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District Court 11 November 2019

R v Beretov

[2019] NSWDC 774

Sexual offences
EVIDENCE ADMISSIONS CRIMINAL PROCEEDINGS SILENCE IN RESPONSE TO ACCUSATION NO CONTRADICTORY RESPONSE TO ACCUSATION FAILURE TO ASSERT INNOCENCE

Citation: R v Beretov [2019] NSWDC 774
Court: District Court of New South Wales
Date: 11 November 2019
Judge(s): Haesler SC DCJ

Background

The accused faced seven counts of historical child sexual offences alleged to have occurred between 1980 and 1985, when the complainant was aged 11 to 15. The counts included acts of indecency and carnal knowledge under the Crimes Act 1900 as it then stood. The prosecution's case rested primarily on the complainant's own evidence, as she was the only witness to the alleged abuse, supplemented by evidence from persons to whom she had complained.

In 2018, police arranged a "pretext call," a covertly but lawfully recorded telephone conversation in which the complainant confronted the accused with an accusation of sexual abuse that had allegedly occurred more than 30 years earlier. The prosecution sought to tender a transcript and recording of that call at trial, arguing the accused's response constituted an implied admission.

Before jury empanelment, the defence objected to the tender of the pretext call. His Honour heard argument and rejected the evidence, reserving reasons so the trial could proceed. This judgment sets out those reasons.

Legal Issues

  • Whether the pretext call recording was relevant within the meaning of section 55 of the Evidence Act 1995 (NSW), specifically whether the accused's silence and failure to deny the accusation could rationally affect the assessment of a fact in issue.
  • Whether, even if relevant, the evidence should be excluded under section 90 of the Evidence Act, having regard to the circumstances in which the alleged admission was made.
  • Whether the evidence should be excluded under section 135 of the Evidence Act because its probative value was substantially outweighed by the danger it was misleading or unfairly prejudicial.
  • Whether the evidence should be excluded under section 137 of the Evidence Act because its probative value was outweighed by the danger of unfair prejudice.
  • Whether a jury direction could adequately cure any prejudice arising from the call.

Decision

Issue 1: Relevance

The court held that the pretext call was not relevant and must be excluded on that basis alone under section 56(2) of the Evidence Act (at [41]). The accused did not, by his demeanour or conduct, acknowledge the truth of the complainant's accusation, nor did he acknowledge anything about it (at [41]). It was not fairly open to conclude that his silence was a tacit admission of guilt, and his response contained no implied representation of agreement with the facts asserted (at [42]).

The prosecution's implicit premise, that no innocent man would have responded as the accused did, was not established by the call or its surrounding circumstances. That premise amounted to a presumption of guilt rather than probative reasoning (at [45]-[46]). No rational inference arose from the silence because the circumstances made any such inference purely speculative (at [44]).

Issue 2: Ambiguity and Contextual Disadvantage

The court found the pretext call was "so replete with ambiguity" that drawing a conclusion of tacit admission would be unfair (at [42]-[43]). The accused had arranged an ordinary social call with his wife present and had no reason to expect a confrontation about events allegedly occurring 30 years earlier. Those circumstances placed him at a fundamental disadvantage, rendering any attempt to derive meaning from his response unreliable (at [43]).

Issue 3: Section 90 Exclusion

Even if some potential relevance were accepted, the court held the evidence should be excluded under section 90, which directs attention to the circumstances of an alleged admission and whether its use would be unfair. The unexpected nature of the accusation, delivered 30 years after the alleged events with the accused's wife present, created fundamental unfairness distinct from cases where an accused is caught speaking freely about recent events (at [47]-[48]).

Issue 4: Sections 135 and 137 Exclusion

The court further held that the evidence would be excluded under sections 137 and 135. Rather than presenting the jury with a choice between competing inferences, the call offered a range of entirely speculative possibilities, with the prosecution simply proposing its preferred interpretation. Any probative value was outweighed by the danger of unfair prejudice, which a jury direction could not adequately remedy once the recording had been heard (at [49]-[50]).

Issue 5: Jury Directions

The court rejected the proposition that a proper jury direction could cure the prejudice. His Honour expressed reservations about directing juries to apply "common sense" to silence-based reasoning, noting that such directions are inherently vague, carry implicit suggestions about the correct conclusion, and have historically reflected stereotypical assumptions that legislative reform has since corrected (at [32]-[37]).

Orders Made

  • The pretext call cannot be admitted in evidence in the trial.

Key Takeaways

  • Silence in the face of an accusation does not automatically constitute a relevant implied admission. The District Court found that the accused's failure to respond to a confrontational pretext call was not capable of rationally affecting the probability of any fact in issue where the circumstances rendered all possible inferences purely speculative (at [41]-[44]).

  • The circumstances surrounding an alleged admission are central to both relevance and the section 90 discretion. Where an accused is unexpectedly confronted with a 30-year-old accusation, in a social setting, with a family member present, those conditions can independently warrant exclusion by undermining any reliable meaning to be drawn from the response (at [43], [47]-[48]).

  • Under section 137 of the Evidence Act, the court confirmed that a prosecution relying on an implicit presumption of guilt, rather than genuinely competing rational inferences, cannot establish sufficient probative value to outweigh the danger of unfair prejudice (at [45]-[46], [49]).

  • Judicial directions invoking "common sense" in the context of silence were treated with caution. The court observed that such directions may be too vague to assist juries effectively and can carry an implicit suggestion that deviating from the proposed inference would be unreasonable (at [32]-[34]).

  • A proper jury direction is not a universal cure for the prejudicial effect of ambiguous silence evidence. Where a recording, once heard, cannot realistically be put from the jury's mind, the availability of a direction does not overcome the section 137 bar (at [49]-[50]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Criminal Procedure Act 1988
- Evidence Act 1995

Cases
- Bauer v The Queen [2018] HCA 14
- Christian v R [2012] NSWCCA 34
- EM v The Queen (2007) 233 CLR 67
- Festa v The Queen (2001) 208 CLR 593
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 16
- Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37
- Pfennig v the Queen (1995) 182 CLR 461; [1995] HCA 7
- R v Burton [2013] NSWCCA 335
- R v Christie [1914] AC 545
- R v Freeman, unrep, 18/12/86, NSWCCA
- R v Rose [2002] NSWCCA 455
- R v Ryan [2013] NSWCCA 316
- The Queen v Dickman [2017] HCA 24; (2017) 261 HCA 601