R v DRF

1. [1]

   LEEMING JA: I have had the considerable advantage of reading Simpson JA’s judgment in draft. I agree with Simpson JA that the ruling by the primary judge substantially weakens the Crown case, such that s 5F(3A) of the Criminal Appeal Act 1912 (NSW) is satisfied. I also agree that the preliminary ruling of the primary judge under s 139 of the Criminal Procedure Act 1986 (NSW) should be set aside, and that his Honour’s earlier decision of R v LDV (No 2) [2013] NSWDC 215 is an erroneously narrow approach to the admissibility of evidence obtained by covert means. That decision should not be followed. I agree that in the circumstances of this prosecution, so far as they presently appear from the record, the recording should not have been excluded under s 90 of the Evidence Act 1995 (NSW) as unfair.

2. [2]

   I acknowledge the force of Simpson JA’s observation that the complainant could have confronted his stepfather in precisely the same way that he did, but without sound recording facilities, and subsequently given testimonial evidence of what each said at least to the extent that there were admissions. However, two additional considerations tend to qualify the force of that observation. First, as Simpson JA observes, whether or not the complainant was an “agent of the state” was conceded and therefore not the subject of argument: cf R v Burton [2013] NSWCCA 335 at [96]-[126]. Especially where it may well be that the hearing at first instance and on appeal proceeded on a false premise as to one aspect of that test, this appeal is a less than optimal vehicle to sustain generally applicable propositions as to what is or is not “unfair” for the purpose of s 90 of the Evidence Act.

3. [3]

   Secondly, in every case involving a surveillance device, the complainant will be aware of the fact that a recording is being made, while the accused will not. There is inevitably an element of deception taking place. It is established that those facts alone do not render the use of the recording unfair: see for example Em v The Queen [2007] HCA 46; 232 CLR 67 at [78] and [116]. However, in most if not all cases where a complainant is equipped with a lawfully authorised surveillance device to record a conversation, the complainant will be motivated in part by animosity to the accused; this distinguishes the position from that of an undercover police operative. I would not lightly conclude that in no circumstances can there be s 90 unfairness.

4. [4]

   I can readily imagine a spectrum of more or less deceptive conduct by the complainant which may at least arguably lead to the use of the recording being unfair (I am not to be taken to be implying that any of what follows applies to the particular complainant in this appeal). The complainant may choose a time at which the accused is particularly vulnerable (for example, because under the influence of legal or illegal drugs) which may not be apparent on the recording. More subtly, the complainant may use words with a special meaning, or which are deliberately ambiguous. The complainant’s words may be accompanied by unrecorded gestures or facial expressions so as to enhance the ambiguity of what is conveyed with a view to controlling the subject matter and content and apparent meaning of the conversation. I do not regard the ambiguities to which I have referred as academic. It is sufficient to consider a case where a complainant believes correctly that he or she was indecently assaulted by the accused, but further believes incorrectly that he or she was much more seriously violated as well. To my mind, it is easy to see how a complainant motivated by animosity and with the knowledge and desire to obtain as damaging an admission as is possible may in any particular case engage in conduct which could render the recording unfair.

5. [5]

   I am not expressing a conclusion that such tactics would, or would not, amount to unfairness. That has not been argued in this appeal. I merely hold the view that I would prefer not to decide issues of that nature until the question arises in a particular case.

6. [6]

   What is critical in this appeal is that the accused knew that he was the subject of an ongoing police investigation, in respect of which he had retained solicitors, and, it may be presumed, had the benefit of legal advice. At the same time that the accused's solicitor advised that he would not be participating in a police interview, a copy of a statement made by the complainant's mother was requested. The statement by his mother includes her confronting her husband over the allegations made by her son, and his response: “[p]art of this is true, the majority of it is not true. I did not penetrate him. I didn’t threaten him. I did play with him”. I am comfortably satisfied that the accused believed that there was every possibility that his stepson was a complainant.

7. [7]

   In those circumstances as disclosed in the materials in this appeal, there was no unfairness within the meaning of s 90 for his lawfully recorded conversation with the complainant to be tendered against him.

8. [8]

   SIMPSON JA: Pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW), the Director of Public Prosecutions (“the Director”) appeals against a decision of Colefax DCJ in the District Court on 12 September 2014 to exclude certain evidence upon which the Crown sought to rely in a pending trial of the respondent on charges of sexual misconduct against the complainant: R v DF [2014] NSWDC 149.

