Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: R v Burton [2013] NSWCCA 335
• Hearing dates: 31 October 2013
• Decision date: 20 December 2013
• Before: Simpson J at [1]; R A Hulme J at [219]; Barr AJ at [220]

Decision

(i) Crown appeal allowed;

(ii) The ruling that evidence of the telephone conversation between the complainant and the respondent on 12 June 2012 be excluded is vacated;

(iii) The ruling that evidence of the complainant's prior sexual experience be admitted pursuant to s 293(4) of the Criminal Procedure Act 1986 is vacated.

• Catchwords: CRIMINAL LAW - Crown appeal - Criminal Appeal Act 1912, s 5F(3A) - accused charged with sexual intercourse without consent - Crimes Act 1900, s 61I - pre-trial evidentiary rulings - Criminal Procedure Act 1986, s 293(4)(a) - evidence of complainant's sexual interest in a man other than accused - evidence irrelevant - whether tendency evidence - whether evidence of sexual experience or sexual activity - whether at or about time of commission of offence charged - evidence inadmissible; EVIDENCE - evidence of telephone conversation recorded pursuant to warrant - admissions - Evidence Act, s 90 - whether unfair to admit evidence - whether complainant acting as "agent of the State" - whether unfair derogation of accused's right to exercise free choice to speak or be silent - whether conversation "functional equivalent of an interrogation" - "eliciting behaviour" - whether admissions made voluntarily; EVIDENCE - Evidence Act, s 137 - probative value of evidence - whether existence of alternative explanation relevant to assessment of probative value - facts in issue - Evidence Act s 137 contrasted with Evidence Act s 98 - whether credibility, reliability or weight of evidence relevant to assessment of probative value - Crown appeal allowed
• Legislation Cited: Crimes Act 1900; Criminal Appeal Act 1912; Criminal Procedure Act 1986; Evidence Act 1995; Surveillance Devices Act 2007
• Cases Cited: Cleland v The Queen [1982] HCA 67; 151 CLR 1; DAO v R [2011] NSWCCA 63; 81 NSWLR 568; Doney v The Queen [1990] HCA 51; 171 CLR 207; DSJ v Director of Public Prosecutions (Cth); NS v Director of Public Prosecutions (Cth) [2012] NSWCCA 9; 215 A Crim R 349; Dupas v The Queen [2012] VSCA 328; 218 A Crim R 507; McDermott v The King [1948] HCA 23; 76 CLR 501; R v BD (1997) 94 A Crim R 131; R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296; R v Broyles [1991] 3 SCR 595; R v Carusi (1997) 92 A Crim R 52; R v Christie [1914] AC 545; R v Cook [2004] NSWCCA 52; R v Edelsten (1989) 18 NSWLR 213; R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308; R v Hebert [1990] 2 SCR 151; R v Lansdell (NSWCCA, 22 May 1995, unreported); R v Morgan (1993) NSWLR 543; R v Murray (1987) 11 NSWLR 12; R v Nguyen, John Viet; R v Nguyen, Anthony Si [2010] NSWCCA 97; R v Pavitt [2007] NSWCCA 88; 69 A Crim R 452; R v Powch (1988) 14 NSWLR 136; R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228; R v Singh-Bal (1997) 92 A Crim R 397; R v SJRC [2007] NSWCCA 142; R v Steffan (1993) 30 NSWLR 633; R v Suman Sood [2007] NSWCCA 214; R v XY [2012] NSWCCA 121; R v Yates [2002] NSWCCA 520; R v Zhang [2005] NSWCCA 437; 158 A Crim R 504; Smith v The Queen [2001] HCA 50; 206 CLR 650; The Queen v Swaffield; Pavic v The Queen [1998] HCA 1; 192 CLR 159; Wendo v The Queen [1963] HCA 19; 109 CLR 559
• Category: Principal judgment
• Parties: Regina (Appellant); Brian Sydney Burton (Respondent)
• Representation: Counsel: N Adams SC/J E Davidson (Appellant); H Dhanji SC/I S McLachlan (Respondent); Solicitors: S Kavanagh - Solicitor for Public Prosecutions (Appellant); Mark Ireland (Respondent)
• File Number(s): 2012/188085

Decision under appeal

• Before: Graham ADCJ
• File Number(s): 2012/188085

Judgment

1 SIMPSON J: This appeal, brought by the Director of Public Prosecutions ("the Director"), pursuant to s 5F(3A) of the Criminal Appeal Act 1912, concerns two pre-trial evidentiary rulings, made by Graham ADCJ on 24 and 25 July 2013.

2 The respondent is charged with an offence of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900, allegedly committed on 18 May 2012. The evidentiary rulings in question relate to:

• evidence of a telephone conversation between the complainant and the respondent on 12 June 2012, to be tendered by the Director;

• evidence said to be evidence that the complainant had or may have had sexual experience, or taken part in sexual activity, within the meaning of s 293(3) of the Criminal Procedure Act 1986, proposed to be adduced on behalf of the respondent by way of cross-examination of the complainant.

3 Section 5F of the Criminal Appeal Act 1912 applies, relevantly, to proceedings for the prosecution of offenders on indictment in the District Court. Sub-section (2) is in the following terms:

"The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies."

4 In R v Powch (1988) 14 NSWLR 136 it was held by this Court that s 5F(2) does not extend to rulings on evidence, which are essentially procedural and are not "interlocutory judgments or orders": see also R v Edelsten (1989) 18 NSWLR 213; R v Steffan (1993) 30 NSWLR 633 at 639. But see, further, R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296, where it was held that, in some cases, rulings on evidence are of such a character as to constitute judgments or orders, a possibility also recognised in Steffan.

5 In order to overcome perceived injustice, or potential injustice, to the Crown caused by erroneous adverse rulings on evidence, in 2003 s 5F of the Criminal Appeal Act was amended by the insertion of sub-s (3A), which is in the following terms:

"The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case."

The concluding words of the sub-section create a jurisdictional barrier: the Crown's right of appeal with respect to a "decision or ruling on the admissibility of evidence" is limited to the circumstance where "the decision or ruling eliminates or substantially weakens the prosecution's case": R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228.

6 By the presentation of his Notice of Appeal invoking only sub-s (3A) of s 5F, the Director acknowledges that neither of the challenged rulings is "an interlocutory judgment or order" within s 5F(2), and that each is a "ruling on the admissibility of evidence" within s 5F(3A). On appeal he did not depart from that position. In respect of each ruling, he is required to pass the jurisdictional barrier.

7 The Director relied upon the decision of this Court in R v Nguyen, John Viet; R v Nguyen, Anthony Si [2010] NSWCCA 97 (per Hodgson JA, with whom Latham and Johnson JJ agreed) for the proposition that in cases of multiple challenges to evidentiary rulings brought by the Director under s 5F(3A), for the purpose of applying the jurisdictional test, this Court may have regard to the cumulative effect of any of the rulings that are held to be erroneous.

8 Senior counsel for the respondent directly questioned the correctness of that ruling, acknowledging that, if Nguyen is to be reconsidered by this Court, conventional protocol would call for a Court comprising five judges to be convened. Since the issue only arose contingently, no steps were taken in that regard. It was proposed that the same course be taken as was taken in DAO v R [2011] NSWCCA 63; 81 NSWLR 568 - where, when a similar issue presented during the course of the hearing, two additional judges joined the Court, but, with the agreement of the parties, considered the matter on the papers, without the need for further oral hearing or argument. In this case, senior counsel for the respondent was unable to agree to that course. The question of the composition of the Court was left in abeyance, to be dealt with if and when it became necessary to reconsider the correctness of Nguyen.

9 The Director's notice of appeal is in the following terms:

"I ...

HEREBY GIVE NOTICE that I desire to appeal to the Court of Criminal Appeal against the decisions or rulings set out below made by his Honour Acting Judge Graham in the District Court on 24 and 25 July 2013,

ON THE GROUND that his Honour erred in excluding the evidence of a recorded telephone call between the accused and [the complainant], and

ON THE GROUND that his Honour was in error in permitting evidence of prior sexual experience pursuant to s 293(4)(a) NSW Criminal Procedure Act 1986

DECISIONS OR RULINGS APPEALED AGAINST

His Honour's exclusion of a recorded telephone call between the [respondent] and [the complainant] pursuant to s 90 and s 137 of the NSW Evidence Act 1995.

His Honour's permitting of evidence of prior sexual experience pursuant to s 293(4)(a) NSW Criminal Procedure Act 1986

..."

The Crown case

10 What follows is a brief account of the case the Crown proposes to make at trial.

11 The complainant was born in 1979. In 2011, when she was 32 years of age, she worked as an event organiser. In the course of that work she met and became friendly with a man called Patrick McManus. Through Mr McManus the complainant met the respondent, who is a relative of Mr McManus.

12 The respondent was the captain and manager of a luxury commercial charter yacht called Aqua Bay that was moored at Blackwattle Bay in Glebe. He lived on the yacht with his teenage son.

13 Early in 2012 the respondent offered work to the complainant as a stewardess on the Aqua Bay. By February 2012 the complainant was working fulltime on the yacht. The respondent showed a clear sexual interest in the complainant. The complainant rebuffed his advances in clear and unequivocal terms. From March to May 2012 the complainant undertook a small business management course. On 17 May she completed her last assignment for the course. She planned to celebrate the occasion on the Aqua Bay, in the company of the respondent, and she invited Mr McManus. The three consumed champagne on the yacht, and then attended a local Glebe restaurant for dinner. They then travelled to Kings Cross where they went, sequentially, to two bars and two strip clubs, and an "adult shop".

14 At about 2am on the morning of 18 May, the three returned to the Aqua Bay. The respondent invited the complainant to stay overnight on the yacht. She agreed to do so, having ascertained that Mr McManus would also stay overnight. All three sat in a lounge area of the yacht. The complainant fell asleep, the men on either side of her.

15 At some stage during the night Mr McManus left the area to sleep in another part of the yacht. The complainant woke to find the respondent performing cunnilingus on her. The complainant left the yacht, despite attempts by the respondent to have her stay. She drove home.

16 Later that day, she received several text messages from the respondent. Two of the messages concerned proposed arrangements for her to work on the Aqua Bay. The third was an invitation to a dance party on another yacht. The respondent also left two voice messages on the complainant's telephone. In none of the messages did the respondent make any mention of the events on the yacht. Although it is not stated explicitly, it appears that the complainant did not respond to any of the messages, or return the calls.

17 On Saturday, 19 May the complainant had dinner with a former boyfriend, to whom she confided what happened on the yacht. This was the first complaint she had made about the incident. The following day, 20 May, she telephoned Mr McManus and told him what had happened. On 24 May she received another work related text message from the respondent. Again, he made no mention of the incident on the yacht. The complainant did not reply to the message.

18 On 29 May the complainant contacted the North Sydney Sexual Assault Service at the Royal North Shore Hospital and spoke to a counsellor. She described what had happened on the yacht. On 30 May the respondent sent the complainant another text message. It was in the following terms:

"Hi [first name of complainant], would really like to talk to you about what happened. I truly hope it has not affected our friendship and working relationship with each other. Circumstances on the night with the over ingestion of alcohol perhaps led me to believe that we were both looking for the same thing. [First name of complainant] I do sincerely apologise if I have offended you. I have left a couple of messages that you have not responded to so I guess it has. Hopefully we can overcome this as I do value your friendship. Looking forward to your reply, Brian."

19 With the help of a sexual assault counsellor, the complainant reported the matter to police.

20 On 12 June 2012, at the instigation of investigating police, the complainant telephoned the respondent. The conversation that ensued was recorded pursuant to a listening device warrant issued under the Surveillance Devices Act 2007. The transcript of the conversation is as follows:

"Complainant: Hi Brian how are you going?

Respondent: Good, how are you doing?

Complainant: Not too bad ... um, you sent me a text message, a few text messages.

Respondent: Yeah, you been away have ya?

Complainant: Um no, yeah, just busy got a lot of stuff on, yep.

Respondent: Okay.

Complainant: What did you want to talk about?

Respondent: Um I'm back down on Friday if you want to catch up.

Complainant: Right, well, I would prefer to talk on the phone.

Respondent: All right, um, I've got shocking reception where I am, so I will give you a call when I get back down.

Complainant: Alright well, I would prefer to have a chat now, I've just sort of got quite a few things on and I'm actually going away later this week, so I just want to, I would prefer to talk now.

Respondent: Oh, okay um

Complainant: I can hear you fine so reception is not an issue.

Respondent: What's that sorry

Complainant: I said I can hear you fine so reception is not an issue.

Respondent: Oh, okay, alright, um, you have caught me unawares, um basically really I want to apologise, umm, maybe there were some crossed wires there, I'd like to think that we could still be friends and forget about all that

Complainant: You broke that trust, why would you? Why would you do something like that?

Respondent: Um, could I ring you back a little bit later this afternoon, um I'm in the middle of something.

Complainant: I just really, I just really want to find out, why on earth, what made you do that? I just really, I'm just so confused.

