Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: DW v R [2014] NSWCCA 28
• Hearing dates: 10 December 2013
• Decision date: 14 March 2014
• Before: Ward JA at [1]; Harrison J at [113]; R A Hulme J at [114]

Decision

Appeal dismissed.

• Catchwords: EVIDENCE - admissibility - Surveillance Devices Act 2007 - whether recording of a conversation was reasonably necessary for the protection of the lawful interests of the complainant - whether, if within exception to prohibition in s 7 of the Act, trial judge erred in concluding that it would be admissible under s 138 of the Evidence Act 1995 as probative value of recorded conversation outweighed prejudice to accused; CRIMINAL LAW - appeal and new trial - objections or points not raised in court below - misdirection and non-direction; CRIMINAL LAW - evidence - propensity, tendency and co-incidence - admissibility and relevance - directions to jury
• Legislation Cited: Crimes Act 1900; Crimes (Domestic and Personal Violence) Act 2007; Criminal Appeal Act 1912; Criminal Appeal Rules; Evidence Act 1995; Listening Devices Act 1984; Surveillance Devices Act 2007; Surveillance Devices Act 1988 (WA)
• Cases Cited: Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2010] SASC 266; ARS v R [2011] NSWCCA 266; Christian v R [2012] NSWCCA 34; 223 A Crim R 370; Cooper v The Queen [2012] HCA 50; Crafter v Napier Kelly [1941] SASR 237; FP v R [2012] NSWCCA 182; Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72; 261 FLR 211; Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297; R v Coutts [2013] SADC 50; R v ITA [2003] NSWCCA 174; 139 A Crim R 340; R v Le [2004] NSWCCA 82; 60 NSWLR 108; 146 A Crim R 179; R v MMJ [2006] VSCA 226, 166 A Crim R 501; R v Murray (1987) 11 NSWLR 12; R v XY [2013] NSWCCA 121; Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108; Tekely v R; Nagle v R [2007] NSWCCA 75; Thomas v Nash [2010] SASC 153; 107 SASR 338; Toalepai v R [2009] NSWCCA 270; Violi v Berrivale Orchards Limited [2000] FCA 791; 99 FCR 580; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
• Category: Principal judgment
• Parties: DW (Appellant); Regina (Respondent)
• Representation: Counsel: I McLachlan (Appellant); Ms S Dowling SC (Respondent); Solicitors: Legal Aid NSW (Appellant); Solicitor for Public Prosecutions (Respondent)
• File Number(s): CCA 2009/215780
• Publication restriction: Restriction pursuant to s 578A Crimes Act 1900 (NSW) on identification of complainant

Decision under appeal

• Jurisdiction: 9101
• Before: O'Connor DCJ
• File Number(s): DC 2009/215780

Judgment

1 WARD JA: On 2 December 2010, the appellant was found guilty by a jury on all but one of 16 counts with which he had been charged. The charges related to acts of aggravated indecent assault, incitement to aggravated acts of indecency, use of a child for pornographic purposes (in contravention of ss 61M(1), 61O(1) and 91G(1)(a) and 2(a) of the Crimes Act 1900 (NSW), respectively) and possession of child pornography (in contravention of s 91H(2) of the Crimes Act).

2 Other than the last (16th) count (possession of child pornography in contravention of s 91H(2)), the charges related to conduct by the appellant from 2006 in respect of his natural daughter, who was between 12 and 14 years old at the time of the various offences. The 16th count related to images found in the appellant's possession when he was arrested. Relied upon as tendency evidence on that count only, and admitted without objection by the defence, were the pornographic images found on the appellant's computer of his daughter.

3 The offences that related to the complainant involved the appellant's conduct in touching her breasts, demanding that she show him her naked body, and demanding that she pose nude for him to take photographs of a sexual and pornographic nature. The count on which the appellant was found not guilty (count 1) was a count of incite aggravated act of indecency in contravention of s 61O(1) of the Crimes Act relating to an alleged instruction by the appellant to his daughter to sunbake topless during a trip to the beach.

4 The appellant was sentenced on 29 April 2011 on the fifteen counts on which he had been convicted and four domestic violence offences that were placed on a s 166 certificate, those being one count of common assault in contravention of s 61 of the Crimes Act (relating to conduct against his wife, the complainant's step-mother) and three counts of contravention of a prohibition or restriction in an apprehended violence order in contravention of s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The appellant was later sentenced for an additional s 166 certificate offence of failure to appear.

5 The overall sentence imposed was a term of imprisonment of 8 years, commencing on 1 December 2009 and expiring on 30 November 2017, with a total non-parole period of five years, commencing on 1 December 2009 and expiring on 30 November 2014. The earliest release date is 30 November 2014.

6 The appellant now appeals against his convictions. Although not clear from the papers before this Court, the parties conceded that leave had been granted by the Registrar for an extension of time for the filing of the Notice of Appeal and no issue was taken by the Crown as to the competency of the appeal. The Court has proceeded on that basis.

Background

7 The appellant's daughter first complained to police about the appellant's conduct when police officers attended the family home on 18 January 2009 in response to a domestic violence dispute involving the complainant's step-mother (that being the incident the subject of the common assault count that was ultimately taken into account on the first s 166 certificate).

8 Officers from the Department of Community Services (DOCS) had, however, previously spoken with the complainant (in February 2007 and June 2008) in relation to allegations received by the DOCS that she was at risk of sexual harm from the appellant. The precise circumstances in which those allegations were received by the DOCS was not made clear. There was, however, evidence at the trial from the child protection caseworker who interviewed the complainant in June 2008 to the effect that the complainant had said to her in that interview that "In primary school there was a rumour and my teacher heard and spoke to DOCS about it" and, when asked what had happened at that time, the complainant said "People just came to talk to me like this". This suggests that the reports of harm the subject of the DOCS enquiries were not the result of direct contact by the complainant with them. Certainly, when pressed on this point, there was no suggestion by Counsel for the appellant that it was the complainant herself who had contacted the DOCS.

