R v Ljubicic

1. [1]

   HOEBEN CJ at CL: I agree with the reasons of Adamson J.

2. [2]

   DAVIES J: I agree with Adamson J.

3. [3]

   ADAMSON J: On 21 November 2017 Maiden DCJ excluded the respondent’s Electronically Recorded Interview of a Suspected Person which was conducted on 1 December 2015 (ERISP). Later that day, the Crown appealed against the ruling pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW) on the basis that it was a ruling on the admissibility of evidence which substantially weakened the Crown case.

4. [4]

   The appeal was listed for hearing before this Court on 23 November 2017. At the conclusion of the hearing, the Court ordered that the appeal be allowed and that the order excluding the ERISP be set aside. My reasons for concurring in these orders follow.

The police investigation

1. [5]

   The Crown case was based on the complainant’s evidence which was that on 26 January 2014 she was asleep in bed with the respondent when she felt pain in her anus. She realised that the respondent was inserting his penis into her anus. When she objected he stopped.

2. [6]

   As part of the investigation the police lawfully recorded a telephone call which the complainant made to the respondent on 6 October 2015 in which she raised with him the circumstances of the incident on 26 January 2014 (the pretext call). During the call the respondent said that the complainant was awake when he initiated sex with her; there was no, or little, penetration; the sex was consensual; and that as soon as she objected he stopped. He also said that he thought she would not mind anal intercourse “this once” and that it was not consensual and that he had “just started doing it . . . and stopped as soon as [the complainant] objected.

3. [7]

   On 1 December 2015 the respondent participated in the ERISP. In the ERISP he said that the complainant, though sleepy, was awake when he had anal intercourse with her; that she seemed willing to have sex; the pressing of her anus with his penis was unintentional; that his intention had been to have penile-vaginal intercourse; that there was no penetration as only the tip of his penis touched her anus; and he thought that she was consenting to vaginal intercourse but did not think that she was consenting to anal intercourse.

4. [8]

   In the course of the ERISP the respondent told police that “[n]othing was said” after the incident the subject of the charge. This prompted the following exchange:

5. [9]

   The respondent confirmed that the telephone conversation was the only time after the event that they had discussed what had occurred that night at all. He said that they had separated about six months after the incident (in mid-2014) and that the first mention of the incident was at the beginning of 2015 (six months after they had broken up and about a year after the incident), when the complainant had written a letter to him about it to which he had not responded. The letter was not available to be tendered.

6. [10]

   Much later in the ERISP, after the respondent had been questioned about the incident, the police raised the telephone call to which the respondent had referred earlier (in A27, see above) in the following exchange:

7. [11]

   At Q132 the police confirmed with the respondent that he had not responded to the complainant’s letter, either in writing or by calling her. The police raised the telephone call in the following exchange:

8. [12]

   The police did not, during the ERISP, disclose their knowledge of the pretext call or that it had been recorded.

Pre-trial matters

1. [13]

   After the respondent was charged and committed for trial the Crown served a Crown Case Statement which contained the following:

2. [14]

   Ms Hall, who appeared for the respondent at trial and in this Court, confirmed that in the defence response to the Notice of Prosecution Case served pursuant to s 143 of the Criminal Procedure Act 1986 (NSW), the respondent indicated that he objected to the pretext call but did not indicate that the ERISP would be objected to.

The proceedings in the Court below

1. [15]

   On 20 November 2017 the Crown presented an indictment against the respondent (to which he pleaded not guilty) which charged that:

2. [16]

   In the course of the complainant’s evidence, the Crown sought to play the recording of the pretext call to the jury. In the absence of the jury the trial judge raised an objection to the pretext call and also to the ERISP. His Honour’s objection to the pretext call was that it was exculpatory. The prosecutor submitted that, although it was largely exculpatory, it was not wholly exculpatory and that the Crown was entitled to rely on those parts which constituted admissions. His Honour, after indicating that he considered there to be some unfairness when there is an “organised call where the accused doesn’t know what’s going on”, which his Honour described as “entrapment”, expressed concern about the length of time between the incident and the pretext call (about 21 months). In the course of argument, his Honour then raised the issue of the admissibility of the ERISP and asked the Crown whether it was ever put to the respondent in the course of the ERISP that there had been a recording of the telephone call, which was the pretext call. The Crown confirmed that it had not been. His Honour characterised this issue as one of fairness. After almost six pages of transcript of exchanges between the trial judge and the Crown, his Honour asked whether the respondent objected to the pretext call. The respondent’s counsel confirmed that no objection was taken to the pretext call. When asked whether objection was taken to the ERISP, respondent’s counsel indicated that she would need time to consider the respondent’s position. The Court was adjourned until 21 November 2017.