Respondent: Yeah, um

Complainant: What compelled you to do something like that? I warned you before, you know, you were one of my closest friends. Brian, you were my mentor, you were a good friend of mine, and you broke that trust.

Respondent: Um, I think it was just signals on the day, [first name of complainant], um um

Complainant: I gave you no signals at all, there was a number of times I told you when we standing on the afterdeck, after a charter or whatever and I just said to you, I said we would never, as much as I like you Brian as a friend that would never ever happen numerous times. And you know, I, I don't understand what part of no you don't get.

Respondent: I apologise [first name of complainant], um, while I was laying there, I don't know whether you were doing anything, asleep or whatever. Your leg, my arm, your leg against my arm, and I don't know, the alcohol

Complainant: I was asleep, I was asleep, you didn't even given me how can you do that? I have to go, I'm so upset, sorry. Sorry." (italics added)

(The Crown asserts that the final statement attributed to the respondent is wrongly transcribed, and should read:

"I apologise ... um, while I was laying there you were, I don't know whether you were doing it in your asleep or whatever ..."

During the hearing of the appeal, the tape recording was played, and senior counsel for the respondent accepted that the Crown's version is correct. As well, the words "numerous times" can be heard in that part of the conversation where the complainant reminded the respondent that she had told him that they would never have a sexual relationship.)

21 So far as the evidence in this appeal goes, that is the evidence on which the Crown will rely at trial.

Other evidentiary material

22 Patrick McManus has made two statements relevant to the proceedings. It is not the Crown's intention to call him as a witness in its case.

23 Mr McManus worked casually on Aqua Bay as a deck hand and relief skipper. In his first (undated) statement he wrote of his association with the complainant, which commenced in about August or September 2011 when he met her at a social function of which she was the coordinator. He said that they developed a friendship and he attended other events which she coordinated. He said that at the end of most of those nights they finished the night having drinks together. On one such occasion they became "intimate".

24 He wrote of other occasions when he and the complainant socialised together, on some of which they engaged sexually, although the relationship was not exclusive.

25 Mr McManus recounted his version of the events of 17-18 May. Relevantly for present purposes, he described the excursion to Kings Cross. He said that, at the first bar the three visited, they had had "a number" of drinks, and that it was the complainant who suggested locating a strip club.

26 He said that at the second bar they attended, the complainant exhibited sexual interest in a man she met there, who had previously been a stranger to her. He did not reciprocate her interest. Mr McManus asserts that the complainant said:

"That was weird, he just wasn't interested."

(This was contained in paragraph 18 of his statement.)

He said that they left the bar, and eventually went to another. The same man was present, this time, with "a couple of hostesses". According to Mr McManus, the complainant pointed out the man, and said:

"Why would he go with them when he could have had me for free?"

(This was contained in paragraph 22 of his statement.)

27 Mr McManus also described an incident that he said took place outside a "gentleman's club". He said that a female out the front invited them in, but that he and the respondent declined. He said that the complainant struck up a conversation with the woman, who they soon discovered was a "working girl", which I take to mean "prostitute". He said that the complainant asked the woman a lot of questions about her business and her rates and the sex industry generally.

28 Mr McManus said that the complainant was "paying attention" to the respondent, and that he (Mr McManus) "wasn't really in the conversation". He formed the impression that the complainant was "interested in" the respondent (sexually).

29 Mr McManus referred to a telephone call from the complainant a few days later. He said that she did not, in that conversation, make any mention of an assault on her by the respondent.

30 In his second statement, made on 22 July 2013, Mr McManus recounted that the respondent had denied the complainant's allegations, and suggested that the complainant had suffered financial loss as a result of a Fashion Week venture that had failed. The clear import is a suggestion that the complainant's allegations against the respondent were made in the hope of obtaining a payment under Victims' Compensation provisions.

The proceedings at first instance

31 The trial was fixed to commence in the District Court on 24 July 2013. On that day, the solicitors representing the respondent notified the Office of the Director that they proposed to seek leave pursuant to s 293 of the Criminal Procedure Act 1986 to cross-examine the complainant on certain identified topics. Section 293 prohibits, subject to exceptions, the admission, in sexual offence prosecutions, of evidence concerning the complainant's sexual history. Its relevant terms are set out below. The topics identified as the subject of the proposed cross-examination were:

"(1) The complainant's relationship with Mr Patrick McManus in terms of:

(a) the nature of their general relationship;

(b) whether or not that relationship involved sexual activity;

(c) was such activity isolated or had it occurred on more than one occasion;

(d) had such activity been followed by the complainant and Mr McManus sleeping overnight together (including the activities on the Aqua Bay on the night it was anchored at Athol Bay);

(e) the complainant's responses to Mr McManus in the days following any such sexual activity.

(2) The complainant's conduct on the evening of 17th May 2012 and the morning of 18th May 2012 in terms of:

(a) her interaction with an unknown male at 'Vegas Bar and Grill' and later at the 'Badabing' strip club and associated comments."

32 The sole basis on which it was sought to adduce this evidence was to lay a foundation for an inference that the complainant had consented to the sexual activities with the respondent.

33 A voir dire was conducted on 24 and 25 July. The issues for determination were:

(i) the admissibility of evidence proposed to be adduced in cross-examination of the complainant of the asserted prior sexual relationship with Mr McManus. The particular import of this evidence was explained as lying in the suggestion that the complainant, after sexual engagement with Mr McManus always, or usually, expressed regret that she had done so. Although no evidence was tendered in this respect, counsel for the respondent said:

"At the moment there is no apparent motive to lie, if I can put it that way, and I'll be as frank as I can, I'm still in two minds as to whether to even go there but there is on my - as indicated to myself and my instructing solicitor in conference last week, that on each and every occasion the complainant would in the days following any sexual encounter express regret, indicate, 'look, it shouldn't have happened. That was unprofessional. We're work colleagues' etcetera etcetera and matters of that nature";

(ii) the admissibility of evidence proposed to be adduced in cross-examination concerning the complainant's sexual interest in the stranger at the Kings Cross venues, and the comments made by her in that respect;

(iii) the admissibility of the evidence of the telephone conversation between the complainant and the respondent on 12 June 2012.

The complainant gave evidence on the voir dire as did Detective Senior Constable Michael Egan-Hurst, the officer in charge of the investigation.

34 The evidence of the complainant and Detective Egan-Hurst on the voir dire was directed only to the admissibility of the recording of the telephone conversation. The call was made as part of the police investigation strategy.

35 The call was initiated by the complainant on a mobile telephone from a room at the premises of Police Marine Area Command at Balmain. Present in the room were the complainant, Detective Egan-Hurst, and another police officer, Caroline Eades (who had taken the statement made by the complainant, and was present as support for her). The conversation was recorded by a device taped to the mobile telephone on which the complainant made the call. The device recorded, but did not amplify, the conversation. The complainant's side of the conversation was audible to the police officers as it proceeded. The respondent's side of the conversation was not. At the conclusion of the conversation Detective Egan-Hurst listened to the recording, and later transcribed it.

36 The complainant gave evidence first. She perceived, as she said repeatedly, that the purpose of the call was:

"To ascertain why [the respondent] did it."

Even when asked directly in cross-examination whether, in discussion with police officers about the proposal to make the call, a hope had been expressed that the respondent would make relevant admissions of criminal conduct, she maintained that:

"I just wanted to know what possessed him to do that."

It was also suggested to her that police officers had prompted or directed her in what to say, but she denied this.

37 In his evidence, Detective Egan-Hurst explained the process by which the surveillance device warrant had been obtained. He acknowledged that the purpose of the call, and of recording it, was to capture any admission that might be made by the respondent. In this respect, he was quite clear, both in his evidence in chief, and in cross-examination, that he believed (because of the pre-existing and ongoing relationship between the complainant and the respondent) that they would, at some stage, be in contact, and that a conversation about the events would take place. His purpose in having the complainant make the call in the manner she did was to ensure that anything the respondent said would be "captured". He accepted that, by the time of the call, he "possibly" had sufficient evidence (in the complainant's statement) to lay a charge against the respondent, but said, in effect, that he wished to strengthen the prosecution case before doing so. He had not spoken to the respondent previously, because he did not wish to alert him to the investigation. He did not consider speaking to the respondent before the call to be an option; he wished to investigate further before speaking to him. While he could have spoken to the respondent earlier, he would have considered that "an error". He acknowledged that the complainant had asked for advice about how to start the conversation (he suggested she ask about the text message of 30 May) but otherwise denied prompting, or making suggestions of topics of conversation to the complainant.

38 He said that he made the decision to charge the respondent after listening to and the transcribing of the recording of the conversation.

39 It is worth noting that no submission was put to Graham ADCJ that he ought not to accept the evidence of either the complainant or Detective Egan-Hurst, and his Honour made no express findings of fact. He made a general observation that there were, in the evidence of the two witnesses some discrepancies "particularly in relation to the inception and execution of the telephone call", and, to the extent of the discrepancies, preferred the evidence of Detective Egan-Hurst. He did not identify the discrepancies, and they do not appear to be of any moment so far as the present issues are concerned. This Court should proceed on the basis that the evidence given by both witnesses was accepted as reliable.

40 The argument on the voir dire was somewhat unstructured. However, some things emerged from it. At an early stage of the voir dire, counsel for the respondent identified the relevance of the evidence of the complainant's interest in the stranger as indicating "signals from the complainant on the evening and what effect that had on the state of mind of the [respondent] at approximately 6am the following morning". Later and more explicitly, he declared that the issue in the trial would be consent. He made no mention of any issue concerning belief by the respondent that the complainant consented to his sexual advances, nor to any lack of knowledge on his part that the complainant was not consenting. Those matters, however, remain as potential issues in the trial.

41 Although Graham ADCJ expressed reservations about whether the evidence fell within s 293(3) of the Criminal Procedure Act both parties approached issues (i) and (ii) (see para [33] above) on the basis that that was the relevant statutory provision, and ultimately, that was the basis on which his Honour determined that the evidence would be admitted. That, in my opinion, was incorrect, for reasons I set out below.

42 In his judgment of 24 July, Graham ADCJ rejected the evidence falling into the first category - that is, the asserted sexual relationship between the complainant and Mr McManus, and her asserted subsequent pattern of behaviour in expressing regret for participation. That evidence is no longer in issue.

43 However, in the same judgment, his Honour granted leave to counsel for the respondent to adduce the evidence of the complainant's conduct at the Kings Cross venues, her sexual interest in the male stranger, and the comments she made concerning him and her apparent willingness to participate in a sexual encounter with him. He did this on the bases, first, that the evidence was relevant, and, second, that it came within one of the exceptions to s 293 of the Criminal Procedure Act.

44 In a judgment delivered on 25 July Graham ADCJ rejected the evidence the Crown proposed to call of the telephone conversation between the complainant and the respondent on 12 June.

45 Each of these rulings is the subject of the Director's Notice of Appeal. It is convenient to deal with the two separate issues in the sequence in which they were decided in the District Court.

46 Having regard to the conclusions I have reached, it is fair to note the circumstances in which his Honour delivered the judgments. 24 July was the day fixed for the commencement of the trial. It was only on that day that notice of the evidentiary issues was given. No doubt a jury panel had been assembled, and was waiting. On that day, his Honour heard the evidence of the complainant, and argument concerning the sexual history evidence. He delivered judgment (presumably ex-tempore) on the same day. On 25 July he heard the evidence of Detective Egan-Hurst and argument on the admissibility of the telephone conversation. Again, he delivered judgment on the same day. There was undoubtedly pressure to dispose of the evidentiary issues in order that the trial could commence. It was only when the Crown prosecutor signalled an intention to challenge the rulings that the trial date was vacated.

(i) The evidence sought to be adduced concerning the complainant's alleged sexual history (judgment 24 July 2013)

47 The evidence in question was the evidence in paragraphs 18 and 22 of Mr McManus' statement (concerning the complainant's apparent sexual interest in the man she met in the Kings Cross bar). The principal basis for his Honour's decision to admit the evidence was that he considered it came within the exception provided by s 293(4)(a) of the Criminal Procedure Act.

48 Section 293 is a complex provision. It applies to proceedings in respect of a prescribed sexual offence (sub-s (1)), of which sexual intercourse without consent is one. Because of the complexity of the section, I will extract only those parts of it which bear upon the present case.

"293(2) Evidence relating to the sexual reputation of the complainant is inadmissible.

(3) Evidence that discloses or implies:

(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or

(b) has or may have taken part or not taken part in any sexual activity,

is inadmissible.

(4) Subsection (3) does not apply:

(a) if the evidence:

(i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and

(ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,

(b) ...

(c) ...

(d) ...

(e) ...

(f) ...

and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

(5) A witness must not be asked:

(a) to give evidence that is inadmissible under subsection (2) or (3), or

(b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.

(6) ...

(7) ...

(8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision."