9 The enquiries made by the DOCS did not lead to any action on its part in relation to the allegations. The evidence of the caseworker who had interviewed the complainant in 2007, referring to notes of that interview, was that the complainant had made reference to an incident where her father had rubbed cream on her and that she thought he was trying to touch her but that her father had sworn he did not mean it in a sexual way and that her step-mother had sorted it out. The caseworker who had interviewed the complainant in 2008 said that the complainant had denied that her father was touching her and raping her; and had also denied an allegation about photographs or that she and her friends had viewed pictures of naked girls on the internet. The trial judge found that the complainant had denied the allegations because she was frightened of her father, who had threatened her.

10 After the appellant was arrested and charged with common assault in relation to the January 2009 incident, and while he was on bail, the appellant left his employment and went to Western Australia. While there, the appellant contacted his wife by telephone and voice mail on a number of occasions, in which left messages saying, among other things, that it was not unlawful for him to take nude photos of his daughter.

11 After the complainant's allegations against the appellant were made to the police, the police seized two computers and two cameras (with the step-mother's consent) from the family home. Later, the complainant's brother found a USB stick in the family garage and that was given to the police. The photographs of the complainant were found on those computers/USB stick. When the appellant was ultimately arrested in Western Australia, police seized a laptop computer and USB thumb drive which contained the pornographic images the subject of count 16.

12 The Crown relied on evidence from the complainant; material from computers belonging to the appellant when the police attended the home shared by the appellant with his wife and family; the USB thumb drive found by the appellant's son in the family garage (containing nude images of the complainant); complaint evidence from the complainant's sister, her friend, and her step-mother; evidence from the sister and friend that they saw the appellant touching the complainant's breasts on numerous occasions; and a recorded message left by the appellant on his wife's answering machine claiming that it was not unlawful to take naked photos of his daughter.

13 Prior to the trial, the appellant had participated in an electronic record of interview with the police on 3 December 2009 (the record of which was Exhibit P at the trial), in which he admitted taking photographs of the complainant since she was aged 12; said that it was at her insistence; said that the complainant used to do this to extort money from him and threatened to go to the police if he did not take more photographs and pay more money to her; admitted to having paid the complainant lump sum payments of up to $300; denied assaulting the complainant; and denied having anything to do with the pornographic images of the complainant found on his computer. The appellant gave similar evidence at the trial. He claimed that the only photographs he had taken were of the complainant's breasts; that he had done so at her request and because she had body image issues; that the photographs were immediately saved onto a disc, which was then given directly to the complainant; and that his daughter had demanded money on each occasion and had threatened to make trouble for him if he did not comply with her request.

14 Relevantly, for the purposes of this appeal, the Crown also relied at the trial on a recording made by the complainant on her mobile telephone of a conversation that she said she had with the appellant (Exhibit G at the trial). There is no dispute that the recording was taken without the appellant's knowledge. The recording was made during a face to face conversation between the two (relevant when taking into account the appellant's evidence that he recognised the bird in the background of the recording). The complainant said that she had made it by taking her mobile phone, putting it on "record" and placing it in her pocket.

15 The text of the recorded conversation was as follows:

Appellant: Hi sweetie pie.

Appellant: You can do a better effort than that ok.

Complainant: Whatty, what, what, what do I have to do all up, can you explain it?

Appellant: Photos need to get done ok. Try your bikini on for me. A couple of weeks down the track (untranscribable).

Appellant: I want you to show me these regularly over the next week or so without me asking you ok?

Complainant: Uh huh.

Appellant: Alright and things are going to change ok.

Complainant: Uh huh.

Appellant: You have to be coming to me ok, if you want extra things and you want money ok. I'm not going to be constantly harassing you to come and show me alright.

Complainant: Um hum.

16 The complainant's evidence was that when the appellant said "I want you to show me these regularly over the next week or so without me asking you, okay" he pointed to her breasts.

Appeal

17 The sole ground of appeal relates to the admission into evidence by the trial judge (over the objection of the appellant) of the recorded telephone conversation made by the complainant and the instructions given by the trial judge to the jury of the use that could (and could not) be made of that recording.

Ground 1(a) Admission of the recorded conversation into evidence

18 The appellant contends that his Honour erred in admitting the recorded conversation into evidence on the basis that the recording was in breach of the prohibition contained in s 7(1)(b) of the Surveillance Devices Act 2007 (NSW) ("the Act") which provides, relevantly, that:

7(1) A person must not knowingly install, use or cause to be used or maintain a listening device:

...

(b) to record a private conversation to which the person is a party.

19 Section 7(3) of the Act provides that s 7(1)(b) does not apply to the use of a listening device by a party to a private conversation if, relevantly:

(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:

(i) is reasonably necessary for the protection of the lawful interests of that principal party, ...

20 His Honour ruled on the Crown's application to adduce this evidence on 25 November 2010. His Honour found that the above exclusion applied, as this was a recording made by a principal party to the conversation (the complainant) and was reasonably necessary for the protection of the lawful interests of the complainant. The lawful interest of the complainant that was identified by his Honour was "to protect herself from being the victim of the alleged criminal offences perpetrated by the accused".

21 His Honour went on to say that, even if he was incorrect as to the construction and applicability of the Act, the evidence was admissible pursuant to s 138(1) of the Evidence Act 1995 (NSW) on the basis that the desirability of admitting the evidence outweighed the undesirability of so doing. His Honour found the evidence to be highly probative, noting that Counsel for the appellant had fairly conceded that the evidence was both probative and important.

22 As to the probative value of the evidence, his Honour considered that a fair inference to be drawn from the recording was that it was the accused who was insisting on taking the photographs and that he would pay money in exchange for the photographs. His Honour noted that such evidence supported the complainant's evidence and was contrary to the assertions made by the appellant on the recorded message he had left on his wife's telephone (that was to be tendered without objection) to the effect that the complainant was extorting money from him and had both requested and agreed that the photographs be taken.