9. [9]

   Section 5F(3A) is in the following terms:

10. [10]

    The Director does not suggest that the decision to exclude the evidence eliminates the prosecution case. He contends that it substantially weakens the prosecution case. That is in issue. The jurisdiction of this Court is therefore in issue. Whether the decision has the character for which the Director contends is a matter for later determination.

Background

1. [11]

   The following includes an account of the material facts alleged by the Director. It is not intended to represent any finding as to disputed fact.

2. [12]

   The complainant is the step-son of the respondent. He was born in 1970, the youngest of three children of his mother (“RF”) and father. When he was 2 years of age his parents separated. RF commenced a relationship with, and eventually married, the respondent. Initially, the complainant and his sisters lived in Sydney with their father, but subsequently moved to live with RF and the respondent on the far south coast of NSW.

3. [13]

   From about 1979, when the complainant was 9 years of age, and for a period of about 3 years, the respondent developed a practice of entering the complainant’s bedroom and engaging in various sexual acts. These began as indecent assaults but progressed to anal sexual intercourse and fellatio. This behaviour ceased somewhat suddenly, in early 1982. The complainant continued to live with RF and the respondent. Arising out of this conduct, the respondent is charged with three counts of indecent assault, two counts of buggery, and one count of sexual intercourse without consent.

4. [14]

   In 1987, at the age of 17, the complainant disclosed (in general terms) the assaults to three friends. Two of these friends have provided statements confirming that the complainant made such disclosure. The disclosures do not contain any detail of the nature of the sexual acts of the respondent. It was common ground in the appeal that this evidence would not be admissible in the prosecution case unless the respondent’s legal representatives cross-examined the complainant to suggest fabrication or reconstruction: see Evidence Act 1995 (NSW), s 108.

5. [15]

   Not long after the disclosure, the complainant also disclosed to RF something of the sexual misconduct. Again, he gave virtually no detail of these allegations. RF appeared not to believe him, and nothing more was said. RF has provided a statement. The statement contains evidence of two conversations that she said she had with the respondent. She said that, on the day after the complainant’s 18th birthday (in 1988), the complainant told her that the respondent “interfered with me as a child”. He declined to say any more. RF put the allegation to the respondent, who denied it. RF said that, in February 2010, she received an email from the complainant giving details of his allegations against the respondent. She put these to the respondent, who made partial admissions. For example, RF asserts that she put to the respondent the allegations made by the complainant in the email, including allegations of anal penetration, to which the respondent replied:

6. [16]

   On his 21st birthday in 1991 the complainant told his sister. It does not appear that the complainant’s sister has provided a statement.

7. [17]

   On 20 December 2011 the complainant attended the Batemans Bay Police Station and made a formal report of his allegations. The police officer who assumed control of the investigation at that time was Detective Senior Constable (now Sergeant) MacPherson. On 5 January 2012 the complainant made a detailed statement setting out his allegations. RF’s statement was made on 2 March 2012.

8. [18]

   On 22 May 2012 Senior Constable MacPherson contacted the respondent by telephone. There is no evidence in this Court as to the content of the conversation that followed. On 24 May 2012 solicitors acting for the respondent wrote to Senior Constable MacPherson advising that they acted for the respondent and had been instructed that Senior Constable MacPherson wished to obtain a statement from him “in relation to certain allegations that he is not as yet aware of”. The solicitors went on to say:

9. [19]

   On 21 September 2012, the respondent having declined to be interviewed, Senior Constable Peter Gillett (who by this time had taken charge of the investigation) applied to a judge of the Supreme Court for the issue of a warrant under the Surveillance Devices Act 2007 (NSW) (“the SDA”). Section 17 of the SDA authorises the issue of a surveillance device warrant if certain specified conditions are met. By the application Senior Constable Gillett sought a warrant for the use of two listening devices “on or about the body of [the complainant]”. The application was supported by an affidavit affirmed by Senior Constable Gillett, in which he gave an account of the allegations made by the complainant. He stated the purpose of the warrant as:

10. [20]

    A judge of the Common Law Division issued the warrant. (No challenge is directly made in this appeal to the propriety of the application for, or the validity of, the issue of the warrant.) The warrant authorised the use of two listening devices on or about the body of the complainant during the period 21 September 2012 to 18 December 2012.