The reasons given for admitting the evidence

49 I now turn to consider, in some detail, the reasons given by his Honour for his decision to admit the evidence.

50 His Honour considered the evidence of the complainant's interaction with the female at the "gentleman's club" to be:

"... of some relevance in establishing the context and tone of the outlook of the complainant on that evening".

He considered that evidence to be relevant to the respondent's later text message, in which he had said that "the over ingestion of alcohol perhaps led me to believe that we were both looking for the same thing". He then referred to Mr McManus' observations and his conclusion that the complainant had been exhibiting a sexual interest in the respondent.

51 His Honour said:

"The additional context which is said to flow from [Mr McManus'] statement relates to observations or conclusions which he drew during the course of the evening as to the fact that the complainant had been paying a lot of attention to the [respondent], so that he [Mr McManus] thought at the time that the complainant was interested in the [respondent].

The issue in this case being consent, the allegation put is that the reference to the man going with hostesses when he could have had the complainant for free provides part of the context upon from (sic) which the [respondent] may have picked up signals about a general sexual willingness on the part of the complainant. The additional context, of course, relates to the celebratory nature of the evening and the visits to various places of interest in the Kings Cross area.

The material in paragraphs 18 and 22 [see para [26] above] in particular, certainly in the general context, does in my view have significant probative value which would outweigh any prejudicial effect of it, in that it would have provided the [respondent] with some insight at least into the general thinking of the complainant on that evening. That, in turn, might act as some sort of antidote to the evidence that the complainant had, in the past, expressly disavowed any interest in intimacy with the [respondent]. That is evidence which, in my view, is relevant and probative in the general sense. The question is whether it is also caught by s 293 and, if it is, whether any exception applies to it."

52 His Honour then expressly held the material to be relevant, and returned to consider whether it came within s 293(3), and was therefore (subject to any exception) inadmissible. He continued to express doubts about that, but nevertheless went on to hold that the evidence came within the exception provided by s 293(4)(a). That is the exception that allows the admission of evidence of sexual activity or experience on the part of the complainant if it is evidence of contemporaneous (that is, at or about the time of the commission of the alleged sexual offence) sexual activity or experience (referred to by his Honour as "the temporal test", and is of events forming part of a connected set of circumstances in which the alleged sexual offence was committed (referred to by his Honour as "the connection test").

53 In this respect, he said:

"So the evidence meets the temporal test in sub-para (1) and it also, in my view, meets the connection test in sub-para (2). It is evidence of events forming part of a connected set of circumstances in which the alleged offence was committed, in other words the connection is the attitude towards sexual availability indicated by the complainant in her encounter with the stranger at the club and the formation by the accused of a belief, which may have been mistaken, as to consent on the part of the complainant. There is, in my view, sufficient connection, in that sense between what occurred in the club and what occurred two to three hours later in the boat to say that, in a practical sense, the earlier events form part of connected set of circumstances in which what is said to have been a sexual offence was committed."

He went on to declare himself satisfied that the probative value of the evidence outweighed any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. He therefore concluded that the material fell within the exception in s 293(4)(a), and should be admitted. It is that conclusion that the Director challenges by the second ground of appeal.

The competing positions of the parties on appeal

54 The primary position of the Director, both at first instance and on appeal, was that the evidence was not (and could not have been) relevant, and ought, therefore, to have been excluded under s 56 of the Evidence Act 1995 (see below).

55 The Director's alternative position on appeal was that the evidence falls within s 293(3) of the Criminal Procedure Act (and is, therefore, prima facie inadmissible) and does not come within the exception provided for by s 293(4)(a).

56 On behalf of the respondent it was contended that the evidence was:

"... clearly relevant to the state of mind of the respondent at the time of the alleged offence."

57 Senior counsel expressly adopted and endorsed that part of the judgment in which the judge said that the evidence:

"... provides part of the context upon from [sic] which the [respondent] may have picked up signals about a general sexual willingness on the part of the complainant"

and submitted (with respect to the relevance of the evidence) that the evidence needs to be seen in the wider context of Mr McManus' statement to the effect that the complainant was showing particular interest in the respondent.

58 The submissions on behalf of the respondent attacked the Director's submissions on relevance by pointing out that they made no reference to Mr McManus' observations of the complainant's apparent sexual interest in the respondent, and were therefore deficient.

59 A secondary position adopted on behalf of the respondent was that the evidence does not fall within s 293(3), as it is not evidence that discloses or implies either that the complainant has or may have had sexual experience or lack thereof, or has or may have taken part or not taken part in any sexual activity.

60 It was further contended that, if the evidence is within s 293(3), it was open to his Honour to find that the evidence met both the temporal test and the connection test.

Analysis

61 The starting point in any determination concerning the admissibility of evidence is s 56 of the Evidence Act 1995, which provides that, except as otherwise provided in the Evidence Act, evidence that is relevant in a proceeding is admissible, and evidence that is not relevant is not admissible.

62 By s 55, evidence that is relevant in a proceeding is evidence that, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. The "fact in issue" in the trial the existence of which the evidence in question was said to be rationally capable of affecting was the element of the offence charged that the complainant did not consent to sexual activity with the respondent. (As I have mentioned above, although a brief allusion was made to the respondent's state of mind during the course of argument, no mention was made of any question of absence of knowledge or lack of consent or of any belief by the respondent that the complainant was consenting. Nevertheless, those potential issues must be borne in mind.)

63 It is difficult to understand what relevant test his Honour had in mind in the conclusion contained in the third of the paragraphs extracted above (see para [51]) - that the evidence in paras 18 and 22 of Mr McManus' first statement (that is, of the complainant's remarks concerning the man in whom she showed a sexual interest) had "significant probative value" that "outweigh[ed] any prejudicial effect of it". It seems to reflect an amalgam of the tests posed by the Evidence Act in s 97 (tendency evidence), s 101 (restriction on the use of tendency evidence adduced by the prosecution in criminal proceedings) and s 137 (exclusion of evidence adduced by the prosecution in criminal proceedings where the danger of unfair prejudice outweighs the probative value of the evidence). The evidence in question is evidence sought to be adduced on behalf of the respondent. Accordingly, neither s 101 nor s 137 can have any application. Section 97 imposes a restriction on evidence adduced for the purpose of proving a tendency on the part of a person to act in a particular way or to have a particular state of mind, rendering evidence inadmissible unless it has significant probative value. It may well be that the proper characterisation of the purpose for which the evidence was sought to be adduced, through the complainant, on behalf of the respondent, was to establish a tendency on the part of the complainant to act in a particular way (to engage in sexual activity) or to have a particular state of mind (presumably interest in or willingness to engage in, sexual activity) but, if so, that was never articulated. Section 97 does not include any countervailing question concerning the potential prejudicial effect of the evidence.

64 It may also be that his Honour took the view that this evidence did establish a tendency on the part of the complainant to engage in sexual activity, regardless of the identity of any person with whom she engaged. That possibility is supported by his reference in the preceding paragraph to "a general sexual willingness on the part of the complainant", and the later reference to "sexual availability evidenced by the complainant". Whatever may be read into the reasoning, his Honour did not purport to admit the evidence as tendency evidence.

65 Although the issues as presented to the judge were limited to proposed cross-examination of the complainant, it is appropriate to bear in mind that there may also be an attempt to call evidence from Mr McManus. The following reasoning is applicable to evidence adduced by either means.

66 The judgment is flawed in a number of respects.

67 First, the evidence was not, and was not capable of being, relevant. The issue in the trial, as declared by counsel for the respondent, was whether, in the early hours of 18 May 2012, the complainant had in fact consented to sexual connection (by cunnilingus) with the respondent. It is proper to broaden that inquiry to include questions concerning the respondent's knowledge (or lack thereof) that the complainant was not consenting (in the event that it would be proved that she was not), or his belief that she was consenting (again, in the event that it would be proved that she was not).

68 That the complainant had exhibited sexual interest in another man (whether or not at or near the time the offence is alleged to have been committed) is irrelevant to any question concerning her consent to sexual engagement with the respondent.

69 In this determination, I exclude from consideration both the complainant's evidence of her earlier rejection of the respondent's advances, and her evidence that, when the respondent performed the act of cunnilingus upon her, she was asleep. Those matters are allegations made by the Crown, but remain unproved. They do not bear upon the admissibility of the evidence in paragraphs 18 and 22 of Mr McManus' statement. The issue is a simple one: it is now clearly understood that the willingness of a person (whether male or female) to participate in sexual activity with one person does not, and cannot be taken to, connote willingness to participate in sexual activity with another. For the same reason, the evidence is not relevant either to the respondent's knowledge (or lack thereof) of the absence of consent by the complainant, or any belief in her consent that he might assert.

70 The judge's conclusions that the evidence indicated "a general sexual willingness on the part of the complainant", and that it "might act as some sort of antidote to the evidence that the complainant had, in the past expressly disavowed any interest in intimacy with the [respondent]" betrays an impermissible approach to the question of consent in the prosecution of allegations of sexual offences. The reasoning contains an unstated premise. The unstated premise is that a person who engages sexually with another person will, or is likely to, engage sexually with any other person. It is a patently false premise. Section 293 was introduced into the legislation (originally as s 409B of the Crimes Act 1900) for the specific purpose of putting an end to offensive and demeaning cross-examination that proceeded on the basis that evidence of consent by a person (then invariably female) to sexual engagement with one person (person A) provided the foundation for an inference that that person also consented to sexual engagement with another person (person B). That process of reasoning has been banned from the criminal courts, first by s 409B of the Crimes Act, and subsequently by s 293 of the Criminal Procedure Act. Yet that is precisely the process of reasoning disclosed in the passages of the judgment set out above, and the inference that was explicitly drawn. That inference was the basis for the decision to admit the evidence of the complainant's sexual interest in the stranger at Kings Cross.

71 The submissions made on behalf of the respondent, that the proposed evidence "needs to be seen in the wider context in which the complainant was showing particular interest in the respondent" perpetuates the erroneous approach. Potential evidence that the complainant exhibited an interest in the respondent was not in issue on the appeal. Such evidence (if in proper form) would almost certainly be admissible, supposing that the respondent asserted that the complainant consented, that he did not know that she did not consent, or that he believed that she did consent. It was the inferences to be drawn from her apparent interest in another man that were in issue. Those inferences - as sought on behalf of the respondent - were that, because of her apparent interest in the stranger, she was "sexually available", or that it signified "general sexual willingness", or that her sexual interest (availability) was "general". Those inferences were simply not permissible. Evidence that the complainant showed signs of sexual interest in the respondent could not be strengthened by evidence that she showed signs of sexual interest in another man.

72 The evidence was not relevant and ought to have been excluded on that basis. The finding that the evidence was relevant was erroneous.

73 Section 293 is applicable to evidence that otherwise would be admissible and of probative value: R v Morgan (1993) NSWLR 543, per Gleeson CJ at 544. However, since s 293(4)(a) was the basis upon which his Honour determined to admit the evidence, it is necessary to deal with the relevant findings of fact and conclusions.

74 Since I have concluded that the evidence was not relevant and therefore had no probative value, s 293 was not engaged. Even if it were, the judge's expressed concern as to whether the evidence fell within sub-s (3) was well founded. To come within the s 293(3) exception, the evidence had to disclose or imply one (or more) of the following:

• that the complainant has had sexual experience;
• that the complainant may have had sexual experience;
• that the complainant lacked sexual experience;
• that the complainant may have lacked sexual experience;
• that the complainant has taken part in sexual activity;
• that the complainant has not taken part in sexual activity;
• that the complainant may have taken part in sexual activity;
• that the complainant may not have taken part in sexual activity.

75 The most that could be drawn from the content of Mr McManus' statement (on which the proposed cross-examination would be based) is that the complainant exhibited sexual interest in a man she met in a Kings Cross bar. That falls far short of sexual experience or sexual activity, or lack thereof.

76 Had the judge properly considered s 293(3), he would have rejected the contention that the evidence fell within that sub-section. That would have precluded the subsequent excursion into the exception provided by sub-s (4)(a). The second error in the decision to admit the evidence lay in failing to make an explicit finding on that question. One consequence was that the judge did not identify into which of the various categories of sub-s (3) the evidence fell - whether it was sexual experience or lack thereof; whether it was sexual activity or lack thereof; whether the evidence implied or disclosed that the applicant had or may have had either.

77 Since the evidence did not come within s 293(3), there was no call to examine the exception provided by s 293(4)(a).

78 The third error lay in the application of sub-s (4)(a)(i), that is, in the finding that the evidence related to sexual experience or sexual activity "at or about the time of the commission of the offence".

79 The proposed evidence was that the encounter with the stranger had taken place at some time in the early hours of the morning at Kings Cross. Much occurred in between that encounter and the events giving rise to the charge against the respondent. The party had returned to the boat, had settled on a sofa, and the complainant had fallen asleep. Mr McManus had left the area to sleep elsewhere. The complainant's encounter with the man in the bar (the subject of the evidence sought to be adduced) did not take place "at or about the time" of the events giving rise to the charge. Several hours intervened.