23 His Honour acknowledged that the complainant's contravention of the Act (assuming for this purpose that, contrary to his findings, there had been a contravention) in the making of the recording, was deliberate but he did not accept the appellant's submission that it was grave. His Honour said that it had to be assessed against the background that "it was the accused's fourteen year old daughter, recording the conversation in circumstances where it is alleged that she was the victim of being indecently assaulted and used for pornographic purposes".

• Did his Honour err in finding that the exception in s 7(3) applied?

24 The circumstances in which the recording came to be made by the complainant, shortly before the police attended the family home in response to the domestic violence dispute in January 2009, were that she had disclosed the appellant's misconduct to her friend and her friend suggested that the complainant tell her "real" (i.e., natural) mother. When the complainant had responded that her mother "won't believe me", the friend says that she suggested that the complainant record the appellant. The complainant confirmed in an electronic record of interview to the police that her friend had suggested the recording. She said that she had put the phone on record in her pocket and "then asked my dad what I had to do".

25 The complainant was 14 years old when the conversation was recorded and was living at the family home with the appellant and his wife. His Honour noted, by way of background, that the complainant was frightened of the appellant as a result of his violent behaviour; and that the appellant had convinced his wife (the complainant's stepmother) that the complainant was lying. His Honour accepted that it was as a consequence of the complainant's fear of the appellant that she had earlier denied any knowledge of the offences when interviewed by officers from DOCS.

26 The appellant submits that it was not open to his Honour to find that the recording was reasonably necessary for the protection of the lawful interests of the complainant.

"Lawful interest"

27 As to what is sufficient for a "lawful interest" within the meaning of s 7(3), there is some uncertainty in the authorities.

28 In the present case, the Crown did not advance a particular definition of "lawful interests" but submitted that it must extend at least as far as the interests of the claimant in the present case not to be sexually abused and not to be sexually exploited for pornographic purposes.

29 No assistance can be gleaned from the Explanatory Notes to either the Surveillance Devices Bill 2007 or its predecessor the Listening Devices BiIl 1984 when construing "lawful interests" in the relevant legislation.

30 In Crafter v Kelly [1941] SASR 237 Napier J, at 243, noted that the natural meaning of "lawful" will depend on the context in which the word is used, contrasting use in the sense of "permitted" - i.e., something that can be done without any infraction of the law; use in the sense of being supported by the law; and use in the sense of being "legally enforceable".

31 In R v Le [2004] NSWCCA 82; 60 NSWLR 108; 146 A Crim R 179, Adams J (with whom RS Hulme J agreed, Giles JA dissenting on this issue) held (at [83]) that the desire of a witness to protect her credibility generally; to support her credibility if she had to give evidence in a court proceeding about the matter; and to protect herself against exposure to being charged with making false allegations against other people about matters of considerable seriousness, did constitute a "lawful interest" for the purpose of that phrase as used in the predecessor to s 7(3)(b)(i) of the Act (s 5(3)(b)(i) of the Listening Devices Act 1984).

32 In Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108, Johnson J (with whom McClellan CJ at CL and Hislop J agreed) did not express a concluded view as to the meaning of "lawful interests", though suggesting that it might not extend as broadly as suggested by Branson J in Violi v Berrivale Orchards Ltd [2000] FCA 791; 99 FCR 580 at [28], where her Honour considered it would encompass "legitimate interests" or "interests conforming to law", i.e., interests that are not unlawful as opposed to "legal interests" ([126]).

33 In Thomas v Nash [2010] SASC 153; 107 SASR 338, Doyle CJ, considering the phrase "lawful interests" in an analogous provision to s 7 of the Act, expressed the view that it would not be satisfied merely by a desire to have a reliable record of a conversation [48] but went on to observe from his review of the cases that in several of the cases where the conversation related to a serious crime or an allegation of a serious crime, or to resisting such an allegation, the court was more likely to find that the recording of a conversation relating to the crime could be made in the protection of the person's "lawful interests". (Reference was made to Thomas in Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2010] SASC 266; R v Coutts [2013] SADC 50)).

34 In Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72; 261 FLR 211; at [16], Allanson J, considering the phrase "reasonably necessary for the protection of a lawful interest" in the context of the comparable s 5 of the Surveillance Devices Act 1988 (WA), distinguished "lawful interests" from "legal interests", citing Violi at [28], and said that it was not necessary that there be a legal interest in the sense of a legal right, duty or liability, noting that in Chao v Chao [2008] NSWSC 584 at [8], a recording made where a serious dispute had erupted and it was anticipated there would be a dispute as to different versions of an arrangement might give rise to a lawful interest.

35 In R v Coutts, the South Australian District Court considered a recording of a conversation by the complainant to be "for the protection of the lawful interests of that person" in circumstances where the accused was charged with numerous counts of sexual assault and assault against his former partner. The complainant alleged that the accused had said to her that he had previously been charged with rape based on the complaint of another woman but that it had been his word against hers and that even if he was recorded it could not be used in court. The recording was described as a graphic account of threats, belittlement and sounds of forced sex while the complainant was crying and in distress and pain. A separate recording was made of a conversation in which the accused told the complainant how he knew how to choke her without leaving any marks.

36 His Honour identified the complainant's lawful interests as being her interest in defending against the "extreme levels of harm and danger" she faced (at [26]).

37 In the present case, I see no error on the part of the trial judge in finding that the interest of the complainant (a child) not to be the victim of the serious criminal offences that were alleged is a "lawful interest" for the purposes of s 7(3) of the Act. Such an interest is recognised in international law (see Article 34 of the Convention on the Rights of a Child, ratified by Australia in December 1990, which refers to the protection of children from all forms of sexual exploitation and sexual abuse).

"Reasonably necessary"

38 Insofar as the discussion in Sepulveda (to which I refer below) points to the need not to adopt a construction of the Act that would undermine its primary purpose, a construction of "lawful interests" to encompass a child's interest in not being sexually exploited cannot be said to do so since the relevant question in each case will be whether the making of the recording is "reasonably necessary" for the protection of such an interest.