11. [21]

    On 14 December 2012, the complainant was fitted with two listening devices. One was capable of recording, the other of transmitting, “audio product”. Police took the complainant to the home of the respondent and RF. He entered the premises. Both the respondent and RF were present. A conversation followed. Initially, the conversation was entirely between the complainant and RF, and about matters not relevant to the present proceedings. Eventually, the complainant addressed the respondent directly. The following is recorded (in a transcript put before the District Court, and this Court):

12. [22]

    On 27 August 2013 (8 months after this conversation) Senior Constable Gillett wrote to the solicitors for the respondent, referring to their previous advice that the respondent declined to be interviewed. He advised that since that date police had gathered electronic evidence, and offered the respondent “the opportunity” to participate in an interview with respect to that evidence. On 28 August the solicitors replied, saying that they had advised the respondent not to participate in any interview.

13. [23]

    On 30 October 2013 Senior Constable Gillett prepared and served on the respondent a Court Attendance Notice. That Notice is not before this Court.

14. [24]

    The trial of the respondent was listed in the Bega District Court. As at August 2014 it did not appear to have been allocated a hearing date. Included in the evidence served on the respondent as a part of the prosecution case was a transcript of the conversation of 14 December. It seems that counsel for the respondent notified a challenge to the admission of evidence of the conversation. It was agreed that that admissibility question could be dealt with at a pre-trial hearing, pursuant to s 139 of the Criminal Procedure Act 1986 (NSW). Accordingly, the respondent was arraigned on an indictment containing the six counts outlined above. He entered a plea of not guilty to each count. The pre-trial hearing proceeded. At the conclusion of the hearing, the judge ruled that evidence of conversations would not be admitted in the trial. It will be convenient hereafter to refer to the evidence as “the excluded evidence”.

Jurisdiction

1. [25]

   The jurisdiction of this Court under s 5F(3A) of the Criminal Appeal Act rests upon the Court being satisfied that the exclusion of the evidence substantially weakens the prosecution case. That it does so is in contest. The onus lies upon the Crown to establish that the exclusion of the evidence has that character: R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228. Whether the evidence has that character is to be determined in the context of the whole of the evidence available to the Crown. The reliability of the excluded evidence is not a relevant consideration. If different inferences are capable of being drawn from the excluded evidence, the competing inferences are not relevant. The evidence is to be taken at its most favourable to the Crown.

2. [26]

   I therefore start with the proposition that some of the answers given by the respondent to the complainant are capable of being interpreted as containing admissions (in general terms) of sexual impropriety with the complainant as a child.

3. [27]

   On behalf of the respondent it was contended that the other evidence available to the Crown was such that the decision to exclude the evidence did not substantially weaken the Crown case. It is therefore necessary to examine what the other evidence was. Before this Court were statements taken by police from the complainant, RF, and a number of other individuals. In written submissions provided on behalf of the respondent, reference was made to:

4. [28]

   The evidence of admissions said to have been made by the respondent in the complainant’s statement is the following. In about 2010, after he had sent an email to RF, RF told the complainant that she had confronted the respondent. There is no suggestion in this part of the complainant’s statement that RF conveyed any admission made by the respondent to him. The complainant went on to say that in the same year, RF told him that:

5. [29]

   However, the complainant went on to say:

6. [30]

   Craig Shepheard was a school friend of the complainant. He made a statement in 2012, in which he said that, when he was about 17, the complainant had become upset and angry, and told Mr Shepheard that the respondent had “molested” him. He did not recall the precise language used by the complainant, but said “I seem to remember that [the complainant] said that [the respondent] ‘fucked him’.”.

7. [31]

   He said that the complainant then telephoned the respondent, and, after an angry conversation, the complainant handed the phone to Mr Shepheard, who spoke to the respondent. The respondent said:

8. [32]

   Another school friend of the complainant, Ms Sonya Afflick, made a statement. Ms Afflick also recalled a conversation in which the complainant disclosed that he had been abused as a child and claimed to have confronted the respondent. There is nothing in Ms Afflick’s statement that contains any semblance of an admission by the respondent.

9. [33]

   On the hearing of the appeal, it was conceded that the evidence of Craig Shepheard and Sonya Afflick would be inadmissible, unless made admissible by the manner in which the complainant was cross-examined at trial.