80 The fourth error concerned the application of sub-s (4)(a)(ii). It lay in the conclusion that the two events (that is, the meeting with the stranger and the complainant's sexual interest in him, and the alleged offence) "form[ed] part of a connected set of circumstances". The only connection between the events was the presence of the respondent, the complainant, and Mr McManus throughout the evening. There was no relevant connection between the complainant's asserted interest in the stranger and the circumstances in which the offence allegedly was committed by the respondent.

Conclusion

81 In my opinion, the decision to admit the evidence was wrong. The evidence was inadmissible. It remains to consider whether the ruling on the evidence passes the jurisdictional test created by the concluding words of s 5F(3A). I will come to that below.

(ii) The evidence of the telephone conversation between the complainant and the respondent on 12 June 2012

82 The Crown tendered the tape recording of the telephone conversation on the basis that it contained admissions on the part of the respondent. "Admission" is widely defined in the Dictionary to the Evidence Act 1995 as:

"a previous representation that is:

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and

(b) adverse to the person's interest in the outcome of the proceeding."

83 The Crown position was that that part of the conversation in which the respondent apologised to the complainant and said:

"... um basically really I want to apologise, umm, maybe there were some crossed wires there, I'd like to think that we could still be friends and forget about all that",

and:

"... I think it was just signals on the day ...",

and:

"I apologise ... while I was laying there you were, I don't know whether you were doing it in your sleep or whatever. Your leg, my arm, your leg against my arm, and I don't know, the alcohol."

could be construed as admissions of wrongdoing, including criminal wrongdoing. For the purpose of the reasoning with respect to this ground of appeal, I will treat the respondent's statements as constituting admissions.

84 Objection was taken on behalf of the respondent to the admission of the evidence on four independent bases provided for in the Evidence Act. The bases were:

s 85, which restricts the admission of evidence of admissions made in the course of "official questioning", or as a result of an act of another person who is capable of influencing the decision whether or not a prosecution should be brought or should be continued;

• s 90, which confers on the court a discretion to refuse to admit evidence of an admission where the evidence is adduced by the prosecution and:

"... having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence";

• s 137, which obliges a court in a criminal proceeding to refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the defendant;

• s 138, which confers a discretion to exclude evidence improperly or illegally obtained.

85 Graham ADCJ did not decide the objection under s 85; that section need not be considered. His Honour held that, for the purposes of s 138, the evidence was not illegally or improperly obtained, and therefore that section had no application.

86 He rejected the evidence under s 137, and also held that it ought to be rejected under s 90. It is therefore necessary to consider his reasoning in respect of these two provisions.

Section 90: admissions

87 Section 90 is in the following terms:

"90 Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

(a) the evidence is adduced by the prosecution, and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

Note: Part 3.11 contains other exclusionary discretions that are applicable to admissions."

88 Section 90 is a statutory formulation of a longstanding common law discretion to exclude, in a criminal trial, evidence that has been obtained in circumstances that would render its admission unfair: see, for example, McDermott v The King [1948] HCA 23; 76 CLR 501; Wendo v The Queen [1963] HCA 19; 109 CLR 559; Cleland v The Queen [1982] HCA 67; 151 CLR 1; The Queen v Swaffield; Pavic v The Queen [1998] HCA 1; 192 CLR 159.

89 It may be observed that s 90 is directed to the circumstances in which the admission was made; unlike s 137, which will be considered below, it does not call for any assessment of the probative value of the evidence.

The reasons given for rejecting the evidence under s 90

90 Graham ADCJ, with some expressed reservations, concluded that what was said by the respondent to the complainant:

"... could amount to an admission of some aspects of some form of sexual offence."

Whether the respondent's apology is to be construed as an admission of wrongdoing will be a matter for the jury.

91 His Honour concluded that the discretion conferred by s 90 ought to be exercised in favour of the respondent, by the rejection of the evidence. His reasons appear to be encapsulated in the following passages in the judgment:

"... the [respondent] was engaged in what appeared to be a genuine and indeed emotional telephone conversation which was consistent with the follow up to his invitation in the apology text message to invite the complainant to discuss the issues with him. He was not conscious that the complainant was engaging in this conversation at the instigation of the police, nor, of course, was he informed that he had a right to remain silent or to speak as he saw fit. No caution had been administered to him in the course of the conversation obviously, nor at any previous time once the investigation had got under way. Indeed ultimately, when the [respondent] was arrested, he chose to exercise that right to silence. There is, in other words, strong ground for believing that, had he been informed that the conversation was at the behest of the police and was being recorded, he would have declined to participate in it once he realised that this was not a genuine attempt by the complainant to discuss the issues with him but was, in fact, an evidence gathering exercise.

The complainant was, I am satisfied, a person who should be regarded as an agent of the State ... true it is that her conversation was not scripted, though the key purpose of it, and perhaps the key question, was conveyed to her by the police so that what she was asking was, in effect, what the police would themselves have wished to ask, had they been confident that the [respondent] would speak to them if they sought to interview him.

In my view the circumstances here did amount to an unfair derogation of the [respondent's] right to exercise a free choice to speak or to be silent. He was clearly a suspect and the police already had evidence which could have been sufficient to bring a charge and what he said was, in fact, the catalyst for the charge ultimately being brought against him. The conversation was directed to getting him to say something along the lines of what he said and was thus elicited and elicited by a person who was, for these purposes, an agent of the State. Whilst it might be said that that was a somewhat loose relationship of agency it was, in my view, nonetheless such a relationship.

Secondly, the question is whether the line has been crossed by the police exploiting any special characteristics of the relationship between the suspect and their agent, so as to extract a statement which would not otherwise have been made. Clearly, the officer in charge anticipated that it was more likely that the accused would make an admission to the complainant than that he would make one to the police. In seeking to fulfil that hope or expectation, in my view, the police were, in this instance, exploiting some special characteristics of the relationship between the suspect and their agent, the complainant. The exchange between them would not have taken place in the form and manner in which it did take place, but for the intervention of the State and its agent.

...

The admissions were elicited in the sense that the conversation was the functional equivalent of an interrogation and the State agent exploited special characteristics of the relationship to extract the statement ... I have already found that the police, through the complainant, did exploit those special characteristics of the relationship to extract the statement.

...

In the light of those findings, it is open to this Court to conclude, and the Court does conclude that, having regard to the circumstances in which the admission was made, it would be unfair to the [respondent] to use the evidence by virtue of the application of those propositions set out in the case of R v Pavitt at para 70." (italics added)

92 The italicised passages constitute findings of fact, each of which is referable to relevant considerations identified in previous authorities. To assist comprehension of the discussion that follows, I will itemise those findings of fact. They are:

(i) the respondent was not aware that the conversation took place at the instigation of police;

(ii) no caution had been administered to the respondent (with respect to his right to silence);

(iii) the complainant was acting as "an agent of the state";

(iv) the complainant's part of the conversation was not "scripted" by police, but the "key question" had been conveyed to her and reflected what police would have asked if they had questioned the respondent directly;

(v) the circumstances amounted to "an unfair derogation" of the respondent's right to exercise a free choice to speak or to be silent;

(vi) the admissions made by the respondent were "elicited", and "elicited by a person who was, for these purposes, an agent of the state";

(vii) in having the complainant act as their agent, the police exploited special characteristics of the relationship between the respondent and the complainant, so as to extract a statement that otherwise would not have been made;

(viii) the conversation between the complainant and the respondent would not have taken place in the form and manner in which it did take place, but for the intervention of the State (police) and its agent (the complainant);

(ix) the conversation was "the functional equivalent of an interrogation" for the purpose of which the complainant "exploited special characteristics of the relationship" between herself and the respondent in order to extract the admission.

It was a combination of these facts that led his Honour to the conclusion, for the purposes of s 90, that it would be unfair to admit the evidence.

The position of the parties on appeal

93 The position of the Director was:

• it was not correct to find that the circumstances of the telephone conversation amounted to "an unfair derogation" of the respondent's right to speak or remain silent. The history of events since the evening of 17 May showed that he was keen to speak to the complainant;

• it was wrong to find that the complainant was acting as "an agent of the state";

• it was wrong to find that the admissions were "elicited"; they were consistent with the text message of 29 May;

• it was wrong to find that the complainant's part in the conversation was "the functional equivalent of an interrogation".

94 On behalf of the respondent, it was argued that the findings were correct and supported by the evidence.

Analysis

95 In the final remarks extracted above from the judgment, Graham ADCJ was referring to the decision of this Court in R v Pavitt [2007] NSWCCA 88; 69 A Crim R 452 and two Canadian decisions, R v Hebert [1990] 2 SCR 151 and R v Broyles [1991] 3 SCR 595. The notion of "an agent of the state" appears to have originated in Broyles, in a case the circumstances of which were not dissimilar to the present. The notion of "eliciting behaviour" appears to have originated in Hebert, a case in which a suspect who had indicated that he did not wish to make a statement to police was placed in a prison cell with an undercover police officer to whom he made incriminating statements.

96 In order to understand the significance of the manner in which Graham ADCJ's findings of fact were expressed, it is necessary to understand the origin of some of those expressions and the concepts to which they apply. I begin with the two decisions of the Supreme Court of Canada. These decisions are important, because they secured the endorsement of the High Court in Swaffield and Pavic (see below). Each concerned s 7 of the Canadian Charter of Rights and Freedoms, which is in the following terms:

"7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

97 In Hebert, the accused was charged with robbery. He was arrested and advised of his right to retain and instruct counsel. While in custody he contacted, and obtained advice from, counsel. He was then cautioned [presumably as to his right to silence] and indicated that he did not wish to make a statement. He was then placed in a cell with a police officer, disguised in plain clothes, posing as a suspect under arrest. The police officer engaged the accused in conversation, during which the accused made incriminating statements, implicating himself in the robbery with which he was charged.

98 The trial judge declined to admit the evidence, as a consequence of which the accused was acquitted. The Crown successfully appealed, and a new trial was ordered. The accused appealed to the Supreme Court.

99 The principal question considered by the Supreme Court was whether the manner in which the evidence was obtained:

"... violated the accused's right to the principles of fundamental justice".

The particular principle of fundamental justice under consideration was the right of a detained person to silence. McLachlin J (with whose reasons six other members of the Court agreed) held that the scope of that right must be based on the fundamental right of suspects to choose whether to speak to the authorities or to remain silent. That choice had to be a "meaningful" one; rejection of such evidence was permissible where it had been obtained unfairly in circumstances that violated that right of a choice.

100 In the circumstances of that case, McLachlin J held that the accused's rights had been violated and the evidence ought not to be admitted.

101 It was in the course of providing the rationale for that conclusion that McLachlin J developed the concept of "eliciting behaviour". In that respect, she said:

"133 ... a distinction must be made between the use of undercover agents to observe the suspect, and the use of undercover agents to actively elicit information in violation of the suspect's choice to remain silent. When the police use subterfuge to interrogate an accused after he has advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect's constitutional right to silence: the suspect's rights are breached because he has been deprived of his choice. However, in the absence of eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police."

102 A similar issue arose a year later in Broyles. The accused, a 16 year old, was charged with the murder of his grandmother. At the time of the charge the evidence against him was circumstantial. Several days prior to the accused being charged with murder, he was charged with fraud offences. He asked to call a lawyer, but appears to have been unsuccessful in making contact with one. He was then cautioned by a police officer and questioned. The evidence of the police officer was that at that time the accused was not a suspect in a homicide. Later, he was a suspect, but police had insufficient evidence to charge him.

103 Police recruited a friend of the accused to visit him while in custody. The friend was fitted with a listening device. The accused did not admit to killing his grandmother, but made a damaging statement, to the effect that he had known that his grandmother was dead from a time when she was missing and before her body was found.

104 The evidence was admitted in the trial and the accused was convicted. He appealed to the Supreme Court. The judgment of the Supreme Court was delivered by Iacobucci J. Iacobucci J referred to Hebert, and said:

"25 It is clear from Hebert that the right to silence is triggered when the accused is subjected to the coercive powers of the state through his or her detention. The question of what right to silence, if any, remains after a detainee is released is a question not raised by the facts of this case."

105 It was then that the notion of "state agent" appeared. Iacobucci J went on to say:

"27 It is clear from Hebert, supra, that the purpose of the right to silence is to prevent the use of state power to subvert the right of an accused to choose whether or not to speak to the authorities. Where the informer who allegedly acted to subvert the right to silence of the accused is not obviously a state agent, the analysis will necessarily focus not only on the relationship between the informer and the accused, but also on the relationship between the informer and the state. The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required. First, as a threshold question, was the evidence obtained by an agent of the state? Second, was the evidence elicited? Only if the answer to both questions is in the affirmative will there be a violation of the right to silence in s 7.