39 In that regard, the appellant contends that it was not open to his Honour to find that the recording was "reasonably necessary" for the protection of the complainant's lawful interests, since it was open to the complainant to have gone directly to the police. Reliance is placed in this regard on what was said in Sepulveda (at [139]).

40 In Sepulveda, the recording in question was made when the complainant was 29 years old. The offences with which the accused had been charged related to sexual misconduct against the complainant when he was aged between about 9-14 years old. The complainant said that his purpose in recording the conversation (in which general admissions were made by the accused of sexual behaviour and relationships with the complainant and his brothers during the period in question) was to "get justice for everyone" (at [48]). The accused did not deny a sexual relationship with the brothers but maintained that it was only after they were old enough to consent thereto.

41 It was argued at trial that it was reasonably necessary for the recording to be made to assist in bringing the accused to justice and to create a reliable and independent record of his admissions. The defence case was that the complainant had been motivated to extort money from the accused and that the accused had made the admissions because he feared that otherwise the complainant would harm him. There was evidence that the complainant had accepted money in exchange for the tape of the conversation (but had not given the accused the correct tape).

42 In Sepulveda (at [117]), Johnson J accepted the proposition that it was sufficient (for the purposes of the predecessor provision to s 7 of the Act) that the recording of a conversation be reasonably appropriate, rather than essential, for the protection of the lawful interests of the principal party.

43 Having noted (at [138]) that there was no impediment to the complainant approaching police with a complaint as to the alleged sexual assault of him and his brothers, and that a consequence of such a complaint may have been an application by the police for a warrant to be issued pursuant to which the conversation would have been lawfully obtained, at [139] Johnson J said:

Having regard to this statutory context, and allowing for a construction that attributes to the words "reasonably necessary" the meaning "reasonably appropriate", it is difficult to see how the factual findings in this case are capable of satisfying the statutory requirement for reasonable necessity. The test, of course, is an objective one. Reasonable necessity is to be judged objectively upon bases or grounds that exist at the time of the recording. The ability of [the complainant] to approach police with his complaints, rather than move directly to himself record the conversation, stands in the way of a finding of reasonable necessity in this case. ...

44 His Honour found that error of law had been demonstrated on the part of the trial judge in that, on the findings of fact and conclusions reached by the trial judge, it was not open to the trial judge to find that the recording of the conversation was "reasonably necessary" so as to fall within the statutory exemption from the prohibition against such recordings ([144]).

45 Johnson J noted (at [142]) that the purpose of the legislation there under consideration (the Listening Devices Act) was to protect privacy, by prohibiting the covert recording of a conversation other than (usually) by way of a warrant under the statute; expressed the opinion that the lawful interests there identified by the trial judge were of a "somewhat nebulous kind"; and said that the construction of the trial judge would leave open the covert recording of a conversation by any person who alleged that he or she was a victim of crime and spoke to the alleged offender for the purpose of obtaining admissions of offences. His Honour emphasised that it was important that a construction of the legislation not be adopted that would serve to undermine, in a significant respect, a primary purpose of the legislation.

46 In the present case, the appellant submits that the same reasoning as that employed in Sepulveda applies in that it was open to the complainant to have complained to the police. The appellant submitted that children make complaints to the police and to persons in authority on a daily basis (something of which I infer this Court was invited to take judicial note). Emphasis was placed on the fact that the complainant had previously been in contact with DOCS and that she had her own mobile phone from which she could have contacted DOCS or the police directly if she so desired.

47 As to this submission, there is no evidence that the complainant had instigated the earlier complaints to DOCS (though complaints by her to others as to her father's conduct may well have been the source of the rumours that led to the risk of harm reports to DOCS) or that she knew how to go about contacting DOCS for the purposes of making a complaint (the evidence being that the previous contact was when DOCS caseworkers came to her school to interview her). The fact that the complainant had her own mobile phone does not mean that, as a 14 year old, she should be expected to have understood the legal avenues that she could take in order to have her complaints investigated.

48 There was no evidence from the complainant as to her purpose in making the recording, nor was she cross-examined as to her motive in so doing. She did not immediately take it to the police (or to any authority figure). Rather, her evidence was that she hid the recording by renaming it in a different file so that her father could not access it. Nor did she, as was the case in Sepulveda, seek to obtain money in exchange for the recording. Given the relatively short period of time between the making of the recording and the occasion on which the complaint was made to the police (about a month), there is no reason to infer that the recording was not made for the purpose of the complainant having some evidence which she could use to convince others to believe her or to corroborate her word (as was the context in which it was suggested that she make the recording in the first place) or to protect herself from further assaults. The fact that, unlike R v Coutts (at [26]), the recording was not made on the "spur of the moment" during the course of an assault does not change my conclusion on this.

49 In my opinion, it was open to the trial judge to infer that the recording was made for the purpose of the protection of the complainant's lawful interest in protecting herself from continuing abuse and exploitation. As to whether it was reasonably necessary for that purpose for the recording to be made, there is a clear distinction between the position in Sepulveda and that in the present case.

50 In Sepulveda, the recording was made by an adult, some years after the alleged assaults. Here, it was made by a child and it was made while the assaults were ongoing. The recording was made prior to any investigation by the police of allegations of sexual misconduct by the appellant. His Honour accepted that the complainant was frightened of the appellant, with whom she was living, as a result of his violent behaviour and that the only other adult in the house had been convinced by the appellant that she was lying. Further, his Honour accepted that the response by the complainant when interviewed by DOCS as to the allegations of harm was as a result of her father's violence.

51 The Crown submitted, and I accept, that it was not practicable in the circumstances of this case for the complainant to contact police in order to seek to arrange a warrant to record conversations with her father.

52 I note that in R v Coutts, the Court at [26] (in obiter insofar as the legislation did not there require that the recording be "reasonably necessary" for the relevant purpose) considered that it was not a realistic option for an adult complainant, who was trapped in a violent and abusive relationship, to report her predicament to the police. Here, the findings of his Honour point even more strongly to such a conclusion where the complainant was a child.

