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District Court 10 May 2024

R v DJL

[2024] NSWDC 165

Sexual offences
EVIDENCE VAGINAL INTERCOURSE COMMENCED TO OCCUR WHETHER EVIDENCE RELEVANT WHETHER EVIDENCE SHOULD BE EXCLUDED

Citation: R v DJL [2024] NSWDC 165
Court: District Court of New South Wales
Date: 10 May 2024
Judge: Abadee DCJ

Background

The accused faces an indictment of serial sexual offences allegedly committed against his stepdaughter between 19 September 2001 and 20 September 2008, when she was aged between 9 and 12. The charges include a primary count of maintaining an unlawful sexual relationship, with alternative counts alleging digital penetration, penile-vaginal intercourse, cunnilingus, and other sexual acts. The accused pleaded not guilty on arraignment in February 2024, and the trial by jury is scheduled for April 2025.

In May 2020, and acting pursuant to a surveillance device warrant issued by the Supreme Court, the complainant made a series of recorded pretext telephone calls to the accused. Those calls produced admissions. The accused applied for a pre-trial ruling that the recordings be excluded from evidence.

Separately, the Crown sought a pre-trial ruling permitting evidence that the complainant had described herself as a virgin in her witness statement as a temporal reference for when penile-vaginal intercourse began. The accused contested the admissibility of that evidence as well.

  • Whether the complainant was acting as an "agent of the State" when she made the pretext calls, such that the admissions were relevantly influenced by police conduct
  • Whether the admissions were obtained by oppressive conduct or in circumstances making them unreliable, engaging section 84 of the Evidence Act 1995 (NSW)
  • Whether the admissions were improperly obtained under section 138, and, if so, whether the desirability of admitting them outweighed the undesirability
  • Whether the probative value of the admissions was outweighed by the danger of unfair prejudice under section 137
  • Whether it would be unfair to admit the admissions under section 90, having regard to the circumstances in which they were made
  • Whether the complainant's reference to being a virgin constituted admissible evidence of sexual reputation under section 294CB of the Criminal Procedure Act 1986 (NSW), and whether its probative value was outweighed by any danger of unfair prejudice

Decision

Pretext phone call recordings: section 84

Abadee DCJ rejected the argument that the admissions were made in circumstances that influenced their making through oppression or that rendered them unreliable. The court examined the briefing documents read to the complainant before each call, which set out instructions including that she was not to fabricate or lead the accused. His Honour found those instructions were designed to preserve the integrity and reliability of any admissions made, not to improperly influence the accused. The section 84 application was dismissed.

Whether the complainant was an agent of the State

The court considered the applicable test, including the Canadian authority of R v Broyles and the domestic framework, and concluded that the complainant was not acting as an agent of the State in the relevant sense. While police organised and monitored the calls, the complainant had a personal motivation to confront the accused about the alleged offending. The nature of the relationship between the complainant and police, and the instructions she received, did not transform her into an instrument of the State for the purposes of the applicable provisions.

Sections 137, 138, and 90

The court was not satisfied that the admissions were improperly obtained within the meaning of section 138. Even if any impropriety were established, his Honour found the balance would favour admission, given the seriousness of the offending, the public interest in the prosecution of child sexual abuse, and the fact that the warrant had been lawfully issued and its validity was not challenged. Under section 137, the court was not persuaded that the probative value of the admissions was outweighed by the danger of unfair prejudice. The section 90 discretion to exclude on fairness grounds was also not exercised in the accused's favour, the court finding no sufficient basis to conclude it would be unfair to admit the evidence. All four exclusionary applications were dismissed and the recordings were ruled admissible.

Sexual reputation evidence

On the Crown's application, the court held that the complainant's reference to being a virgin was not evidence of sexual reputation in the sense engaged by section 294CB(2)-(4) of the Criminal Procedure Act. Rather, it was a temporal marker, identifying when the alleged penile-vaginal intercourse began. The court found the evidence was relevant under section 55 of the Evidence Act, capable of proving or reinforcing that the alleged offending occurred. The danger of unfair prejudice was assessed as slight and did not outweigh the probative value. The Crown was permitted to rely on that evidence if the complainant gave it at trial.

Orders Made

• On the contingency that this evidence may be given by the complainant, the Crown is allowed to rely upon it.

Key Takeaways

  • A complainant who makes pretext calls pursuant to a lawfully issued surveillance device warrant is not automatically an "agent of the State"; the court will examine whether the complainant had an independent personal motivation and whether police conduct relevantly influenced the accused's admissions.
  • Briefing documents instructing a complainant not to fabricate or lead an accused during pretext calls can support a finding that admissions were not obtained in oppressive or unreliable circumstances for the purposes of section 84 of the Evidence Act 1995 (NSW).
  • Under sections 137 and 138, the seriousness of alleged child sexual abuse offending and the lawful basis for obtaining recordings are relevant considerations in any balancing exercise concerning improperly obtained or prejudicial evidence.
  • The District Court distinguished between evidence of sexual reputation (regulated by section 294CB of the Criminal Procedure Act 1986) and evidence that incidentally touches on sexual experience when used as a temporal reference for the commencement of alleged offending; the latter category may remain admissible.
  • Pre-trial rulings on admissibility under section 192A of the Evidence Act allow the court to resolve contested evidentiary questions before trial, reducing uncertainty for all parties in complex criminal proceedings.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 294CB(2)-(4)
- Evidence Act 1995 (NSW), ss 55, 84, 90, 137, 138, 189, 192A

Cases
- Aytugrul v The Queen (2012) 247 CLR 170
- Deacon v The Queen (2019) 282 A Crim R 303
- Deputy Federal Commissioner of Taxation v Dick (2007) 64 ACSR 61
- Douglass v R [2020] NSWCCA 284
- Em v The Queen (2007) 232 CLR 67
- Fantakis v R [2023] NSWCA 3
- Gahani v The Queen (2022) 370 FLR 485
- GN v R [2024] NSWCCA 39
- Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299
- IMM v The Queen (2016) 257 CLR 300
- Kadir v The Queen (2020) 267 CLR 109
- Lyon (a Pseudonym) v The Queen [2019] VSCA 251
- Mann v R [2023] NSWCCA 256
- Parker v Comptroller-General of Customs (2009) 83 ALJR 494
- Pavitt v The Queen (2007) 169 A Crim R 452
- Poniris v R [2014] NSWCCA 100
- R v Bauer (2018) 266 CLR 56
- R v Broyles [1991] 3 SCR 595
- R v Burton [2013] NSWCCA 335
- R v CS [2019] NSWDC 875