10. [34]

    The relevant evidence from the statement of RF was outlined above. RF said that when she confronted the respondent after the 2010 email from the complainant, the respondent said:

11. [35]

    Additionally, RF’s statement contains the following paragraph:

12. [36]

    On behalf of the respondent it is contended that this paragraph reveals that there are further sources of information as to admissions available to the police and that these sources have not been followed up by investigating police. (This may or may not be correct. Although the officer in charge of the investigation gave evidence in the pre-trial hearing, his evidence was directed solely to the circumstances in which he had obtained the warrant. He was not asked about any other aspect of the investigation, no doubt because that was not relevant to the issues then before the court. Whether the respondent’s daughter or Mr and Mrs McKimm could give any relevant evidence, and whether, if they could, they would cooperate with police, is a matter of pure speculation.)

13. [37]

    The statement of RF in [29] is unspecific. She does not state what it was that the respondent said either to his daughter or to Mr and Mrs McKimm. What is interesting is that she said that she believed that the respondent had “mentioned it” to Trevor Fletcher. Trevor Fletcher has made a statement in which he said that the complainant, inebriated, telephoned him in an upset state. He said that some time later the respondent came to see him and burst into tears. Mr Fletcher asked what was the matter. The respondent said that the complainant had gone to the police and he was to be charged with assault. The respondent then claimed to have no idea what had happened, and denied having assaulted the complainant.

14. [38]

    In my opinion none of this evidence, other than that of RF, is capable of substantially advancing the Crown case, and much of it would not be admissible.

15. [39]

    The admissions made by the respondent in the conversation the subject of the excluded evidence therefore adds substantially to the Crown case. Deprivation of that evidence would substantially weaken the Crown case. Without it, the Director’s case would be limited to the (uncorroborated) evidence of the complainant as to the commission of the offences, supported to a small extent by the evidence of RF.

16. [40]

    Submissions were made, on behalf of the respondent, to the effect that the probative value of the excluded evidence was low. This was based upon an analysis, not only of what was said in the conversation, but also of the tone and manner in which the words were spoken.

17. [41]

    This is not a relevant consideration for this Court. What is to be made of evidence such as this is a matter for the jury.

18. [42]

    In my opinion, the decision to exclude the evidence substantially weakens the prosecution case. Accordingly, I am satisfied that this Court has jurisdiction to deal with the Director’s appeal.

19. [43]

    By s 139, a court, whether or not constituted by the trial judge, may, before a trial commences, make rulings about a variety of matters, including the admissibility of evidence. Any such ruling is binding on a subsequent trial judge, unless, in the opinion of the trial judge it would not be in the interests of justice for the ruling to be binding: sub-s (5).

20. [44]

    The evidence in the pre-trial hearing included:

21. [45]

    Although the tape recording of the 14 December conversation was exhibited to Senior Constable Gillett’s statement, the recording itself was not treated as being in evidence, and the primary judge did not listen to it.

22. [46]

    Senior Constable Gillett gave oral evidence. In his examination in chief, he was asked why it was that, having received the solicitor’s letter of 24 May advising that the respondent did not wish to be interviewed by police, he had applied for a warrant under the SDA. His reply was:

23. [47]

    The transcript records the following questions and answers in the evidence in chief of Senior Constable Gillett:

24. [48]

    The transcript of the cross-examination of Senior Constable Gillett contains the following:

25. [49]

    That concluded the evidence in the pre-trial hearing.

26. [50]

    Counsel for the respondent provided a written outline of the submissions he proposed to make in support of his challenge to the admission of the evidence. Those submissions did not clearly identify any statutory or common law basis on which exclusion of the evidence was sought. They contained assertions such as the following:

27. [51]

    The written submissions went on to extract a passage from the decision of this Court in Pavitt v R [2007] NSWCCA 88; 169 A Crim R 452, and concluded:

28. [52]

    It is apparent that the primary judge understood the challenge to the admission of the evidence to have been based upon s 90 of the Evidence Act. Section 90 provides:

29. [53]

    There was a lengthy discussion about the legal principles applicable to the admissibility of the tape recording. Particular reference was made by the judge to his previous decision in R v LDV (No 2) [2013] NSWDC 215; reference was also made to other authorities, particularly Pavitt (mentioned above).

30. [54]

    Of significance in the discussion is one concession made by the Crown prosecutor, recorded in the transcript as follows:

31. [55]

    His Honour asked if the Crown prosecutor accepted that, to which he replied:

32. [56]

    Some of the terms and expressions (specifically, “agent of the state” and “elicit”) used in these exchanges, as will become apparent, are material to the issues raised by the appeal. Their meaning and significance will be discussed below.