53 In my opinion, given the complainant's age and the family circumstances, his Honour did not err in concluding that the making of the recording was reasonably necessary for the protection of the complainant's lawful interest in protecting herself from being indecently assaulted and photographed for the purposes of child pornography, within the meaning of s 7(3)(b)(i) of the Act. I do not consider that such a conclusion subverts or undermines the privacy objectives of the legislation.

54 That disposes of ground 1(a) of the appeal. However, issue was also taken with the contingent finding by his Honour to the effect that, even if the recording contravened s 7 of the Act (because, contrary to his Honour's conclusion, the exclusion did not apply), the evidence would be admissible in the exercise of his discretion under s 138 of the Evidence Act. I turn to that issue.

• Did his Honour err in the exercise of discretion under s 138?

55 The appellant accepts that in order to succeed in the contention that his Honour erred in concluding that the evidence should not be excluded pursuant to s 138 of the Evidence Act, he must demonstrate that his Honour erred in the exercise of his discretion in accordance with the principles described in House v The King [1936] HCA 40, 55 CLR 499.

56 The basis on which the appellant submits that the exercise of his Honour's discretion miscarried is the contention that the probative value of the recorded conversation was weak and hence his Honour should have concluded that it was outweighed by the prejudice to the appellant of the admission of the evidence.

57 Two issues were raised on appeal in this regard. First, it was submitted that there was a doubt as to whether it was the appellant's voice on the recording. Second, it was submitted that to the extent that there was a plausible and competing inference favourable to the appellant's case which could be drawn from the contents of the recorded conversation, this undermined the probative value of the evidence.

58 As to the first, it was submitted that the appellant's evidence was ambiguous as to whether he conceded that it was his voice that had been recorded. In cross-examination there was the following exchange (AB 601.3-46):

Q. You see you now know that she recorded a conversation between you and her?

A. Yes, I do know that now.

...

A. [After agreeing that he had heard the recording played to the jury and had seen a transcript of it; and had been taken to certain statements that it was put to him he had been recorded as saying] No recollection of that conversation at all.

Q. Well, you recognised the bird in the background the bird in the background and you have recognised your own voice saying: "Hi Sweetie pie"?

A. My own voice, I recognised the bird in the background, which most likely would be our house. But I can't be sure of that. I have no recollection of that conversation at all. (my emphasis)

Q. So you have no explanation for what you would have been taking about, saying if you want money?

A. I have no recollection of that. I have no - I don't know what she was talking about and I don't know even 100% if that was me.

Q. Somebody else?

A. I have no idea. I have no recollection of that conversation. For a start, I never called [the complainant], "Sweetie pie", it's always cutie pie. So I have no recollection of that conversation.

Q. Are you just telling the jury that because you can't think of an excuse?

A. No. I am telling the absolute truth. I have no recollection of that conversation ever taking place.

59 It is submitted for the appellant that the statement italicised above is ambiguous as to whether the appellant accepted that the voice on the recording was his own or was simply repeating the question. Even accepting that the answer in question does not, as recorded on the transcript, appear to be an unqualified acceptance by the appellant that it was his voice on the recording, and that he did not know "even 100%" that it was him, there was an initial acceptance that the recorded conversation was at his home (since he said he recognised the bird in the background). No application was made at trial by Counsel for the defence to exclude the evidence under s 137 of the Evidence Act (the recording having been admitted, following the ruling on a voir dire, prior to the appellant's cross-examination).

60 As the Crown submits, the trial judge cannot be said to have erred in not taking this evidence into account, when weighing the probative value of the evidence against any unfair prejudice to the appellant at the time that the recording was admitted into evidence, since there was no suggestion at that stage that the appellant challenged that it was a recording of his voice.

61 As to the second matter, Counsel for the appellant accepted that the far more likely inference to be drawn from the conversation was one that was consistent with the Crown's case. Further, it was conceded by Counsel for the appellant that any alternative inference available from the conversation (the Crown contending that there was none) was one that would have been favourable to the appellant (unlike the position in R v XY [2013] NSWCCA 121, to which the appellant referred in support of his submission).

62 His Honour found that the probative value of the tape recording was high because it supported the complainant's evidence that it was the appellant who had instructed the complainant to show him her breasts and who had insisted on taking photographs for which he paid her money, contradicting the recorded message left by the appellant on his wife's answering machine to the effect that the complainant was extorting money from him.

63 At trial, Counsel for the defence had conceded that a fair inference to be drawn from the recorded conversation was that demands were being made by the accused to the complainant about photographs to be taken rather than the other way around. That must be correct, given the statements in the recording that the speaker was "not going to be constantly harassing" the complainant to come and show him (her breasts) and that if she wanted money she had to do so. Statements of that kind are wholly inconsistent with the appellant's defence that he had taken photographs of the complainant's breasts (albeit denying that he had taken the photographs showing the complainant in erotic poses) at her request and that she was extorting money from him.

64 The probative value of the recording was clearly high. The Crown further notes that no argument was put to his Honour at trial as to any particular unfair prejudice to the appellant from the admission of the evidence.

65 In my opinion, the trial judge has not been shown to have erred in the conclusion reached that, if the tape recording was prohibited by the Act, in the exercise of his discretion it should nevertheless be admitted into evidence as its probative value outweighed any prejudice to the appellant.

66 A similar conclusion was reached in ARS v R [2011] NSWCCA 266, where complaint was made as to the admission into evidence of a recording made, without the knowledge of the accused by the complainant, of a conversation in which general statements were made by the accused that could be characterised as general admissions; the Court accepted that there had been a contravention of the legislation; but the evidence was nevertheless held to have been admissible pursuant to the exercise of discretion under s 138. There, the complainant was 16 years old at the time the recording was made; the offences related to conduct when the complainant was aged between 11 and 16; the investigation was in the hands of the police when the recording was made and the trial judge had noted that the means by which such a recording could be obtained by warrant were available upon proper application. On appeal, the challenge to his Honour's exercise of discretion was unsuccessful.