(a) The Threshold Question

28 In every case where the right to silence is raised, the threshold question will be: was the person who allegedly subverted the right to silence an agent of the state? In answering this question one should remember that the purpose of the right to silence is to limit the use of the coercive power of the state to force an individual to incriminate himself or herself; it is not to prevent individuals from incriminating themselves per se. Accordingly, if the person to whom the impugned remarks is made is not an agent of the state, there will be no violation of the right to silence." (italics added)

Iacobucci J went on to consider what constituted the recipient of confessional material "an agent of the state". He said:

"29 In some cases, it will be clear that the person to whom the statements were made was an agent of the state. For example, if the statements were made to a police officer or to a prison official, whether in uniform or in plainclothes, there could be no question that the statements were made to an agent of the state. In other cases, it will be less clear. Where the statements are made to an informer, as in the case at bar, it may be arguable whether or not the coercive power of the state was brought to bear on the suspect in obtaining the statement from him or her.

In determining whether or not the informer is a state agent, it is appropriate to focus on the effect of the relationship between the informer and the authorities on the particular exchange or contact with the accused. A relationship between the informer and the state is relevant for the purposes of s 7 only if it affects the circumstances surrounding the making of the impugned statement ... Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange. I would accordingly adopt the following simple test: would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?" (italics added)

106 He then went on to consider the concept of "elicitation" which he found difficult precisely to define, but identified a number of factors that influence the determination. He concluded the relevant question to be:

"37 ... considering all the circumstances of the exchange between the accused and the state agent, is there a causal link between the conduct of the state agent and the making of the statement by the accused?" (italics added)

107 He then isolated two groups of relevant factors. The first, he held:

"38 ... concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation." (italics added)

The second set of factors, he held:

"39 ... concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?" (italics added)

Iacobucci J also considered that evidence of the instructions given to the state agent for the conduct of the conversation may be important.

108 Taking into account all of those factors, Iacobucci J concluded that the friend was acting as a state agent, and did elicit the statements from the accused such that statements made by him were made in violation of his rights under s 7 of the Charter to choose to remain silent.

109 As I have noted above, the Canadian cases are important because they were both referred to, with apparent approval, by various members of the High Court in Swaffield and Pavic. I shall state the facts in each of those cases as briefly as possible. Swaffield was a case under the Queensland Criminal Code. Swaffield was suspected of various offences, of which the most serious was arson. He declined to be interviewed. He was charged, but no evidence was offered and he was discharged. He remained a suspect. An undercover operation took place during which an undercover police officer engaged him in conversation. During the course of that conversation Swaffield made admissions of his involvement in the fire which had given rise to the charge of arson.

110 On his trial, the evidence was admitted, and Swaffield was convicted. The Court of Appeal (Qld) allowed the appeal and ordered an acquittal. The Crown appealed to the High Court.

111 Pavic was a Victorian case. Pavic was suspected of murder. He was taken into custody for questioning but declined to answer questions. He was released.

112 Police then took a statement from a close friend of Pavic, which they considered provided them with enough evidence to charge him. They suggested that the friend, on behalf of police, speak with Pavic, while carrying a recording device. The friend did so and Pavic made admissions. The evidence was admitted, it played a substantial part in the Crown case, and Pavic was convicted. The appeal to the Court of Appeal was dismissed. Pavic further appealed to the High Court.

113 In a joint judgment, Toohey, Gaudron and Gummow JJ noted that, historically, the approach of Australian courts had not been, as was the case in the Canadian cases, to address the issues by reference to the informed choice of the suspected person to speak. However, their Honours added:

"91 ... it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations."

They then said:

"97 What if a test is applied by reference to Swaffield's right to choose whether or not to speak to the police? The application of such a test turns, at least so far as the Canadian authorities are concerned, on the extent to which any admission was elicited. It is clear from Hebert that the Canadian Supreme Court regards the use of a subterfuge to obtain a statement as likely to be in violation of the choice whether or not to speak but even then would treat a quite unelicited admission as not calling for the exercise of the discretion to exclude."

114 Their Honours held, as did Brennan CJ in a separate judgment, that Swaffield's admissions were elicited by the undercover police officer in clear breach of his right to choose whether or not to speak. They accordingly dismissed the Crown's appeal.

115 Although the principles in relation to Pavic were not different, the result was - the evidence against Pavic was held to be admissible, and his appeal was dismissed.

116 Kirby J, who dissented in the result with respect to Pavic, also adopted the approach taken by the Canadian Supreme Court (para [155]). He said:

"155 The test propounded is consistent with the general approach which our law has taken towards deception by law enforcement officials. Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest ... There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority ... The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent. Or it will be crossed where police have exploited any special characteristics of the relationship between the suspect and their agent so as to extract a statement which would not otherwise have been made." (italics added)

117 Pavitt was another case in which allegations of sexual offences were made, and in which, at the instigation of police, the complainant telephoned the offender for the specific purpose of engaging him in conversation in which it was hoped that he would make admissions. The conversation was, as in the present case, recorded pursuant to a warrant issued under the Surveillance Devices Act. McColl JA and Latham J, in a joint judgment, examined and analysed in detail the relevant authorities.

118 Their Honours, after extensive consideration, reduced the relevant propositions to nine, which they set out as follows:

"70 ...

(a) The underlying consideration in the admissibility of covertly recorded conversations is to look at the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned ...

(b) If that freedom is impugned, the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted ...

(c) Even if there is no unfairness the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards ...

(d) The question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and/or improper include whether the accused had previously indicated that he/she refused to speak to the police;

(e) The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required:

(i) as a threshold question, was the evidence obtained by an agent of the state?

(ii) was the evidence elicited?

(f) A person is a state agent if the exchange between the accused and the informer would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents ...

(g) Absent eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police ...

(h) Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the state agent for the conduct of the conversation may also be important ...

(i) The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful." (internal citations omitted)

These were the propositions to which Graham ADCJ referred in the closing paragraph of the extract from his judgment above. McColl JA and Latham J went on to say:

"71 We would add that views may differ about whether a complainant is a state agent, even if the conversation is recorded in circumstances facilitated by the police ... For our part we would not readily apply the label of state agent to a complainant speaking to a suspect who had not been charged, nor refused to speak to police. Rather we would look at the whole relationship as revealed by the participants' past history and what is revealed by the actual conversation. It may be relevant to consider whether the police scripted the conversation." (internal citation omitted)

119 At [72] their Honours considered that conversations in such circumstances were more likely to be reliable as the suspect would have no occasion to boast or to "big note him or herself", and would be more likely to reject any false proposition put.

120 While recognising that the conversation would "most probably" not have been recorded without the intervention of police, their Honours rejected the proposition that the complainant in that case was an agent of the State and went on to hold that, even if he were, he did not exploit any special characteristics of his relationship with the appellant. They did not consider that the conversation would, absent the intervention of police, have been materially different, noting that the appellant exhibited no unease in participating in the conversation and was relaxed throughout and was in a position to terminate the conversation at any time. There was no inequality in the conversation. They noted that, if anything, it was the complainant who appeared vulnerable, being in an increasingly emotional state during the conversation.

121 They further rejected the notion that the conversation was "the functional equivalent of an interrogation", saying that the complainant had clearly formulated ideas of what he wanted to say to the appellant, and that the evidence did not support the proposition that police had scripted the complainant's part in the conversation.

122 They concluded that the appellant had made the admissions voluntarily in circumstances which did not cast doubt upon their reliability. They concluded that the circumstances in which the conversation took place were not such as to lead to the conclusion that its admission into evidence, or a conviction obtained in reliance upon it, was bought at a price that was unacceptable having regard to contemporary community standards.

123 The conclusions of their Honours are, of course, specific to the facts of the case that was before them. It is for this Court to apply the principles set out in paragraph 70 to the facts of the present case. However, the facts in Pavitt bore a close resemblance to the present case with the exception that in Pavitt the telephone conversation was very lengthy and contained more damaging admissions than the conversation in the present case. The decision in Pavitt is a useful guide in the application of the principles stated.

124 Like McColl JA and Latham J in Pavitt, I am satisfied that, in the present case, the complainant was not "an agent of the State", and it was erroneous so to categorise her. The evidence of Detective Egan-Hurst was that he believed that there would, in any event, have been contact between the complainant and the respondent and that a conversation concerning the events of 18 May would have taken place. Given their personal and professional relationship, this was a correct assessment. It was inevitable that the respondent would reply to the complainant as he did in the telephone call. He had already communicated with her, by text message, to similar effect.

125 The exchange was therefore not materially different from what it would have been had there been no intervention by police (see Broyles, para 30). The intervention of the police did not bring about the respondent's admissions: their intervention was limited to the timing of the conversation, and the fact that it was recorded, so that it could be used for evidentiary purposes.

126 Applying the test stated in the last sentence of paragraph 30 of Broyles (would the exchange have taken place in the form and manner it did, but for the intervention of the state or its agent?), the complainant was not an agent of the state.

127 Nor could it be said that the admission was "elicited". Again, applying the tests proposed in Broyles (paragraphs 37-40) the apology initially made by the respondent in the telephone conversation was made in response to the complainant's inquiry about why he had been attempting to contact her. At that stage, it could not be said that the complainant "actively [sought] out information such that the exchange could be characterised as an interrogation". Even the second apology in the conversation was made in response to the complainant pressing the respondent to explain why he had done what she asserts that he did. What that assertion was, was never spelled out. In no way could that be called "the functional equivalent of an interrogation".

128 I am satisfied that the circumstances of the conversation did not amount to an unfair derogation of the respondent's right to exercise a free choice to speak or to be silent, and the finding that it was was erroneous. The respondent was able to terminate the conversation at any time. The complainant did not, prior to the respondent's first apology, make any direct or indirect accusations. She opened the conversation by asking the respondent why it was that he had been attempting to contact her. It was the respondent who introduced the subject of the events of the early morning of 18 May and apologised for them. It is also relevant to note that the apology he made in the conversation echoed the apology he had, in a completely unsolicited fashion, earlier made by text message.

129 It was also erroneous to hold that the police were exploiting some special characteristic of the relationship between the respondent and the complainant. There was no relationship of trust (in the sense that that expression was used in paragraph 39 of Broyles) between the complainant and the respondent. The respondent was not obligated or vulnerable to the complainant; and the complainant did not manipulate the respondent to bring about a mental state in which he was more likely to talk.

130 It was incorrect also to say that, while the conversation was not "scripted", the "key question" was conveyed to the complainant so that she was, in effect, asking what the police themselves would have wished to ask. All that Detective Egan-Hurst did was to suggest to the complainant a possible opening gambit, or introduction. That did not touch on the alleged offence at all - it was to ask why the respondent had been attempting to contact her.

131 The evidence of Detective Egan-Hurst and the complainant shows that they had different understandings about the purpose of the call. Detective Egan-Hurst understood clearly that its purpose was to "capture" evidence in a permanent and objective form. The complainant understood that the purpose of the call was for her to obtain an explanation for the respondent's conduct.

132 If the respondent's responses to the complainant are construed as admissions (as they are capable of being construed), they were not, within the meaning of s 90 of the Evidence Act, made in circumstances that rendered it unfair to use them in evidence. I am satisfied that the evidence ought not to have been excluded under s 90 of the Evidence Act.

Section 137

133 Section 137 of the Evidence Act is in the following terms:

"137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."

134 The section requires two separate assessments and a judgment: first, an assessment of the probative value of the evidence sought to be adduced by the Crown, second, an assessment of the danger of unfair prejudice to the defendant (that might be caused by its admission), and, finally, a judgment as to whether any such danger outweighs the probative value of the evidence. If the result of the assessment process is that the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant, the court is obliged to exclude the evidence. There is a danger of unfair prejudice if there is a real risk that the jury will make improper use of the evidence: R v BD (1997) 94 A Crim R 131.

135 The probative value that the Crown sought to assign to the evidence of the telephone conversation is to be found in the two distinct passages in which the respondent apologised to the complainant. The first of these was made in response to the complainant's query about why the respondent had been attempting to contact her by text messages, and was otherwise unprompted by anything she said. It amounted to a clear apology, a suggestion of misunderstanding on his part, and a wish to put the episode in the past. The second followed her asking what "compelled you to do something like that", accusing him of breaking her trust, denying that she had given "signals", reminding him of her prior rejection of his advances, and, finally, saying "... I don't know what part of no you don't get". It again amounted to a clear apology; even more importantly, it contained heavy overtones of admissions of sexual contact ("Your leg, my arm, your leg against my arm"); most importantly, it contained an acknowledgment that the complainant had been asleep at the time.

136 In the District Court, the Crown's position was that these were unequivocal acknowledgments of criminal wrongdoing. If that were accepted, then it can hardly be gainsaid that the probative value of the evidence is high.

137 However, the position adopted on behalf of the respondent was that his answers to the complainant were not so clear cut, and were capable of a different interpretation, or, as it was put, "competing inferences", and that this diminished the probative value of the evidence (counsel did not specify what the "competing inferences" were).

138 In considering the probative value of the evidence, the judge said:

"However, there is a real possibility that there is an alternative explanation, inconsistent with the guilt of the [respondent], which, in my view, significantly affects the probative value of the material. That is, of course, even assuming that what was said does amount to an admission. I am prepared to accept, for the purpose of this ruling, that there is sufficient material to give rise to an available inference of the type I have outlined but, if that is the case, then there is, in my view, a real possibility of an alternative explanation ... that is, an alternative inference inconsistent with the prosecution case and objectively plausible ...

