Citation: R v SE [2016] NSWDC 21
Court: District Court of New South Wales
Date: 10 February 2016
Judge(s): Judge S Norrish QC
Background
The accused was arraigned on two counts arising from alleged offences committed between September and October 1992 at Young, when the complainant was approximately ten years old. The Crown alleged that the accused, a relative by marriage, entered the complainant's bedroom and digitally penetrated her vagina, then touched her thigh and kissed her. The complainant made a statement to police in December 2011, nearly twenty years after the alleged events.
Following that statement, police obtained a warrant authorising the recording of telephone conversations between the complainant and the accused. Two such conversations took place on 26 and 27 August 2013, described as "pretext conversations" (that is, conversations in which the complainant spoke to the accused while being recorded, without the accused knowing). The accused was subsequently interviewed by police in March 2014, during which the recordings were played to him and he was asked to respond.
Before the Crown opened its case at trial, a voir dire was conducted to determine whether the two recorded conversations and their transcripts were admissible in evidence. Defence counsel objected on the basis that the accused's representations in the conversations were ambiguous and incapable of constituting relevant admissions.
Legal Issues
- Whether the accused's representations in the pretext conversations constituted "admissions" within the meaning of the Dictionary to the Evidence Act 1995.
- Whether the representations were relevant under section 55 of the Evidence Act 1995 and admissible under Part 3.4 as exceptions to the hearsay rule.
- Whether the probative value of the evidence was outweighed by the danger of unfair prejudice under section 137 of the Evidence Act 1995, such that the evidence must be excluded.
- Whether any portions of the complainant's own statements within the recordings required editing before the conversations could be tendered.
Decision
Issue 1: Whether the representations constituted admissions and were relevant
The court rejected the submission that the accused's statements in the pretext conversations were ambiguous or equivocal. Having regard to the definition of "admission" in the Dictionary to the Evidence Act 1995, the court found that the relevant representations were statements made against the interests of the accused and were capable of supporting the Crown case in relation to both counts (at [36]-[39]). The court found that any apparent lack of particularity in the complainant's questions during the conversations was resolved by what the accused specifically admitted when responding to police in his recorded interview (at [40]).
Issue 2: Admissibility under Part 3.4 of the Evidence Act 1995
The court held that the pretext conversation evidence was relevant within the meaning of section 55 and admissible as an exception to the hearsay rule under Part 3.4 of the Evidence Act 1995 (at [42]). No issues of voluntariness or unfairness under section 90 were raised or argued by the defence. The court characterised any alleged ambiguities as going to the weight of the evidence, not to its relevance or probative value, consistent with the approach in cases such as R v Shamouil, R v XY, and DJS v R (at [41]).
Issue 3: Section 137 and unfair prejudice
Considering the section 137 balancing exercise, the court found that the evidence carried significant probative value: it was not in dispute that the accused had in fact made the relevant representations, so objective reliability was not in question (at [43]). The court accepted that there was some risk of the jury misusing the evidence but concluded that this risk could be adequately addressed through appropriate jury directions (at [44]-[45]). Specifically, the jury would be directed that the admissions do not constitute confessions to digital penetration or indecent assault, but may be considered alongside the other evidence, including the accused's exculpatory explanations given during his police interview (at [45]).
Issue 4: Potential editing of the recordings
The court flagged, without reaching a concluded view, that certain representations made by the complainant during the conversations might warrant deletion before the recordings were tendered (at [46]-[47]). That question was left for further submissions at an appropriate time, and the recordings were admitted subject to any such editing (at [48]).
Orders Made
- Recording admitted (subject to any further discussion about editing).
Key Takeaways
- The District Court confirmed that representations made by an accused in a pretext telephone conversation can constitute "admissions" under the Evidence Act 1995 Dictionary and be admitted under Part 3.4 as exceptions to the hearsay rule, even where the accused later offers explanations in a police interview (at [39], [42]).
- Alleged ambiguity or equivocality in an accused's statements is a matter going to the weight of the evidence, not its relevance or probative value, and does not of itself provide a basis for exclusion (at [41]).
- Under section 137, where the objective fact of the accused's representations is undisputed, concerns about reliability (in the sense of truthfulness) are for the jury to assess; the potential for jury misuse of admission evidence can be managed through careful directions rather than exclusion (at [43]-[45]).
- Admissions established through pretext conversations need not amount to full confessions to be admissible; partial acknowledgments capable of supporting other Crown evidence are sufficient to satisfy the relevance threshold (at [44]-[45]).
- The court expressed strong criticism of the delay of approximately two and a half years between the complainant's police statement in late 2011 and the accused's interview in March 2014, describing the investigative delay as "scandalous" and a "blight upon the criminal justice system" (at [4]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- DJS v R [2010] NSWCCA 200
- R v Shamouil [2006] NSWCCA 112
- R v XY [2013] NSWCCA 121