67 Even if the recording was made in breach of the Act, his Honour did not err in concluding that it would have been admissible in the exercise of his discretion. Ground 1(a) is therefore not made out.

Ground 1(b) Failure properly to direct the jury regarding the recorded conversation

68 The second limb of the sole ground of appeal relates to the adequacy of the direction given to the jury as to the recorded conversation.

69 The trial judge, in summing up to the jury, noted that the Crown case depended largely on the evidence of the complainant and directed the jury that it must exercise caution before it could convict the accused "because the Crown case largely depends upon you accepting the reliability of the evidence of a single witness". The trial judge emphasised this again in what was accepted by the appellant to be a standard Murray direction (R v Murray (1987) 11 NSWLR 12).

70 His Honour addressed the jury on the relevance of evidence of other uncharged acts (evidence of the complainant that the accused would regularly make her show him her body, touch her breasts and make her pose for pictures for him, other than the matters charged in the indictment; and evidence from the sister and friend that they observed conduct other than that with which the accused was charged), namely, as matters placing in a wider context the particular acts with which the appellant was charged.

71 His Honour then went on to give what the appellant accepts was an appropriate general anti-tendency direction. The evidence to which his Honour referred in the course of that general anti-tendency direction included the evidence that the appellant would repeatedly make the complainant pose for photographs for him.

72 The trial judge then went on to address the tendency evidence. In his summing up, the trial judge clearly distinguished the tendency evidence from the context evidence the subject of the previous general anti-tendency direction.

73 The tendency evidence to which his Honour referred was the evidence of child pornography found on the computer seized in Western Australia, the images found on the computer seized from the appellant's home in New South Wales and the evidence in the complainant's interview that he had previously touched her on the vagina; made her shave her vagina; and repeatedly took photographs of her when naked. There was no reference by his Honour in this context to the recorded conversation (nor had it been the subject of a tendency notice by the Crown). Counsel for the appellant points out, however, that the content of the recorded conversation went to the repeated taking of photographs of the complainant.

74 The trial judge gave the jury a direction that this evidence (i.e., the tendency evidence) could only be used if the jury was first satisfied of the evidence beyond reasonable doubt and then only for the limited purpose of showing that the accused had the tendency claimed by the Crown: namely, the tendency to act in a particular way, which the trial judge described as being "indecently [to] assault his daughter, store child pornography on his computer or flash drive; and [incite] her to commit acts of indecency".

75 Insofar as Counsel for the appellant, in submissions on the appeal, queried what were the counts to which evidence of the complainant's police interview could be taken into account as tendency, the direction of the trial judge had thus indicated that the interview could be relied upon as tendency in relation to each of the counts involving conduct against the complainant.

76 The first reference to the recorded conversation was in the trial judge's summing up in relation to counts 6-15 (which related to the pornographic images of the complainant). The trial judge said:

The Crown puts particular emphasis in its submission to you on the recorded conversations [sic] between the complainant and the accused which is exhibit G.

The Crown says in effect that you can draw the inference that it was the accused and not the complainant who was making the request for photographs and for the complainant to show the accused her breasts.

The Crown says to you that you would not accept the accused's evidence that he was the victim of a conspiracy set up by his wife and daughter and his brother or the inference that it was his son ...or friend ... or any of the other persons that came to the house as being responsible for taking the clearly pornographic photographs of the complainant.

77 The appellant contends that the general anti-tendency direction given by the trial judge was not sufficient where the evidence to which his Honour had there referred was capable of being construed as a general admission of all counts (submissions T 9.26), including the counts that did not involve the taking of photographs. More particularly, it was submitted that where there was a risk that the recorded conversation could be relied upon as tendency evidence the jury should have been given a specific anti-tendency direction in relation to this evidence.

78 The Crown contends that the evidence of the recorded conversation was not sought to be, and was not, used as evidence of tendency and that the jury was not invited to engage in tendency reasoning in relation to that evidence.

79 In ARS, the scope of the direction required to be given to the jury in relation to evidence similar to that in the present case was considered. There, it was noted that the Crown had adduced the evidence of the taped conversation not on the basis of tendency evidence but on the basis of a general admission. The trial judge directed the jury that if it found that the recording amounted to a general admission by the accused of sexual conduct towards the complainant then whilst that might not refer to any particular episode that evidence of admission could properly support the occurrence of the conduct charged and described in the indictment. There was no error found in the approach adopted by the trial judge in that regard.

80 As to the risk that the evidence could be used as tendency evidence, the Court found that the trial judge's anti-tendency direction adequately indicated to the jury the issue to which the evidence could be put and the matters of which they had to be satisfied before they made use of it.

81 The appellant relies, however, upon what was said in Christian v R [2012] NSWCCA 34; 223 A Crim R 370, where more than a general anti-tendency direction was required. In Christian, McClellan CJ at CL, with whom Latham and Harrison JJ agreed, considered the directions that should have been given as to the use that could be made of recorded conversations (referred to as the pretext conversations) which the prosecution submitted were capable of being admissions of guilt by assent or concurrence in what the complainant had put to the accused in the course of that conversation. There, the accused had admitted to a sexual relationship with the complainant but denied that this had occurred when the complainant was a child. The accused had denied in a police interview ever having had oral or anal sex with the complainant.

82 McClellan CJ at CL held that the trial judge was required to approach the issue as to the use of the evidence in the manner endorsed in R v MMJ [2006] VSCA 226, 166 A Crim R 501. This required the trial judge to give directions which identified the particular aspects of the pretext conversations that were relied upon by the Crown as constituting "admission of guilt" of any of the counts; which directed the jury to consider those particular parts of the conversation in the context of the whole conversation; and which reminded the jury of available alternative explanations for the accused's answers and to consider whether or not those responses were in the context of a mature relationship rather than one in breach of the law and, accordingly, whether they supported the complainant's evidence with respect to any particular alleged offence (at [83]).