In considering the alternative explanation which may be available here, it is not, of course, the task of this court to determine which is the more probable or correct inference to be drawn, that contended for by the Crown or the alternative inference available in the context of this case. What is relevant is the availability or presence of an inference which is a competing inference ...

The alternative explanation is that what was said by the [respondent] is equally consistent with, or is at least plausibly consistent with, the [respondent] expressing a sense of guilt at having become involved in a consensual encounter in the aftermath of an evening of drinking and socialising, despite the relationship with the complainant previously having been one in which the complainant had drawn a line between their professional and social relationship, on the one hand, and any intimate relationship on the other. That possibility is enhanced (a) by the context of the conversations which had been had in the past between the complainant and the [respondent], referred to in her statement, (b) by the terms of the text message which had been sent on 30 May and, indeed, (c) what was said by the complainant at the bottom of page 2 of the transcript when, inter alia, she said 'I warned you before you know you were one of my closest friends'. That is an assertion which is consistent with the complainant's own statement that she had rejected any sexual advances on the part of the [respondent] and had insisted that they remain on friendly terms rather than on more intimate terms. If he had been 'warned' before, then that is an obvious explanation of the content of the warning.

The competing inferences, in other words, relate, on the one hand, to the possibility that the conduct of the [respondent] was criminal in the sense (in this instance) that there was a lack of consent or a knowledge of lack of consent, on the one hand, or of an acknowledgement of social or moral guilt, on the other. As adults, the conduct which is the subject of the charge here was not of itself illegal but obviously would be if the requirements of the criminal the law were met. However, even if not illegal, the conduct may have been regarded by one or both of the parties as unwise or as a source of subsequent regret on one or both sides. After all, there had been an apparently good working relationship and the conversation is at least plausibly consistent with disappointment that there had been some sexual encounter, which may have been perhaps a reluctant one but not necessarily one to which the complainant was not consenting or was one in which the [respondent] believed that she was consenting or had some grounds for believing that the encounter was consensual. After all, this was an event which occurred after a long night of celebration and where the parties had been socialising and drinking so that an apology, and even the accusation which was levelled about the breach of trust, would be consistent also with a consensual, but unwise and subsequently regretted, encounter between the [respondent] and the complainant.

In those circumstances, assuming that the material is otherwise admissible, for example assuming that what was said could amount to an admission of the type outlined by the Crown, the material is, in my view, almost intractably incapable of being dissected to determine whether the admissions could be reliably acted upon as admissions of criminality or aspects of criminality, on the one hand, or simply as admissions of moral or social impropriety, which could not be relevant to proof of the charge here. If the latter is an available inference, as I consider it is, then, while not falling into the same category as the situation of a person whose alternative explanation might involve admissions as a predilection for sexual encounters with high school teenagers, nonetheless there is a significant prejudicial effect where the alternative explanation itself reveals that there has been what could properly be regarded by the jury as, perhaps, the [respondent] taking advantage of a person with whom he was in a friendly and working relationship, to persuade that person to have a sexual encounter with him. That, in itself, would be prejudice of an unfair type. In other words, the application of s 137 of the Evidence Act would lead to a conclusion that the probative value of the alleged admissions here is weak, principally by reason of the existence of a plausible alternative explanation, whereas there is a significant danger of unfair prejudice to the [respondent]. While it is true that aspects of that explanation can be left to the jury with directions seeking to dispel any risk of that prejudice affecting the jury's deliberations, in my view there would be no direction which would be sufficient to dispel the risk that the jury might conflate the two types of guilt - criminal and moral guilt - and attribute to that conversation more weight than it would properly carry where the inferences are relatively finally balanced, the competing inference being a strong available and plausible alternative explanation for what was said in the course of the conversation." (italics added)

139 What his Honour found, in that passage, reduced to its basics, was:

• the words spoken by the respondent in the conversation were capable of being construed as admissions or acknowledgments that he had sexual intercourse with the complainant without her consent (that is, of criminal misconduct);

• the words spoken by the respondent in the conversation were also capable of being construed as admissions or acknowledgments of some lesser form of sexual or moral impropriety, not amounting to criminal misconduct, but nevertheless blameworthy;

• the availability of competing inferences to be drawn from the words spoken by the respondent significantly diminished the probative value of the evidence;

• the fact that the alternative explanation of "moral or social impropriety" created a significant risk of unfair prejudice, in that the jury would be likely to "conflate" criminal and moral guilt, and attribute to the conversation more weight than it could properly carry;

• since the probative value of the evidence was weak (by reason of the availability of the competing inferences) it was outweighed by the danger of unfair prejudice.

140 During the course of the passage extracted above, Graham ADCJ referred to, and purported to apply, the reasoning in R v XY [2013] NSWCCA 121 (with particular reference to the judgments of Hoeben CJ at CL and Blanch J), and DSJ v Director of Public Prosecutions (Cth); NS v Director of Public Prosecutions (Cth) [2012] NSWCCA 9; 215 A Crim R 349. It will be necessary to return to consider the principles for which these cases (and others) stand.

141 From the extract above from the judgment, it can be seen that the essential reason for the rejection of the evidence was that his Honour perceived some significant ambiguity in what the respondent was recorded as saying. The ambiguity he perceived lay in the respondent's responses to the complainant - were they to be construed as admissions of guilt of criminal conduct, or could they properly be construed as acceptance of some kind of moral wrongdoing falling short of criminality? (This, no doubt, was the "competing inference" to which counsel somewhat obliquely referred.) The Crown contended for the former construction. His Honour considered that the possibility of an alternative explanation, that the respondent's apologies were prompted by a sense of non-criminal wrongdoing, was "enhanced" by (i) the evidence of the complainant's previous rejection of the respondent's advances; (ii) the terms of the respondent's text message (another apology) of 30 May; and (iii) that part of the conversation in which the complainant told the respondent that she had warned him before, and that he had been one of her closest friends.

142 This, in his Honour's view, affected the probative value of the evidence, rendering it "weak". He perceived the potential prejudice to the respondent as lying in the competing explanation itself - in that, even though the competing explanation was not of criminal conduct, it was, nevertheless, of conduct that the jury might see as discreditable. He considered that, of itself, to be prejudice of an unfair type.

The competing positions of the parties on appeal

143 I will encapsulate the positions of the parties briefly. On behalf of the Crown it was argued that:

• his Honour erred in his assessment of the probative value of the evidence by taking into account (and treating as determinative) the fact that there existed "an alternative explanation" for the admissions;

• that the alternative explanation proposed by his Honour was simply not available on the evidence, and the three factors said to "enhance" the likelihood of the benign explanation did not do so;

• that his Honour erred in concluding that the alternative explanation itself constituted unfair prejudice.

On behalf of the respondent it was contended that:

• the findings were clearly open on the evidence;

• his Honour did not treat the mere existence of an alternative construction of the apologies as determinative;

• that, his Honour having concluded that the probative value of the evidence was weak, the further conclusion that it was outweighed by the prejudicial effect of the competing inference was also open to him.

Analysis

144 Section 137 does not arise for consideration unless and until the evidence in question has been judged to be relevant. That is because, as mentioned above, s 56(2) provides that evidence that is not relevant is not admissible. Section 56(2) is absolute, allowing for no exceptions. By s 56(1), evidence that is relevant is admissible. Unlike s 56(2), s 56(1) is subject to exceptions specified elsewhere in the Evidence Act.

145 Section 55 explains what is meant by "evidence that is relevant". It is:

"... evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding."

Thus, before consideration is given to any of the exceptions recognised by s 56(1), the evidence has been held (or admitted) to have the capacity rationally to affect the assessment of the probability of the existence of a fact in issue.

146 "Probative value" is defined in the Dictionary as meaning:

"the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

The exercise required by s 56(1) is a qualitative one: does the evidence have the quality of being capable of rationally affecting the assessment of the probability of the existence of a fact in issue? The exercise required in assessing probative value is a quantitative one: to what extent does the evidence have that quality?

147 Section 137 may therefore properly be read as:

"In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecution if the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue is outweighed by the danger of unfair prejudice to the defendant."

148 A necessary first step in the assessment of the probative value of evidence is to identify any "fact in issue" the assessment of the probability of the existence of which is said to be affected by the evidence. The ultimate facts in issue in a criminal trial are the facts that constitute the elements of the offence charged. Often there will also be issues about facts relevant to those facts: Smith v The Queen [2001] HCA 50; 206 CLR 650 at [7]. The elements of an offence against s 61I of the Crimes Act are:

• that the accused had sexual intercourse (in the manner alleged) with the complainant;

• that the complainant did not consent to the sexual intercourse;

• that the accused knew that the complainant did not consent to the sexual intercourse.

In a criminal proceeding, "fact in issue" is not necessarily to be equated with "fact in dispute". That is because, even if the accused person does not dispute the facts that support one or more of the elements of the offence, the obligation remains on the Crown to prove each element beyond reasonable doubt. Moreover, an accused person is not bound by any pre-trial pleadings. Accordingly, in this case, the Crown was obliged to prove each of the three elements that constitute an offence against s 61I. They are therefore facts in issue.

149 The only assessment of probative value made by the judge in this case was that it was "weak" or "extremely weak". He reached that conclusion on the basis of what he perceived to be the existence of a "plausible alternative explanation" for what the respondent said. A little earlier, he had said that, in the light of the alternative explanation, the admissions made by the respondent "could not be relevant to proof of the charge here".

150 What is absent from the assessment is any identification of the "fact[s] in issue" the probability of the existence of which was said to be affected by the evidence. The elements of the offence - that is, the ultimate facts in issue - for the purpose of this trial are set out above. The respondent's apologies are strongly suggestive of an acknowledgement that he had had sexual intercourse with the complainant. The evidence could therefore rationally affect the probability of the existence of the first of the ultimate facts in issue. It is not to the point that, by indicating, through his counsel, that the (disputed) issue in the trial would be consent, the respondent had impliedly admitted that sexual intercourse had occurred. First, as set out above, an accused is not bound by pre-trial pleadings. Second, also as mentioned above, whether the facts that support an element of an offence are or are not disputed, the obligation remains on the Crown to prove each element of the offence beyond reasonable doubt. The respondent's acknowledgments - even if given the benign alternative interpretation - amounted to evidence strongly probative of the first element.

151 The probative value of the evidence does not end there. The second element that the Crown must prove beyond reasonable doubt is the absence of consent by the complainant. This is the element, the judge was told, that would be most strongly in issue. Section 61HA(4)(b) of the Crimes Act expressly provides that a person does not consent to intercourse if he or she does not have the opportunity to do so because he or she is asleep. That last part of the respondent's conversation with the complainant in which he acknowledged that she might have been asleep goes powerfully to the question of consent.

152 Perhaps less powerfully, but still relevantly, that part of the conversation also goes to the third element, the respondent's knowledge that the complainant was not consenting to the intercourse.

153 For these reasons alone, even if it were legitimate to take into account the existence of the alternative explanation for the respondent's apologies, the approach to the assessment of the probative value of the evidence was flawed, as was the assessment of its probative value as weak.

154 More problematic is the reliance by his Honour on the existence of an "alternative explanation" or a "competing inference" in the assessment of the probative value of the evidence.

155 I have no difficulty, in this case, in accepting that the words used by the respondent in response to the complainant are susceptible of the interpretation for which the Crown contends. For the purposes of this appeal, I am prepared to accept that the respondent's words are susceptible of an alternative, more benign, interpretation which falls short of an acknowledgement of wrongdoing that is criminal in character.

156 I do have difficulty with the logic of the proposition that the existence of an alternative interpretation robs the evidence of the respondent's words of probative value, or diminishes its probative value. The probative value of evidence depends upon what the tribunal of fact draws from the evidence. If the jury accept the Crown interpretation, the probative value of the evidence will (as a matter of fact and reality) be high.

157 A number of provisions in the Evidence Act (s 97, s 98, s 101, s 103, s 135, s 137 and s 138) make the admissibility of evidence dependent upon an assessment, by the trial judge, of the probative value of the evidence. Two things may be said about the actual probative value to be assigned to any item of evidence. The first is that the actual probative value to be assigned to the evidence is in the province of the tribunal of fact - in most criminal trials, the jury. The second is that the actual probative value cannot be determined until all of the evidence in the trial is complete. By way of example, evidence of a positive identification of an accused person as the perpetrator of a crime may appear to have powerful probative value when it is admitted. Its actual probative value may diminish, even to the point of extinction, in the light of other evidence, whether given in cross-examination, or by other witnesses.

158 The provisions which make admissibility of evidence dependent upon an assessment of its probative value are not, and cannot be, concerned, with the actual probative value of the evidence; they must be concerned with the potential probative value of the evidence on completion of the trial, as assessed by the trial judge at the time the admission of the evidence in question - what Spigelman CJ in Shamouil called the "capability" of the evidence to affect the assessment of the probability of the existence of the fact in issue.