33. [57]

    In this Court, the Crown did not seek to resile from the concession made in the District Court that it was “palpably clear that the complainant was an agent of the state”. Only for that reason am I prepared to proceed on the basis that the complainant, in participating in the conversation with the respondent, was acting as an “agent of the state”. This should not be taken as acceptance, let alone a finding by this Court, that the complainant had that status; much less should it be taken as a general finding by this Court that, where a complainant, at the behest of police, participates in a conversation with an alleged offender, so that the conversation can be recorded, the complainant is acting as an agent of the state. While I would not wish to discourage the Crown from making appropriate concessions, there are reasons to doubt that, in this case, the concession was properly made: see R v Broyles [1991] 3 SCR 595; R v Burton [2013] NSWCCA 335 at [105] and following.

The decision of the primary judge

1. [58]

   The decision of the primary judge was that the evidence of the recorded conversation between the complainant and the respondent on 14 December 2012 would not be admitted into evidence on the respondent’s trial. By s 139(5) of the Criminal Procedure Act, that ruling was prima facie binding on the trial judge (unless that judge formed the opinion that that would not be in the interests of justice).

The reasons of the primary judge

1. [59]

   In determining that the evidence ought to be excluded, the judge drew heavily upon his own earlier decision in LDV (No 2), and, indeed, extracted lengthy portions of it. The circumstances of LDV (No 2) were relevantly similar, if not identical, to those of the present case. Allegations of sexual offences were made against LDV to police. The police officer investigating obtained a warrant under the SDA, with a view to having the alleged victim make contact with LDV; the plan was that any conversation that ensued would be recorded. It was hoped that in the conversation LDV would make incriminating statements or admissions. Telephone calls between the alleged victim and LDV did take place, and although LDV’s responses fell short of self-incrimination, the Crown nevertheless sought to have the recordings admitted in his trial. The judge declined to admit the recordings, giving reasons. The key to the decision in both cases lay in the construction the judge applied to the provisions of the SDA. The particular provision on which he relied was s 17, conferring power on eligible judges to issue warrants authorising the use of surveillance devices (as defined in the SDA). In reaching his construction, he had regard to a number of reports and other documents that he considered fell under the rubric “extrinsic material” for the purposes of s 34 of the Interpretation Act 1987 (NSW). His Honour’s reasoning process was as follows.

2. [60]

   The SDA was enacted in 2007. Prior to that, authority to issue surveillance devices (then called listening devices) was conferred by the Listening Devices Act 1984 (NSW). Enactment of the SDA followed consultation between the law enforcement authorities of all Australian jurisdictions. Those consultations were particularly directed to “cross-border” law enforcement. A report of a Joint Working Group of the Standing Committee of Attorneys-General and the Australasian Police Ministers’ Council on National Investigative Powers on Cross Border Investigative Powers for Law Enforcement was published following those consultations. Of this, his Honour said:

3. [61]

   Apparently there was attached to the Report a draft “model law”, which, the Joint Working Group envisaged, might be extended by individual states to intra-state criminal activities. His Honour considered that a “fair reading” of the Report indicated that any such intra-state activity would be of the same quality - that is “serious criminal activity”. His Honour also had regard to the Second Reading Speech of the Attorney-General in introducing the Surveillance Devices Bill in the NSW Parliament: NSW Legislative Council, Parliamentary Debates (Hansard), 14 November 2007 at 4036.

4. [62]

   He considered that a fair reading of the explanatory material demonstrated that the Parliamentary intention was that the SDA (if and when passed) would similarly apply - and apply only - to allegations of serious criminal activity. To support this conclusion, he quoted from the Second Reading Speech as follows:

5. [63]

   His Honour quoted also from other passages in the Second Reading Speech in which reference was made to “the very real threat of an act of terrorism occurring on Australian soil”, and to “tackling the important and major organised crime being committed across our borders”, and to “serious crime”.

6. [64]

   His Honour concluded from this that the intention of Parliament in enacting the SDA, and s 17 in particular, was to provide law enforcement agencies with a weapon, but to limit the use of that weapon to crimes of the genre mentioned in the extrinsic material - that is, serious major crime. The offences alleged against the respondent, he considered, did not fall in that category.

