWCCA 88 and R v Burton [2013] NSWCCA 335, the admissibility of victim-initiated pretext conversations turns on the totality of circumstances, including the degree of police direction, the vulnerability of the accused, and the nature of any inducements or misrepresentations made.
  • A police officer's acknowledged intention to circumvent the caution requirement by using a complainant as an investigative tool does not, of itself, render resulting evidence inadmissible, particularly where the complainant acted substantially on their own initiative during the calls.
  • Under s 137 of the Evidence Act, unfair prejudice requires more than ordinary inculpatory weight. Evidence is not excluded merely because it is damaging to the accused; the unfairness must arise from a real risk that the jury would apply the evidence for an improper purpose not addressable by directions.
  • Misrepresentations and inducements made by a complainant during a pretext call are relevant to the admissibility assessment, but do not automatically require exclusion in the way that similar conduct would in a formal record of interview conducted by police.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 90, 137, 138
- Surveillance Devices Act 2007 (NSW)
- Listening Devices Act 1984 (NSW)

Cases
- Pavitt v R [2007] NSWCCA 88
- R v Burton [2013] NSWCCA 335
- R v Broyles [1991] 3 SCR 595 (Canada)
- WK v R [2011] VSCA 345
- R v Swaffield; Pavic v R (1998) 192 CLR 159
- Duke v R (1989) 180 CLR 508
- DJS v R; NS v R [2012] NSWCCA 9
- Juric v R (2002) 199 A Crim R 408
- R v XY (2013) NSWCCA 121
- R v LDV (No 2) [2013] NSWDC 215
- Employment Advocate v Williamson [2001] FCA 1164