159 The actual probative value of any item of evidence will often be determined by reference to the credibility or reliability of the witness through whom it is given. That is the simple case. In other cases, the actual probative value of the evidence may depend on what interpretation is placed upon it - or what inferences are drawn from it. The present is such a case. As I have noted above, there is no issue that the respondent spoke the words recorded. As I have also noted above, I accept that his answers to the complainant may legitimately be interpreted by the jury as unequivocal admissions of sexual intercourse with the complainant, in circumstances where she was asleep and therefore not in a position to consent. I also accept, for the purposes of the present ground of appeal, that those answers may be interpreted as an acknowledgement of sexual intercourse with the complainant, notwithstanding that she had, on previous occasions, given a clear rejection of the respondent's advances, but in circumstances that rendered the respondent's conduct morally, but not criminally, blameworthy. The assessment of the potential probative value of the evidence must disregard the more benign interpretation and focus on the interpretation most favourable to the party tendering the evidence. That alternative interpretation is, in my opinion, for the purpose of assessing the potential probative value of the evidence, irrelevant. What the court is concerned with at the stage of determining admissibility is its potential probative value.

160 Where an item of evidence is capable of different interpretations, or is susceptible of "competing inferences", its actual probative value will depend upon what interpretation is placed on it, or what inferences are actually drawn from it. It is no part of the judge's function to make that assessment. The function of the judge is to assess the extent to which the evidence has the capacity to bear upon the proof of the fact or facts in issue. This was the approach taken by James J, with whom Rothman and Harrison JJ agreed, in R v SJRC [2007] NSWCCA 142; his Honour said:

"38 It not infrequently happens that evidence sought to be relied on by the Crown in a criminal trial is open to more than one interpretation or is capable of giving rise to more than one inference. However, provided that the evidence is capable of bearing the interpretation or of giving rise to the interference (scil - inference) contended for by the Crown, the fact that the defence can suggest some other interpretation or inference which would be consistent with the innocence of the accused does not, of itself, show that any probative value the evidence has is outweighed by the danger of unfair prejudice.

39 It is part of the function of the jury as the judges of the facts to determine what interpretation should be given to evidence they accept and to determine what inferences should be drawn from evidence they accept. It is frequently part of the function of the jury to determine which, if any, of a number of competing inferences should be drawn."

161 Obviously, in determining the admissibility of evidence by reference to probative value, a trial judge is making the assessment on the basis of the information available at the time the question of admissibility is under consideration. In R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 and R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 I described the process as an exercise that is "predictive and evaluative". The predictive element is not a prediction of what the jury will make of that item of evidence on completion of the evidence in the trial; it is a prediction of the potential value of the evidence when the mosaic of evidence is complete.

162 The exercise necessarily requires that the assessment of probative value, in that sense, be made on the basis that the evidence will be accepted as reliable and credible - that is, at its most favourable for the tendering party, or, as has been said, "at its highest" (for example, Shamouil at [87]). That is in accordance with a long line of authority.

163 The correct approach to the assessment of probative value for the purposes of s 137 has been the subject of much judicial consideration. Debate has centred around whether, and if so, to what extent, a judge is entitled (or bound), in assessing probative value, to take into account the credibility, reliability or weight of the evidence in question. There are many statements, in a variety of contexts, to the effect that reliability, credibility, and weight are not relevant to that assessment.

164 R v Carusi (1997) 92 A Crim R 52 was decided under the rules of evidence pre-dating the Evidence Act. Under the common law a trial judge had a discretion (contrasted with an obligation under s 137) to exclude evidence the probative value of which was outweighed by its prejudicial effect: R v Christie [1914] AC 545. The discretion came to be known as "the Christie discretion". Apart from the transformation of a discretion into an obligation, s 137 transplants that principle into statute. In Carusi, Hunt CJ at CL, with whom Newman and Ireland JJ agreed, said:

"It was for the jury, and not for the trial judge, to determine the factual issues at the trial ... The power of the trial judge to exclude evidence in accordance with the Christie discretion does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence of the witness upon which the Crown case depends. The trial judge can only exclude the evidence of such a witness where, taken at its highest, its probative value is outweighed by its prejudicial effect; whereas this Court may use its supervisory powers to set aside a verdict where, the issue having been left to the jury, this Court is satisfied - on the whole of the evidence - that the jury ought nevertheless have had a reasonable doubt."

165 In R v Cook [2004] NSWCCA 52 the evidence under consideration was evidence that the appellant, who was charged with an offence of threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse, had fled when he saw police arriving. The evidence was tendered as evidence demonstrating a consciousness of guilt. The appellant could only explain his flight by exposing his guilt of other offences of a not dissimilar kind and he gave evidence of the reasons for his flight on a voir dire. The trial judge admitted the evidence of flight tendered by the prosecution. In doing so, he made findings of fact, adverse to the appellant, about the explanation provided by him on the voir dire.

166 With the concurrence of Ipp JA and Adams J, I said:

"43 ... I am satisfied that it is not the role of a trial judge in NSW, under the Evidence Act, to make a finding of fact about the actual reasons for flight where such evidence is given on behalf of the Crown. That remains the province of the jury. The role of the judge in NSW, at least post-1995, is merely to determine the relative probative value against the danger of unfair prejudice that might result. In saying this, I do not mean to lay down a blanket rule that, in considering evidence on a voir dire in which the issue is the admissibility of evidence having regard to s 137, there is never any room for findings concerning credibility. There will be occasions when an assessment of the credibility of the evidence will be inextricably entwined with the balancing process. That means that particular caution must be exercised to ensure that the balancing exercise is not confused with the assessment of credibility, a task committed to the jury ..."

Those remarks were not directed to the assessment of the probative value of the prosecution's evidence, which I had earlier (at [36]) found to be "very high indeed", but to the manner in which the trial judge had approached the explanation for his conduct given by the accused on the voir dire.

167 That formulation was adopted in R v Singh-Bal (1997) 92 A Crim R 397 at 403 and R v Yates [2002] NSWCCA 520 at [255]-[256].

168 Spigelman CJ, in Shamouil, took up the issue, in an appeal brought by the Crown under s 5F(3A) of the Criminal Procedure Act. The Chief Justice reviewed the authorities, including Cook, and said:

"64 To adopt any other approach would be to usurp for a trial judge critical aspects of the traditional role of a jury. In the case of evidence of critical significance, such a ruling by a trial judge would, in substance, be equivalent to directing a verdict of acquittal on the basis that the trial judge was of the view that a verdict of guilty would be unsafe and unsatisfactory. As the High Court said in that different, but not irrelevant, context in Doney v The Queen [[1990] HCA 51;] 171 CLR 207 at 215, this is not a permissible 'basis for enlarging the powers of a trial judge at the expense of the traditional jury function'. In my opinion, the same is true if a trial judge can determine the weight of evidence when applying s 137."

169 In R v Suman Sood [2007] NSWCCA 214, Latham J, with the concurrence of Ipp JA and Fullerton J, said:

"40 Contrary to the submissions of counsel for the respondent, it was no part of the trial judge's function in assessing probative value under s 137 to have regard to competing explanations for the respondent's conduct, other than that upon which the Crown relied, even assuming that an alternative explanation was given by the respondent on the voir dire."

170 Thus, the position in NSW historically has been that in the assessment of probative value, a trial judge does not take into account questions of credibility, reliability, or weight of the evidence. It must be taken, for the purpose of that assessment, that the evidence will be accepted by the jury as reliable. It is, however, necessary to be clear about the context in which these statements have been made.

171 If it remains the case that that is the correct approach, then it was an error for the trial judge to take into account the existence of an alternative explanation, or a competing inference.

172 In Carusi the evidence in question was evidence of identification of the accused from a photo array by a witness. It was not in issue that the identification had been made; the issue was the reliability of the identification, having regard to well recognised dangers inherent in identification evidence.

173 In Cook the evidence in question was the accused's account of the reasons for his flight from police. It was not, he said, consciousness of guilt of the offence charged - it was consciousness of guilt of other offences. The trial judge allowed the prosecution evidence to be given, because he disbelieved the evidence given by the accused. (The appeal was allowed and a new trial ordered.)

174 In Shamouil, the evidence was also identification evidence. The alleged victim of the offence had positively identified the accused, but later retracted the identification. The issue was the admission of evidence of the initial identification. As in Carusi, it was not in dispute that the alleged victim had made the identification. The challenge to the evidence was under s 137 - that danger of unfair prejudice caused by the evidence outweighed its probative value. The trial judge ruled that the evidence would be excluded. In doing so, he took into account "the general unreliability of identification evidence", and what he perceived as deficiencies in the credibility of the victim. This was held to be erroneous.

175 In Sood, the evidence in question was evidence of concealment of documents relevant to a police search in a fraud investigation. There was no issue that the documents had been found in waste bins. The issue was what inferences could be drawn from that evidence.

176 The position in Victoria is now different. In Dupas v The Queen [2012] VSCA 328; 218 A Crim R 507 (at [63]), the Victorian Court of Appeal held that the decision in Shamouil was "manifestly wrong" (and that the decisions that preceded it, to similar effect, were also "manifestly wrong"). That Court held that:

"In order to determine the capacity of the evidence rationally to affect the determination of a fact in issue, the judge is required to make some assessment of the weight that the jury could, acting reasonably, give to that evidence."

That prompted this Court to reconsider its position, which it did by a bench consisting of five judges, Basten JA, Hoeben CJ at CL, and Blanch and Price JJ and myself: R v XY [2013] NSWCCA 121, to which I will come.

177 A different approach to the assessment of probative value has been taken, in a different context, by this Court, constituted by five judges: DSJ v Director of Public Prosecutions (Cth); NS v Director of Public Prosecutions (Cth) [2012] NSWCCA 9; 215 A Crim R 349. DSJ was a case in which the evidentiary issue concerned evidence tendered as coincidence evidence under s 98 of the Evidence Act. Section 98 is of general application, to both civil and criminal trials. Section 101 adds further considerations and constraints in relation to coincidence evidence tendered in criminal trials. It is important to note that the decision in DSJ concerned s 98, and not s 101.

178 Section 98 requires the exclusion of evidence tendered as coincidence evidence unless (reasonable notice having been given):

"... the court thinks that the evidence will, either by itself or having regard to other evidence adduced to be adduced by the party seeking to adduce the evidence, have significant probative value."

In that context, Whealy JA said:

"78 In this appeal the Crown has conceded that, in performing the task under s 98, a trial Judge may, in an appropriate case, have regard to an alternative explanation arising on the evidence. The Crown, however, insisted that, in so doing, the trial judge is restricted to examining whether the Crown hypothesis has cogency, that is, whether the Crown evidence is capable of being regarded as significant in its ability to prove the Crown case. If the coincidence evidence, either by itself or having regard to other evidence in the Crown case, positively and forcefully suggested an explanation consistent with innocence, then the coincidence evidence could scarcely be regarded as important or of consequence in proving the fact or facts in issue. What is required is this: the trial judge must ask whether the possibility of such an alternative explanation substantially alters his (or her) view as to the significant capacity of the Crown evidence, if accepted, to establish the fact in issue. Does the alternative possibility, in the judge's view, rob the evidence of its otherwise cogent capacity to prove the Crown's case? If it does not, the trial judge may safely conclude that the evidence has significant probative value.

79 In a practical sense, there are two avenues of approach to be taken. First, in examining the coincidence evidence (together with other material already in evidence or to be adduced) the trial judge is required to ask whether there emerges, from a consideration of all the Crown evidence, a possible explanation inconsistent with guilt. For regard to be had to the alternative explanation, it must be a real possibility, not a fanciful one. It must be a broad or overarching possibility, capable of being stated in general terms, even though it may derive from an individual piece or pieces of evidence or the evidence taken as a whole.

80 Secondly, the trial judge must ask whether that possibility substantially alters his (or her) view as to the otherwise significant capacity of the coincidence evidence to establish the fact or facts in issue. Of course, if the trial judge has already concluded that the coincidence evidence does not reach that level of significance in terms of its capacity, he will have rejected the evidence in terms of s 98. In that situation, the possibility of an alternative inference may, for the time being, be set to one side. Later in the trial, when the evidence has concluded, that possibility will become a matter for the jury to assess and determine when it comes to consider whether the Crown has proved its case beyond reasonable doubt.

81 The Crown, in making its concession, however, stressed that at no stage in this process was the trial Judge required or entitled to assess the actual weight of any part of the evidence, or to make any actual assessment concerning the probabilities of any alternative theory. Nor was the trial judge required or entitled to make a comparison of the Crown theory and the probabilities of any alternative theory. This proposition appears consistent with established authority. Any attempt by the trial judge to anticipate the actual weight the jury would attach to the evidence is prohibited, as I have explained."