7. [65]

   His Honour said:

8. [66]

   He then referred to certain specific provisions of the SDA, including s 3, which provides:

9. [67]

   He went on to say:

10. [68]

    The essence of the decision in this case and LDV was that the power to grant SDA warrants was intended by Parliament to be confined to investigations of cases of “serious criminal activity”, such as murder, terrorism and drug manufacture or importation. (Implicit in this is the notion that sexual offending against children does not come into the category of “serious criminal activity”. That is a questionable proposition.)

Analysis

1. [69]

   There are a number of difficulties in the approach taken by his Honour. The first is that, if the power to issue warrants under the SDA were confined as his Honour held, it must follow that the warrant that was issued in this case was issued unlawfully. His Honour clearly recognised this consequence of his construction, and sought to avoid it, by saying that he was entitled to take the construction into account in the exercise of “the residual discretion specifically preserved by s 3” of the SDA. Sub-section 3(2) of the SDA provides:

2. [70]

   The logic cannot be accepted. If the legislature intended to limit the power to grant warrants under the SDA to cases of “serious crime”, of the categories his Honour identified, then the warrant in the present case ought not to have been issued. There is no case for taking such a construction into account in the exercise of “the residual discretion”.

3. [71]

   In any event, the conclusion that the power was so limited is entirely inconsistent with s 17 of the SDA. Section 17, to which his Honour referred, authorises the issue of a surveillance device warrant for the purposes of investigating “relevant offences”. “Relevant offence” is defined in s 4 of the SDA as:

4. [72]

   In other words, a surveillance device warrant may be issued to facilitate the investigation of any indictable offence. The offences with which the respondent was charged were indictable offences, and thus “relevant offences”, and thus within the scope of s 17. The power to issue such warrants is not confined as his Honour considered. Neither is the exercise of a discretion to exclude evidence (whether admissions or otherwise) to be exercised by taking into account any such limitations.

5. [73]

   That conclusion exposes the next flaw in the reasoning. His Honour relied heavily upon various items of extrinsic material, purportedly pursuant to s 34 of the Interpretation Act 1987 (NSW).

6. [74]

   Section 34(1) identifies the circumstances in which such extrinsic material may be used for the purpose of construction of a legislative provision. The circumstances are:

7. [75]

   His Honour did not rely on the extrinsic material to “confirm … the ordinary meaning” of s 17; far from it. He used it as a means to a construction that is, in my view, quite contrary to the ordinary meaning of that section. Nor did he use the extrinsic material to resolve any ambiguity or obscurity, or to avoid a result that is manifestly absurd or unreasonable. Section 17 is neither ambiguous nor obscure, nor does the ordinary meaning lead to a result that is manifestly absurd or unreasonable.

8. [76]

   Accordingly, s 34 did not operate to permit the use of the extrinsic material for the purpose of the construction of s 17.

9. [77]

   I appreciate that his Honour asserted that he was not using the material for the purpose of construction, but rather “to inform the court in the exercise of the residual discretion”. On analysis, however, his use of the extrinsic material could only go to what was intended to be encompassed by s 17.

10. [78]

    Further, while I accept that the Second Reading Speech of the Attorney General is one of the forms of material that may be used in the construction of a legislative provision, the status of the Report to which his Honour referred is more doubtful. The Report is entitled “Cross-Border Investigative Powers for Law Enforcement”. Its cover page bears a heading:

11. [79]

    It is worth going back to the words of s 34 of the Interpretation Act. The chapeau to sub-s (1) is as follows:

12. [80]

    Sub-section (2) provides a list of the categories of material that may be considered under sub-s (1) but is expressed not to limit the effect of sub-s (1). The list does not contain any category into which the Report falls. However, by reason of the opening words of sub-s (2), consideration of the Report is not excluded, provided it can be seen as being material that “is capable of assisting in the ascertainment of the meaning of [the relevant statutory provision]”. In my opinion, the Report does not have that capacity. There is nothing to show that it was provided to NSW legislators or in any way formed the basis of the SDA, or otherwise assists in the construction of the SDA.

13. [81]

    The approach taken to the question of the admissibility of the evidence was erroneous in law. For that reason alone, the decision must be set aside. However, counsel who represented the Director urged that the Court proceed to deal with a subsidiary issue, concerning s 90 of the Evidence Act.

