AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 20 September 2019

R v CS

[2019] NSWDC 875

Sexual offences
CRIMINAL LAW JUDGMENT APPLICATION TO EXCLUDE EVIDENCE PRETEXT PHONE CALL SURVEILLANCE DEVICE WARRANT OPPRESSIVE CONDUCT

Citation: R v CS [2019] NSWDC 875
Court: District Court of New South Wales
Date: 20 September 2019
Judge: Judge W Hunt

Background

The accused faced three counts of sexual intercourse with a child under the age of ten years, contrary to s 66A of the Crimes Act 1900 (NSW), arising from alleged conduct between February and April 2000. The complainant first disclosed the allegations to a friend in 2010, and made a formal statement to police in February 2015. Police subsequently obtained a Surveillance Devices Warrant (SDW) in September 2015.

Acting under the SDW, police arranged for the complainant to make covert "pretext calls" to the accused. Two conversations were recorded: a telephone call on 13 October 2015, and an in-person meeting on 20 October 2015 during which the complainant wore a recording device. The prosecution sought to rely on these recordings, and in particular on statements made by the accused during them, as admissions at trial.

The accused applied on a voir dire (a hearing to determine the admissibility of evidence before trial) for both recordings to be excluded. Significant concerns arose during the hearing about the complainant's conduct in making the calls, the accuracy of police records relating to the SDW, and the methods used to elicit statements from the accused.

  • Whether the recordings should be excluded under s 84 of the Evidence Act 1995 (NSW), on the basis that the admissions were obtained through oppressive or coercive conduct
  • Whether the recordings should be excluded under s 138, on the basis that admissions were obtained as a consequence of impropriety, including falsehoods told by the complainant
  • Whether the recordings should be excluded under s 90, on the basis that it would be unfair to the accused to allow the admissions into evidence having regard to the circumstances in which they were obtained
  • Whether the recordings should be excluded under s 137, on the basis that the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused

Decision

The Crown ultimately did not press for admission of the first recording (13 October 2015), conceding it should not be placed before the jury, and proposed that the accused's denials in that conversation be treated as agreed facts. The contested hearing therefore focused primarily on the second recording (20 October 2015), though the Court examined all relevant circumstances in reaching its conclusions.

On the s 84 (oppression) and s 138 (impropriety) grounds, the Court found the complainant had engaged in coercive behaviour and had made false and misleading statements to the accused with the purpose of inducing admissions. The Court treated the complainant as an agent of the State for these purposes, given she was acting under police direction pursuant to the SDW. Police had also failed to maintain proper records of SDW-related activities, and there were unexplained activations of the surveillance device. These matters, taken together, supported a finding of impropriety.

On the s 90 (unfairness) ground, the Court found it would be unfair to admit the evidence. The complainant had employed emotionally persuasive techniques and deliberate deception to elicit responses, and the accused's right to silence had effectively been subverted by the operation. The Court considered it would be impossible at trial to quarantine the accused's statements from the surrounding artifice employed by the complainant.

On the s 137 (unfair prejudice) ground, the Court found that the probative value of the recordings was outweighed by the danger of unfair prejudice. Many of the complainant's representations in the recordings would not otherwise have been admissible as evidence. The Court assessed a real risk that a jury would impermissibly use those representations, including admitted falsehoods, to find disputed facts in favour of the prosecution. The Court also noted that jury directions alone were unlikely to be sufficient to remedy this danger, and excluded both recordings on this basis.

Orders Made

• Refuse to admit evidence of the admissions of the accused pursuant to s 90 of the Evidence Act
• Refuse to admit evidence of the covertly recorded conversations of 13 and 20 October 2015 pursuant to s 137 of the Evidence Act

Key Takeaways

  • Where a complainant acts under police direction pursuant to a Surveillance Devices Warrant, the District Court treated that complainant as an agent of the State, with the result that her conduct in eliciting admissions was attributable to police for the purposes of ss 84 and 138 of the Evidence Act 1995 (NSW).
  • Covert pretext operations involving deliberate deception are not automatically unlawful, but the methods used and the surrounding circumstances will be closely scrutinised when an accused challenges the admissibility of resulting admissions.
  • Under s 137, the probative value of admission evidence may be outweighed by the danger of unfair prejudice where the admissions are inextricably intertwined with the complainant's false and emotionally manipulative statements, many of which would not independently have been admissible.
  • Failures by police to maintain proper records pursuant to a Surveillance Devices Warrant, including unexplained gaps in duty book and COPS event entries, were treated as relevant impropriety in the s 138 analysis.
  • Jury directions were assessed as insufficient to remedy the risk of unfair prejudice arising from the admission of contested recordings, reinforcing that carefully directed juries are not a universal cure for evidentiary unfairness in cases involving covertly obtained admissions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A
- Evidence Act 1995 (NSW), ss 81, 84, 85, 90, 137, 138
- Surveillance Devices Act 2007 (NSW), s 44

Cases
- Christie v Leachinsky [1947] AC 573
- DRF v R [2015] NSWCCA 181
- DSJ v R and NS v R [2012] NSWCCA 9
- Duke v The Queen (1989) 180 CLR 508
- EM v The Queen (2007) 232 CLR 67
- Employment Advocate v Williamson (2001) 111 FCR 20
- Juric (2002) 129 A Crim R 408
- Patel v The Queen (2012) 247 CLR 531
- Pavic v R (1997) 192 CLR 159
- Pavitt v R (2007) 169 A Crim R 452
- Pfennig v The Queen (1995) 182 CLR 461
- R v Broyles [1991] 3 SCR 595
- R v Burton [2013] NSWCCA 335
- R v Dewhirst [2001] VSC 172; 122 A Crim R 403
- R v GH (2000) 105 FCR 419