179 These paragraphs were expressly endorsed by the Chief Justice. In doing so, the Chief Justice said:

"10 However, as Whealy JA has pointed out (at [78]-[81]), the trial judge in forming a view as to whether the evidence has significant probative value must consider by reference to the evidence itself or other evidence adduced or to be adduced by the party tendering it, whether there is a real possibility of an alternate explanation inconsistent with (in this case) the guilt of the party against whom it is tendered. This is because the availability of such an alternative hypothesis will be relevant to forming the view required by the section that the evidence has significant probative value. However, this does not involve either undertaking the fact-finding analysis suggested by senior counsel for DSJ or reaching a conclusion that the explanation for the coincidence proffered by the party seeking to tender the evidence was more probable than an alternative hypothesis. Each of these approaches go beyond what is required by the terms of s 98(1)(b) of the [Evidence] Act and would involve the judge usurping the fact-finding role of the jury."

Allsop P, McClellan CJ at CL and McCallum J all agreed with the reasons of Whealy JA.

180 Although it may be that DSJ is not, strictly speaking, binding on this Court as presently constituted, it would be an extraordinary step to depart from the pronouncements of a five judge bench which included the three most senior members of the Court. For the purposes of determining the admission of evidence tendered as coincidence evidence, DSJ states the law for NSW.

181 It does not necessarily follow that the identical approach must be taken with respect to contentious evidence where objection is taken under s 137. The two provisions have some marked differences.

182 As I have said above, the s 137 exercise consists of three steps. The first is the quantitative assessment of the probative value of the evidence. The second is the assessment of the danger of unfair prejudice. The third is the judgment whether the latter outweighs the former. It is a balancing exercise.

183 The exercise required by s 98 is different. Section 98, like s 137, does not arise for consideration unless the evidence has been determined to be relevant. Section 98 calls upon the court to consider, not whether the evidence has the capacity rationally to effect the assessment of the probability of the existence of a fact in issue - that having already been determined - but to take the evidence, in conjunction with other evidence already adduced or to be adduced by the tendering party, and, in the light of all that evidence, to measure the significance of the (potential) probative value. It is in this respect that a possible alternative explanation becomes relevant. It is of significance that in para [78] Whealy JA referred to an alternative explanation "arising on the evidence". A possible "alternative explanation arising on the evidence" within s 98 is not the same as "a competing inference" to be drawn from the very evidence the admissibility of which is in question. Under s 98, the court looks at the whole of the case of the tendering party (so far as it is known) in order to assess the significance of the challenged evidence. Section 98 does not require the balancing of the (potential) probative value of the evidence as so measured against any other consideration. (In criminal proceedings, such a measure is required by s 101, but that is not presently material.)

184 Accordingly, I am of the view that the manner in which this Court approached the assessment of probative value for the purposes of s 98 does not compel a similar approach in relation to s 137.

R v XY [2012] NSWCCA 121

185 In XY, two members of a five judge bench (Hoeben CJ at CL and Blanch J) applied the reasoning in DSJ to the assessment of probative value for the purposes of s 137.

186 XY was a case that had significant parallels with the present. Allegations of sexual misconduct with a child of 8 years of age were made against XY. Nine years later, at the instigation of police, the complainant made a telephone call to XY. (In fact, two telephone calls, in quick succession, were made; that was because the first call disconnected.) The objective of the telephone calls was for the complainant to engage XY in conversation in the hope that he would make relevant admissions or say something incriminating. The telephone calls were recorded pursuant to a warrant issued under the Surveillance Devices Act.

187 XY responded to the complainant, but in terms that, more so than in the present case, were equivocal. It was possible to interpret what he said as an acknowledgment of some sort of sexual activity with the complainant. There was also ample room for a different interpretation, one that did not involve admissions or acknowledgments of sexual wrongdoing with the complainant, but left open the possibility of an acknowledgment of sexual activity with a girl of high school age at a different time. There was room for doubt that XY was aware of the identity of the caller.

188 As in the present case, objection was taken to the admission of the recording of the conversation under both s 90 and s 137 (and other provisions it is not necessary here to mention). What follows is concerned with the Court's approach to s 137.

189 The judgments in XY give little comfort to any seeking resolution of the conflict in the NSW authorities, represented by Shamouil, and the Victorian decision in Dupas. Although, at [65], Basten JA said:

"... there is no compelling reason to depart from the general approach accepted in Shamouil"

that was because, in his Honour's view, the differences between the two approaches were more apparent than real. At [72], his Honour expressed the view that "no real risk of unfair prejudice arose"; this was largely because any adverse inferences that might be drawn from the alternative explanation could be readily eliminated by directions, upon which juries are presumed to act (see R v Lansdell (NSWCCA, 22 May 1995, unreported)). There was, therefore, in the view of Basten JA, "no occasion to assess the 'probative value' of the evidence". At [66], Basten JA said:

"The importance of Shamouil lies not in the precise language used (the judgment is not to be treated as a statute) but in the general principle it articulates. The operation of that principle may vary depending upon the circumstances of the case. In broad terms, the principle has three elements:

(1) in determining inadmissibility under s 137, the judge should assess the evidence proffered by the prosecution on the basis of its capacity to advance the prosecution case;

(2) it follows from (1) that the judge should deal with the evidence on the basis of any inference or direct support for a fact in issue which would be available to a reasonable jury considering the proffered evidence, without speculating as to whether the jury would in fact accept the evidence and give it particular weight;

(3) it also follows from (1) that the judge should not make his or her own findings as to whether or not to accept the inference or give the evidence particular weight."

At [67] Basten JA set out the alternative inferences available in that case, and, at [68], he held that determining which inferences should be accepted was "quintessentially" a function for the jury.

190 Hoeben CJ at CL (at [86]) expressly adopted the views of Basten JA contained in [66]-[67], and agreed that, in assessing the probative value of prosecution evidence sought to be excluded, the Court should not consider issues of credibility, reliability or weight. However, Hoeben CJ at CL went on to say:

"88 ... When assessing the probative value of the prosecution evidence sought to be excluded, ie, its capacity to support the prosecution case, a court can take into account the fact of competing inferences which might be available on the evidence, as distinct from determining which inference or inferences should be or are most likely to be preferred ..."

191 Blanch J also considered the existence of competing inferences to be relevant to the probative value of the evidence, although he added that such competing inferences must amount to a "real possibility" or be such as to "rob the evidence of its otherwise cogent capacity" ([204]). At [207] he held that:

"... the capacity of the evidence to prove guilt is compromised because of the competing inferences open when interpreting the conversations ..."

192 Price J preferred the conclusions of the Victorian Court of Appeal in Dupas: [224].

193 For my part, I adhered to the views I had previously expressed and considered that Shamouil represents the law in NSW.

194 Accordingly, by a majority (Basten JA, Hoeben CJ at CL and myself, Blanch J not expressly deciding, Price J contra) the Court decided that trial judges in NSW should continue to disregard questions of credibility, reliability and weight in dealing with the admission of evidence challenged under s 137. However, Hoeben CJ at CL and Blanch J further considered that the existence of "competing inferences" (or alternative interpretations) was relevant to the assessment of probative value.

195 It was by reason of the existence of such "competing inferences" or "alternative explanations" that Graham ADCJ determined that the evidence ought to be excluded. This was a direct reference to the judgments of Hoeben CJ at CL and Blanch J. Whether that is correct is central to the resolution of this ground of appeal.

196 I am unable to accept that the existence of "competing inferences" available to be drawn from (or alternative interpretations of) the proposed prosecution evidence has any part to play in the assessment of probative value for the purpose of s 137 of the Evidence Act. That is because of the different exercise required by (for example) s 98, and s 137. Section 98 requires an assessment of the significance of the probative value of the evidence tendered as coincidence evidence in the context of the whole of the case of the tendering party. That is why, in DSJ, it was held that the existence of alternative explanations could have a bearing on the significance of the probative value of the evidence.

197 Section 137 requires assessment of the probative value of the evidence without regard to other evidence in the Crown case (s 137 applies only to evidence tendered by the prosecution) but balanced against the danger of any unfair prejudice.

198 In my opinion, the decision to exclude the evidence based on s 137 of the Evidence Act resulted from an incorrect approach to the task required by the section. The starting point of the assessment is to assume that the inferences most favourable to the Crown will be drawn, and to assess the potential probative value on that basis, without regard to the availability of any competing inference.

199 The only potential unfair prejudice to the respondent identified by the judge was the possible "conflation" of an explanation for his conduct that, while not criminal, might be seen as discreditable with the explanation proposed by the Crown. The judge effectively discarded any possibility that directions to the jury could and would ameliorate any such prejudice. That, in my opinion, was an incorrect approach. The criminal justice system proceeds on the foundation that juries can and do abide by the directions they are given (Lansdell).

200 The probative value of the evidence, which was significant in the respects I have outlined above, was not outweighed by the danger of unfair prejudice.

201 The evidence should not have been excluded under s 137.

Criminal Appeal Act 1912, s 5F(3A)

202 I have concluded that the Director has made good his challenge to each of the rulings on evidence the subject of his Notice of Appeal. That is not the end of the matter. As indicated in the opening paragraphs of these reasons, pursuant to s 5F(3A) of the Criminal Appeal Act, in order to succeed on the appeal, it is necessary that the Director establish that either or both of those rulings "substantially weakens the prosecution's case".

203 If each, individually, has that quality, the issues raised by Nguyen do not arise for consideration. Similarly, if either, but not the other, has that quality, the issues raised by Nguyen do not arise for consideration. It is only if the conclusion is that either, taken alone, fails to reach that threshold, but, in combination with the other, would do so, that the correctness of Nguyen needs to be considered.

The telephone conversation

204 It will be convenient to start with the evidence of the telephone conversation.

205 Absent the evidence of what the respondent said in the conversation, the Crown case depends almost entirely upon the evidence of the complainant. I have set out above the manner in which the respondent's answers to the complainant in the conversation may be interpreted as admissions or acknowledgments of each of the elements necessary for the Crown case. Where a Crown case depends upon the otherwise uncorroborated evidence of a single witness, corroborative evidence may substantially enhance that case.

206 In such cases, it has been customary for judges to direct juries that evidence of the single witness must be "scrutinised with great care" before it can found a conviction: R v Murray (1987) 11 NSWLR 12 at 19; and see XY at [127]-[131].

207 It is true that s 294AA of the Criminal Procedure Act prohibits the giving of any warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant. That such a warning is not given by the judge does not mean that a jury would not take the view that, in the absence of some external evidence tending to enhance or corroborate the complainant's evidence, the heavy onus of proof imposed on the Crown had not been discharged.

208 Thus, the evidence of what the respondent said to the complainant in the conversation, if interpreted as contended on behalf of the Crown it should be, is important and potentially weighty evidence in the Crown case. Its absence from the trial would substantially weaken the Crown case.

209 Accordingly, there is jurisdiction in this Court to entertain the Crown appeal with respect to that ruling.

210 In those circumstances, in respect of the first decision the subject of the Crown appeal, I would allow the appeal and set aside the ruling.

The sexual history evidence: s 293 Criminal Procedure Act

211 A far more complex question arises in relation to the evidence that comes within s 293(4)(a) of the Criminal Procedure Act.

212 As mentioned above, the issue with which the trial judge dealt was an application by the respondent's legal representatives to cross-examine the complainant with respect to her general sexual availability. It may be assumed that, that leave having been given, it might extend to allowing Mr McManus to give evidence of his observations of the complainant's sexual interest in the stranger in the bar, with a view to laying a basis for a submission to the jury that the complainant, being prepared to agree to consensual sexual activity with one man, would also agree to consensual sexual activity with the respondent.

213 The present question is whether the admission of evidence of that nature "substantially weakens the prosecution's case".

214 Section 5F(3A) is not, as might at first be thought, limited to evidence tendered by the prosecution. If that had been the intention of the legislature, it could readily have framed the sub-section in that way. It may be equally damaging to the prosecution case erroneously to admit defence evidence, whether by cross-examination or through witnesses. There is no reason that such a ruling should or would not come within sub-s (3A), although, to the best of my knowledge, that has not previously been the subject of decision of this Court.

215 Does the admission of evidence of the complainant's sexual interest in a man other than the respondent "substantially weaken the prosecution's case"?

216 After considerable hesitation, I have concluded that it does. Admission of that evidence would deflect the jury from a proper consideration of the true issues in the trial. It would permit a false issue to be raised - the inference proposed to be advanced that, because the complainant showed a sexual interest in the stranger, she would equally have been sexually interested in the respondent. By distracting the jury from its proper task, and raising a false issue, admission of the evidence would substantially weaken the prosecution case.

217 I would therefore allow the appeal on this basis.

218 The orders I propose are:

(i) Crown appeal allowed;

(ii) The ruling that evidence of the telephone conversation between the complainant and the respondent on 12 June 2012 be excluded is vacated;

(iii) The ruling that evidence of the complainant's prior sexual experience be admitted pursuant to s 293(4) of the Criminal Procedure Act 1986 is vacated.

219 R A HULME J: I agree with Simpson J.

220 BARR AJ: I agree with Simpson J.

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Decision last updated: 07 January 2014