14. [82]

    Although it is not entirely clear, there is a strong indication in [95] of LDV (see [67] above) that his Honour considered that, independently of his construction of s 17 of the SDA, the evidence of the conversation ought to be excluded on the application of s 90 of the Evidence Act. It is convenient to repeat the terms of s 90:

15. [83]

    The ambit of s 90 was explored in depth by the High Court in Em v The Queen [2007] HCA 46; 232 CLR 67. Gummow and Hayne JJ considered that s 90 is a “final or ‘safety net’ provision”, to be considered after all other provisions containing more specific exclusions have been dealt with (at [109]).

16. [84]

    In R v Burton [2013] NSWCCA 335, I considered at some length the issues arising in a case where evidence was similarly obtained. I do not propose to repeat all that I there said. As indicated above, the Crown conceded that the complainant was “an agent of the state”, and it is necessary to proceed on the basis of that concession. That does not have the necessary consequence that the evidence must be excluded, although it is a relevant consideration, because it provokes inquiry along the lines of the discussion in two decisions of the Supreme Court of Canada, R v Hebert [1990] 2 SCR 151, and R v Broyles [1991] 3 SCR 595.

17. [85]

    In Broyles, Iacobucci J first raised the concept of “an agent of the state” and said:

18. [86]

    The High Court had both Hebert and Broyles in mind when deciding The Queen v Swaffield; Pavic v The Queen. However, the High Court, while considering the Canadian authorities “instructive” (see [83]), did not fully endorse the approach of the Supreme Court. Ultimately, in the joint judgment of Toohey, Gaudron and Gummow JJ the following conclusions were reached:

19. [87]

    In Swaffield; Pavic, the High Court recognised a number of circumstances relevant to the exercise of “the fairness discretion”. One circumstance is “unreliability”: [78]. It follows as a corollary that reliability is also a relevant consideration: see Em, at [73].

20. [88]

    Another relevant circumstance is public policy: see [52]. A third is the probative value of the evidence relative to any prejudicial effect it may have: [62] and following. This consideration is to be found in statutory form in s 137 of the Evidence Act.

21. [89]

    I turn then to apply those considerations to the circumstances of the present case. First, there was no element of coercion in the respondent’s engagement with the complainant. The respondent was entirely free to speak or not to speak as he chose. Although it may be accepted that the complainant, in engaging with the respondent on the subject of his assertions of sexual abuse, was acting at the behest of police, the conversation is one that might easily have occurred without police intervention. There is no reason to think that the respondent would have responded differently had the complainant simply confronted him of his own volition. Moreover, the admissions made by the respondent have an apparently high degree of reliability.

22. [90]

    It is not uncommon in the investigation of allegations of sexual offences for investigating police to implement methods such as they did in the present case. These have come before this Court on a number of occasions: see, for example, R v XY [2013] NSWCCA 121; 84 NSWLR 363; Burton; and, in the District Court, LDV. The strategy is to arrange for a complainant to engage in conversation with an alleged offender, with a view to securing some confessional evidence. Such a device is seen to be called for for two reasons. One is that, typically, sexual offences take place in private, in circumstances where there is no witness to the events. That leaves the prosecution in the position of having no corroborative evidence. The second, related, reason concerns the attitude that courts have, historically, taken to the reliability of complainants in cases of alleged sexual offences: Carr v The Queen [1988] HCA 47; 165 CLR 314; Ewen v R [2015] NSWCCA 117, and the cases there cited. It is true that the legislature has, over the years, attempted to curb the enthusiasm for directions to juries that imply that the evidence of a complainant is somehow deficient simply because it is uncorroborated, but those efforts have taken some time to yield results. This issue has been explored in Ewen.

23. [91]

    Notwithstanding that s 294AA of the Criminal Procedure Act now prohibits a direction that juries, before convicting in trials of sexual offences, should scrutinise with great care the uncorroborated evidence of a complainant (see Ewen, at [146]), it may be expected that juries, in applying the principle of the presumption of innocence, and the need for the Crown to prove its case beyond reasonable doubt, will treat the uncorroborated evidence of complainants with some scepticism. Corroborative evidence is an important aspect of the public policy interest in the prosecution of crime. Securing confessional evidence by means that do not involve coercion or unfair tactics does not contravene public policy consideration.