83 At [84], his Honour went on to refer to the separate risk that the jury would engage in tendency reasoning, noting that it was not in dispute that there had been sexual activity, although the precise nature of that activity and the occasions on which it occurred were disputed, and that what the jury had to decide was whether the activity alleged had taken place before the complainant turned 10, or 16, years. His Honour noted that the nature of the assertions and the significance of the response and its relationship to any of the particular charges was not considered.

84 As to whether the Crown was seeking to rely on the recorded conversation as tendency evidence, the appellant points to the submission made by the prosecutor at the time of the voir dire to the effect that the recorded conversation demonstrated that the appellant was doing exactly what the complainant said that he was doing. That indicates that reliance was sought to be placed on the conversation as corroboration of the complainant's evidence.

85 The references made by the prosecutor to the recorded conversation in closing address were consistent with this.

86 The Crown noted that what was said in the recorded conversation ("show me these regularly over the next week or so without me asking you okay") was in keeping with the evidence of the complainant's sister as to what the complainant told her the appellant had said (that the complainant should have known that he wanted to look at her breasts and that things were going to change).

87 The Crown referred to the statement in the recorded conversation to the effect that "you have to be coming to me okay if you want extra things and you want money okay; I'm not going to be constantly harassing you to come and show me, all right" and said:

What's the explanation for that - there is only one, the complainant says, "I recorded that to show as an example of what it was that he would repeatedly require of me". What does he say, "I don't remember it".

Ladies and gentlemen, I suggest that that alone is extremely damning but the accused has given a version.

88 Pausing there, on my reading of the address what the prosecutor suggested was extremely damning was the statement by the appellant that he was not going to be constantly harassing the complainant for her to come to him to show him (her breasts) and that if she wanted extra things or money she had to come to him - statements inconsistent with the defence case that his daughter was the one requesting the photographs be taken and demanding or extorting money from him (not the appellant's professed inability to remember the conversation).

89 After an adjournment, the prosecutor continued as follows:

Ladies and gentlemen, we got to the stage where I had just suggested to you that some of the reasons why you'd believe that the complainant was telling you the truth because the accused did take photos of her naked on his own admission; that he did used to look at her very often naked; that [the sister] in fact observed count 4 take place as well as other things; that [the friend] observed him possibly hundreds of times touching her breasts but perhaps the most damning thing is that phone message - that phone recording of the complainant, "photos need to get done. I want you to show me these regularly over the next week without me asking you and you have to be coming to me, okay, if you want extra things and you want money, okay. I am not going to be continually harassing you".

There's another part of that too that I neglected to points [sic] out to you that he is also reported as saying, "All right and things are going to change, okay". Now, you'll remember repeated references by the complainant that the accused considered her to have a bad attitude and things were going to change there ladies and gentlemen is a recording of him doing just that.

90 Finally, when referring to Count 5, the prosecutor referred to the complainant's evidence that when the appellant said "do you want to show me your boobs?" and she asked him why the appellant had said "[b]ecause we've got to get rid of your attitude", the prosecutor said:

... exactly in keeping I suggest with the recording that she made - that's a different incident but it is exactly in accordance with the recording that she made on her phone.

Those are the reasons I suggest you would believe the complainant. All of the corroborated stuff ...

91 The appellant submits that in the present case the jury was actively encouraged by the Crown to engage in tendency reasoning and there was an absence of directions as to how this evidence could be used by the jury and for which particular offence or offences. The Crown submits that the recorded conversation was relied upon as a general admission and as corroboration, not as tendency evidence, and that there was not a real risk that the jury would engage in tendency reasoning in relation to this evidence.

92 It is submitted by the Crown that the context direction given earlier on the same topic (the appellant's request to see the complainant's breasts) sufficiently alerted the jury to the danger of impermissible tendency reasoning in relation to evidence on that topic such that no tendency warning was required in relation to it (referring to Toalepai v R [2009] NSWCCA 270 at [47]).

93 It is clear from the transcript that the use sought to be made by the Crown of the recorded conversation was primarily to corroborate the evidence given by the complainant as to the circumstances in which the appellant had taken photos of her breasts and had required her to show him her breasts. This was in the context that the appellant did not deny having taken photos of his daughter's breasts (though he did deny taking the photographs of more erotic poses by his daughter) and did not deny having seen her naked. The recorded conversation was thus not relevant to the fact that he had done those things on repeated occasions; its significance was that it was inconsistent with the appellant's assertion that he was doing so at the complainant's request and that she was extorting money from him as a result.

94 There was not a real possibility that the jury might use the recorded conversation as manifesting a tendency of the appellant to touch his daughter's breasts (the subject of counts 2 and 5); nor could it have realistically been used as conduct that was relevant to the possession of child pornography charge relating to images of other children (count 16). The conduct of taking photographs and viewing his daughter's breasts was, relevantly, admitted. The recorded conversation went relevantly to the question of at whose instigation the admitted conduct was engaged in. Insofar as the recorded conversation related to showing the appellant the complainant's breasts, it did not go to any tendency of the appellant to take other pornographic photographs of the complainant and this was not suggested by the Crown.

95 I am not satisfied that there was a real risk in the present case that the jury would misuse the recorded conversation. Its significance was in contradicting the appellant's version as to why the photographs were taken. The general anti-tendency direction was in my opinion adequate in the present case.

96 It is also submitted by the appellant that the jury should have been specifically directed that if there was a reasonable possibility that the recording did not involve the appellant they should not have regard to its contents. As to this, no such direction was sought at trial and the Crown submits that rule 4 of the Criminal Appeal Rules applies. I consider that below.

