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District Court 24 October 2023

R v AA

[2023] NSWDC 450

Sexual offences
CRIME SEXUAL INTERCOURSE WITHOUT CONSENT EVIDENCE EXCLUSION OF EVIDENCE OF PRETEXT CALL

Citation: [2023] NSWDC 450
Court: District Court of New South Wales
Date: 24 October 2023
Judge(s): Bennett SC DCJ

Background

The accused (referred to as "AA") faced trial on one count of sexual intercourse without consent and two counts of intentional strangulation without consent, alleged to have occurred on 15 May 2021 at the complainant's home in Paddington. The complainant and the accused had been in a romantic relationship since late 2020.

The Crown case was that sexual intercourse initially began with consent, but the accused became increasingly violent (scratching, hair pulling, and choking the complainant on two occasions). The complainant said "no" and "stop" during the encounter, but the accused continued. The Crown also alleged that the accused pressured the complainant to remove the condom, to which she eventually relented after repeated requests.

Before the jury was empanelled, the defence raised pre-trial objections to the admissibility of certain evidence. The critical disputed evidence was a "pretext call": a recorded telephone conversation between the complainant and the accused that was arranged and scripted with the assistance of police and a friend. The Court's ruling to exclude that evidence prompted the Crown to consider an interlocutory appeal. Ultimately, the Director of Public Prosecutions decided not to appeal, and the proceedings were discontinued.

  • Whether a pretext call made by the complainant to the accused, prepared with a script drafted in collaboration with police and a friend, should be excluded under the Evidence Act 1995 (NSW).
  • The applicable principles governing the admissibility of pretext calls, including considerations of reliability, unfair prejudice under s 137, and the discretionary exclusion under s 135 of the Evidence Act.
  • Whether the scripted nature of the call and the manner in which it was arranged rendered the evidence unfairly prejudicial or misleading.

Decision

The judgment text as published is truncated and does not reproduce the full reasoning in detail. However, the outcome is clear: Bennett SC DCJ ruled to exclude the pretext call evidence. The Court's decision was announced on 23 October 2023, with written reasons to follow.

The decision appears to have turned on the circumstances surrounding how the pretext call was orchestrated. The call was not a spontaneous conversation. It was prepared with a script developed by the complainant, a friend (Benjamin Lapping, who was required for cross-examination on the voir dire about his role in creating the script), and police. Courts have long recognised that pretext calls can be admissible, but their probative value depends heavily on the circumstances, and scripted or coached calls attract closer scrutiny for reliability and potential to mislead a jury.

The Court evidently concluded that the prejudicial effect of admitting the pretext call outweighed its probative value, or that its admission would be unfairly prejudicial to the accused. The ruling was significant enough to the Crown's case that, once the Director of Public Prosecutions decided not to pursue an interlocutory appeal under s 5F of the Criminal Appeal Act 1912, the prosecution was discontinued entirely.

The accused's counsel foreshadowed a potential costs application, though that matter remained subject to further instructions at the time of judgment.

Orders Made

  • The pretext call evidence was excluded from the trial.
  • The Crown discontinued the proceedings following the ruling, after electing not to appeal.
  • A potential costs application by the defence was foreshadowed but not yet determined.

Key Takeaways

  • The District Court held that pretext calls in sexual assault matters are not automatically admissible, and that the circumstances of their creation, particularly where a script was prepared in advance with police involvement, are subject to challenge on the basis that coaching or scripting may undermine probative value and create unfair prejudice.

  • A heavily scripted pretext call carries a heightened risk of exclusion, as the Court scrutinised the manner in which the call was arranged, who participated in drafting the script, and how closely the complainant followed it, suggesting that a more spontaneous call may carry greater evidentiary weight.

  • Under s 137 of the Evidence Act 1995 (NSW), the probative value of the pretext call was weighed against the danger of unfair prejudice to the accused, with third-party involvement in the preparation of the call identified as a factor capable of compromising its reliability.

  • The discontinuation of proceedings following the exclusion of the pretext call illustrated that such evidence can be so central to a prosecution's case that its exclusion effectively ends the proceedings, underscoring the significance of the admissibility ruling to the viability of the case as a whole.

  • Detailed documentation of the process for arranging the pretext call, including the involvement of the complainant's friends in scripting and the degree of police direction, was treated as directly relevant to the admissibility challenge by Bennett SC DCJ.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 135, 137
- Crimes Act 1900 (NSW), ss 37(1A), 61I
- Criminal Appeal Act 1912 (NSW), s 5F

Cases:
- IMM v Regina [2016] HCA 14
- John Nan Truong (1996) 86 A Crim R 188
- Nguyen v Regina [2020] HCA 23
- Pavitt v Regina [2007] NSWCCA 88
- Regina v CS [2019] NSWDC 857
- Regina v DRF [2015] NSWCCA 181
- Regina v Garry James Rooke (NSW Court of Criminal Appeal, 2 September 1997)
- Regina v Lieske [2006] ACTSC 97