AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 9 October 2017

R v Spiteri-Ahern; R v Barber; R v Zraika (No 10)

[2017] NSWSC 1380

Domestic & family violencePublic order & justice offences
EVIDENCE ADMISSIONS

Citation: R v Spiteri-Ahern; R v Barber; R v Zraika (No 10) [2017] NSWSC 1380
Court: Supreme Court of New South Wales
Date: 9 October 2017
Judge(s): Rothman J

Background

Three accused were being tried together in a judge-alone trial. The first accused faced a murder charge on the basis of joint criminal enterprise; the second accused (referred to here as the accessory accused) faced a charge of being an accessory before the fact; and the third accused (referred to as the concealment accused) faced the lesser charge of concealing a serious indictable offence. The accessory accused and the concealment accused were partners at the relevant time.

The Crown sought to rely on conversations captured through listening devices and telephone intercepts between the two partners. The Crown's position was that those conversations contained express or implied admissions by the accessory accused: admissions going to her role in setting up the deceased, her movements on the day of the murder, and, by contrast with what she told police, a consciousness of guilt.

The accessory accused objected to the use of that material against her. The objection rested on section 84 of the Evidence Act 1995, which excludes admissions influenced by violence, oppressive conduct, or threats. The evidence on the record already showed that the concealment accused had perpetrated domestic violence against the accessory accused, including during at least one of the recorded conversations.

Legal Issues

  • Whether section 84 of the Evidence Act 1995 is limited to improper conduct carried out for the purpose of obtaining an admission, or whether it extends to improper conduct of any kind that influences the making or content of an admission.
  • Whether the Crown had discharged its onus of proving that the admissions were not influenced by violence or its threat, given the domestic violence that existed in the relationship.
  • Whether the listening device and telephone intercept evidence was admissible against the accessory accused.

Decision

Issue 1: The scope of section 84 of the Evidence Act

Rothman J rejected the Crown's submission that section 84 applies only where someone engages in improper conduct for the purpose of obtaining an admission. His Honour examined the text of the provision and observed that its operative language focuses on the effect on the person making the admission, expressed in the passive voice, not on the purpose of the person engaging in the conduct (at [20]). Section 84 does not require that the improper conduct come from a person in authority or from someone interrogating the maker of the admission (at [21]-[22]). The provision is one of those that protects the right to silence, and its reach is not confined to a questioning context (at [26]-[27]).

His Honour distinguished the ACT Supreme Court decision in R v JF, noting that in that case there was no issue about whether the perpetrator of the violence intended to influence the admission. Refshauge J was not addressing the question the Crown now raised, and a passing turn of phrase in reasons for judgment cannot be treated as a considered ruling on an issue not argued (at [15]-[16]). The court also found that the ALRC materials, while consistent with the Crown's position, did not exclude the broader reading (at [17]-[18]).

Issue 2: The factual question of influence

Having construed section 84 broadly, the court turned to the facts. The Crown bore the onus of proving that the admissions were not made, and their content was not shaped, as a result of improper conduct (at [28]). Rothman J confirmed that in a continuing relationship of domestic violence, the absence of violence on one particular occasion does not of itself mean an admission made then was unaffected by the ongoing threat (at [32]-[33]). "Influence" requires the conduct to be a cause of the making or content of the admission but it need not be the dominant cause (at [38]).

After listening to the full recordings in evidence, including the exchange during which violence was being perpetrated, the court was satisfied as a matter of fact that the admissions, if any, were not made as a result of improper conduct and their content was not shaped by it (at [39]-[40]). The Crown discharged its onus (at [40]).

Issue 3: Admissibility and the role of the tribunal of fact

As a consequence of that factual finding, the evidence was held admissible against the accessory accused (at [41]). The court emphasised that whether the recorded statements actually amount to an admission, and the extent of any such admission, remains a question for the tribunal of fact. Even in a judge-alone trial, that ultimate question cannot be collapsed into the admissibility ruling (at [41]).

Orders Made

  • Evidence of admissions admitted against the accessory accused (Ms Barber).

Key Takeaways

  • Section 84 of the Evidence Act 1995 is not confined to improper conduct intended to obtain an admission. The provision extends to any violence, oppression, or threats that influence the making or content of an admission, regardless of the purpose of the person who engaged in that conduct (at [27]).

  • Under section 84, the improper conduct need not come from a person in authority or from someone engaged in questioning. The section's focus is on the effect of the conduct on the maker of the admission, not on the role or motive of the perpetrator (at [21]-[22]).

  • In a continuing domestic violence relationship, a court assessing section 84 cannot treat each conversation in isolation. The absence of overt violence during a particular recorded conversation does not automatically mean the admission made at that time was free from the influence of ongoing violence or its threat (at [32]-[33]).

  • "Influence" for the purposes of section 84 requires the impugned conduct to be a cause of the making or content of the admission, but it need not be the predominant or sole cause (at [38]).

  • An admissibility ruling under section 84 does not determine whether a statement is in fact an admission or its true extent. Those questions remain for the tribunal of fact to resolve, and that process cannot be short-circuited simply because the trial is heard by a judge sitting alone (at [41]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995

Cases
- Australian Competition and Consumer Commission v Pratt (No 3) [2009] FCA 407 Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Douglas [2000] NSWCCA 275 R v JF [2009] ACTSC 104 R v Lodhi (2006) 199 FLR 342; [2006] NSWSC 648