Application of Rule 4 of the Criminal Appeal Rules and the proviso in s 6(1) of the Criminal Appeal Act 1912

97 The Crown submits that even if the recorded conversation should not have been admitted in evidence, the Court should apply the proviso to s 6(1) of the Criminal Appeal Act and, similarly, that if there was a failure to give a specific anti-tendency direction (or a direction to the jury as to the possibility that it was not the appellant's voice on the recorded conversation) then rule 4 of the Criminal Appeal Rules and/or the proviso to s 6(1) should be applied. It was submitted that no substantial miscarriage of justice has occurred, reliance being placed on the overwhelming nature of the case against the accused.

98 Reference was made to the explanation of the rationale for rule 4 in Papakosmas v R [1999] HCA 37; 196 CLR 297 (at [72]) per McHugh J and to the observation of Bathurst CJ in ARS at [148] that the requirements of the rule are not mere technicalities.

99 The Crown points to the fact that no objection was taken, no any request for a redirection as to the matters in respect of which complaint is made in relation to the trial judge's summing up as a reasonably reliable indicator of its fairness and adequacy (referring to Tekely v R; Nagle v R [2007] NSWCCA 75 at [89]; R v ITA [2003] NSWCCA 174 at [90]; 139 A Crim R 340 at 354; and FP v R [2012] NSWCCA 182 at [72]).

100 Emphasis is placed by the appellant on the fact that the case against him was substantially based on the evidence of the complainant, noting that the trial judge directed the jury to exercise caution before convicting the appellant because the Crown case largely depended upon acceptance of the reliability of the evidence of a single witness (the complainant).

101 The question, when considering rule 4 is whether there has been a miscarriage of justice in that the appellant has lost a real chance of acquittal; for the purposes of the proviso to s 6(1) of the Criminal Appeal Act the question is whether the Court is satisfied that no substantial miscarriage of justice has occurred. The task for an appellate court, when considering the application of the proviso, was outlined in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 (at [41]) and emphasised again in Cooper v The Queen [2012] HCA 50 at [20]-[21].

102 The Crown points to the remarks on sentence by the trial judge and, in particular, his Honour's description of the Crown case as "quite overwhelming". Relevantly, his Honour made this observation on the basis that the complainant was a convincing witness "supported as she was by the evidence of complaint, and the admissions of the accused that he did take photographs of the complainant when naked". Earlier in his remarks on sentence, the trial judge described the complainant as "an impressive witness who gave her account of events frankly and without embellishment". His Honour also referred to "[t]he recording made by the complainant, [the appellant's] ownership of the laptop, [the appellant's] lack of credibility in his explanations to the interviewing police and his flight from New South Wales to Perth which no doubt affected his credibility", earlier having referred to the evidence as to the appellant's exclusive use of the laptop.

103 The complainant's evidence was supported by contemporaneous complaints made to her friend and to her sister; and by evidence of the friend's mother as to the complainant's response when her friend told her friend's mother about the allegations and that there had been about four occasions when there had been discussion in her presence of what the appellant had been doing. There was evidence from both her friend and her sister who witnessed the appellant touching the complainant's breasts.

104 The Crown also points to the appellant's admissions that he took some but not all of the naked photographs of the complainant; his evidence that he thought there was nothing wrong with taking naked photographs of his 13 or 14 year old daughter; and his admission that he had paid the complainant for the photographs he took of her (although he claimed that he was being blackmailed). The appellant also admitted that he had rubbed moisturising cream on his daughter's body but denied rubbing it on her breasts; that he talked to the complainant about the size of her breasts and the fact that she had stretch marks on her breasts; and that she regularly showed him her breasts and he did not need to ask her to show him her body (because she was his daughter).

105 The trial judge, who had the advantage of seeing both the complainant and the appellant give evidence, said in the course of his remarks on sentence that the appellant had been "exposed in the course of the trial on a number of occasions as being untruthful" (there, in the course of accepting without hesitation the wife's evidence of events) and that he suffered a "lack of credibility in his explanation to interviewing police".

106 In relation to count 16 (the possession of child pornography not relating to images of the complainant), there was admitted in evidence without objection the pornographic images of the complainant (as tendency evidence).

107 The trial judge considered it not surprising that the appellant's explanation as to the explicit pornographic images of the complainant (that they must have been taken by his son or his son's friends) was rejected by the jury.

108 It is submitted that in those circumstances, even if the recorded conversation was wrongly admitted, or the trial judge failed to give the proper direction in relation to that evidence, it cannot be said that the appellant lost a real chance of being acquitted or that there was a substantial miscarriage of justice.

109 The appellant contends that the evidence of the complainant's sister and friend was not cogent evidence in support of the complainant (the former, because she said that she was "not sure" when asked if the incident she had seen could have been "an accidental sort of touching"; the latter, because of her answer that she had seen the appellant touch the complainant's breast some 500 or 600 times). The appellant's submission was therefore that this case remained a case of the kind considered in Christian, where the case was almost entirely confined to the evidence of the complainant.

110 The jury had the benefit, which this Court does not have, of seeing not only the complainant but also those supporting her version of events give evidence; as well as the advantage of seeing the appellant give evidence. The recorded conversation was relevant in corroborating the complainant's evidence but there was ample corroboration elsewhere of that evidence. It was also relevant in putting the lie to the appellant's claim that he was being blackmailed to take the photographs that he admitted taking but this was a far-fetched explanation in any event. Some of the voicemail messages left on the wife's answering machine (to which there was no objection) support the view that the appellant's claim of extortion was not credible. Further, the recorded conversation could not have been used to convict in relation to count 16 and had limited if any relevance to the indecent touching counts.

111 Having read the transcript of proceedings and the material put before this Court on appeal, I am satisfied that even if (contrary to the conclusion I have reached) the recorded conversation should have been excluded or that there should have been a specific anti-tendency or other direction as to the use of the recorded conversation, the appellant was proved beyond reasonable doubt to be guilty of each of the offences on which the jury found him guilty and therefore there has been no substantial miscarriage of justice and the appellant has not lost a real chance of acquittal.

Conclusion

112 The appeal should be dismissed.

113 HARRISON J: I agree with Ward JA.

114 R A HULME J: I agree with Ward JA.

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Decision last updated: 14 March 2014