24. [92]

    The question is whether arranging for a complainant to engage in a secretly recorded conversation with an alleged offender involves unfair tactics such as to render the use, in the alleged offender’s trial, unfair. In my opinion, that circumstance alone does not. That is so even taking into account the respondent’s clear refusal to be interviewed by police. In Em, the person suspected of serious crime repeatedly made abundantly clear that he would not participate in any conversation with investigating police if that conversation was to be audio or video recorded. He did engage in conversations with police in the belief that no recording was made, and he made significant admissions on that assumption. Police obtained a warrant under the Listening Devices Act (the predecessor of the SDA) and recorded further conversations, including admissions. The High Court held that it was not unfair, within the meaning of s 90, to use that evidence in his trial (see [67]-[68], [123]).

25. [93]

    In this respect it is material that the Parliament of NSW has permitted the issue, under specific circumstances, of warrants authorising the use of surveillance devices to intercept and record private conversations. A surveillance device warrant may be issued where (relevantly) an eligible judge is satisfied that there are reasonable grounds for suspecting or believing that an indictable offence has been committed (s 17). In determining whether a warrant should be issued, the eligible judge is to have regard to various specified considerations, set out in s 19(2) of the SDA. These include:

26. [94]

    It is to be taken that the judge who issued the warrant in this case considered all of these factors. Moreover, as mentioned above, the affidavit that supported the application disclosed the respondent’s prior refusal to be interviewed by police.

27. [95]

    It is not asserted in this case that the warrant was invalidly issued. The evidence so obtained was therefore obtained not only lawfully, but on the express authorisation of a judge of this Court fully informed as to the relevant facts. To categorise the admission of evidence so obtained as “unfair” would be to subvert “the statutory scheme involving judicially sanctioned covert surveillance as an aid to the detection of crime” that has been expressly adopted by the legislature: see Em, at [69] and [78].

28. [96]

    Each case, of course, will be decided on its own facts. In this case, the one additional circumstance that must be taken into account is that the respondent expressly declined to be interviewed by police. The meeting arranged by police was plainly designed to circumvent his refusal to do so. That fact was known to the eligible judge who nevertheless exercised his/her discretion to issue the warrant.

29. [97]

    The respondent was not interviewed by police. He was not coerced into participating in an interview. There was no treachery or deception in what either the complainant or the police did. The respondent engaged in a conversation with his step-son in which he allegedly made some statements that a jury may consider to be incriminating. He had made similar incriminating statements to RF. There is no suggestion that the evidence of RF should be excluded.

30. [98]

    Two circumstances mark out the evidence obtained by the conversation between the complainant and the respondent from the evidence of RF. One is that, in meeting the respondent, the complainant was acting at the suggestion of investigating police. Since the respondent did not know that, his responses were not influenced by the police involvement. That says a good deal about the reliability of the evidence. The second circumstance is that the conversation was tape recorded. That is important. Had the complainant, without police intervention, confronted the respondent, and subsequently made a statement recording his recollections of the conversation, there is no doubt that the evidence would have been admissible. It is the fact that it was recorded, giving it credibility, reliability, and accuracy, that gives rise to the present complaint. The circumstances in which the evidence was obtained significantly enhanced its reliability. (In this respect, I refer not to the reliability of the content of the respondent’s admissions but the reliability of the evidence of what he in fact said. Oral evidence given by the complainant of his recollections of such a conversation, which, I have already suggested would have been admissible, would be subject to all of the frailties of human recollection. Here, there can be no doubt of what the respondent said. How it is to be interpreted is, of course, a matter for the jury.)

31. [99]

    In my opinion, there is no basis under s 90 to hold that the circumstances in which the evidence was obtained render it unfair to the respondent for the Crown to use the evidence in his trial.

32. [100]

    For these reasons, the decision to exclude the evidence was legally flawed and must be set aside.

33. [101]

    Since preparing these reasons, I have read in draft the judgment of Leeming JA. That prompts me to add the following.

34. [102]

    I do not intend, by what I have said, to convey the impression that, in any case where a complainant or alleged victim has, at the behest or with the assistance of investigating police, taken part in a recorded conversation with an alleged perpetrator, the record of that conversation cannot be excluded under s 90 of the Evidence Act. I acknowledge the various scenarios postulated by Leeming JA as potentially relevant to the assessment of unfairness and the exercise of discretion. There may be others.

35. [103]

    In this case, there are no circumstances that warrant the exercise of the discretion to exclude the evidence.

36. [104]

    The orders I propose are:

    1. (1)

       The appeal is allowed;

    2. (2)

       The ruling of the District Court that evidence of a conversation between the complainant and the respondent of 12 September 2014 is quashed.

37. [105]

    SCHMIDT J: I agree with Simpson JA.