3. [17]

   On 21 November 2017 the Crown submitted that there was no unfairness in the ERISP that would warrant its exclusion and relied on The Queen v Swaffield (1998) 192 CLR 159; [1998] HCA 1. The Crown submitted that the probative value of the ERISP was that it amounted to a version which was inconsistent with the one given in the pretext call and could be used to undermine the respondent’s credibility and, therefore, the reliability of either version. After substantial exchanges with the Crown, the trial judge invited submissions from counsel for the respondent, who identified the unfairness as being that the respondent was not given the opportunity in the ERISP to explain any inconsistencies between what he had said in the pretext call and what he had said in the ERISP.

4. [18]

   There was no reference to s 138 of the Evidence Act 1995 (NSW) in the argument on the voir dire. At the conclusion of the voir dire, the trial judge delivered ex tempore reasons for excluding the ERISP. His Honour said:

Consideration

1. [19]

   Ms Hall did not seek to defend the ruling on the basis of s 138 of the Evidence Act since she accepted both that the ERISP was neither unlawfully nor improperly obtained and that no such objection had been taken on the voir dire. She also accepted that the fact that the police did not disclose the pretext call before asking the respondent whether he would participate in the ERISP could not amount to unfairness since there was no obligation to do so.

2. [20]

   It was submitted on behalf of the respondent that this Court should not entertain the appeal as the ruling to exclude the ERISP neither eliminated nor substantially weakened the Crown case, as required by s 5F(3A) of the Criminal Appeal Act.

3. [21]

   In the alternative, Ms Hall submitted that it was within the trial judge’s discretion to exclude the ERISP under s 90 of the Evidence Act because, the pretext call having been raised, the police had an obligation as a matter of procedural fairness to put the pretext call to the respondent prior to the conclusion of the ERISP to provide him with an opportunity to explain any inconsistencies between what he had told the complainant and what he had told police. Ms Hall contended that the failure to provide him with the opportunity in the ERISP had the consequence that its admission was unfair. She submitted that it put the respondent in the invidious position of having to choose between giving evidence to explain the inconsistencies (thereby exposing himself to cross-examination) or exercising his right to silence and leaving the inconsistencies unexplained. When it was put to Ms Hall that the decision whether to give evidence was one which would have had to be made in any event, she submitted that there was an unfairness in his not having been asked to explain the discrepancies at the time of the ERISP when his recollection of the pretext call and the incident itself could be expected to be fresher in his memory than it would be at the trial.

4. [22]

   In effect, the respondent sought to defend the trial judge’s exclusion of the ERISP on the basis that the investigating police had an obligation to accord procedural fairness to him, which required them, in the context of the present case to put the pretext call to him in the ERISP to give him an opportunity to explain the inconsistencies between what he had said to the complainant on 6 October 2015 and what he had told the police had happened in the ERISP on 1 December 2015.

5. [23]

   The question whether the exclusion of evidence substantially weakens the Crown case for the purpose of this Court’s jurisdiction under s 5F(3A) of the Criminal Appeal Act is to be determined in the context of the whole of the Crown case. The reliability of the evidence is not relevant for this purpose as the evidence is to be taken as its most favourable to the Crown: R v DRF [2015] NSWCCA 181 at [25] (Simpson JA, Leeming JA and Schmidt J agreeing). The Crown bears the onus of persuading this Court that the evidence excluded by the trial judge has the character provided for in s 5F(3A) of the Criminal Appeal Act: R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 at [39] (Spigelman CJ).

6. [24]

   I am satisfied that the exclusion of the ERISP substantially weakens the Crown case. If the ERISP is not before the jury, the only evidence of the respondent’s version in the Crown case is the recording of the pretext call. The jury would be entitled to give the pretext call greater weight if the jury believed that it was the only version given by the respondent but would be entitled to give it substantially less weight, or reject it, if it was aware that a different version had been given on another occasion. Moreover, the ERISP contains various admissions which are important to the Crown case. For example, in the ERISP the respondent said that the complainant was “sleepy” when he initiated sex whereas in the pretext call, his version was that they were having sex and she was in the “doggy” position. The respondent also admitted in the ERISP that he did not think that she was consenting to anal sex.

7. [25]

   Counsel for the respondent correctly accepted that there was no basis on which the trial judge could exclude the evidence under s 138 of the Evidence Act. It is plain that the respondent was appropriately warned before he decided to participate in the ERISP. No non-compliance with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) has been identified. The transcript of the ERISP recorded that the respondent was told that he did not have to participate but that, if he did, anything he said could be used in evidence. At the conclusion of the ERISP the respondent confirmed that no threat or promise had been made to him.

8. [26]

   Having regard to the basis on which the respondent sought to defend the trial judge’s ruling it is necessary to turn to s 90 of the Evidence Act which provides:

9. [27]

   The leading case on s 90 of the Evidence Act is Em v The Queen (2007) 232 CLR 67; [2007] HCA 46, which established that the onus is on the accused to establish unfairness. In Em v The Queen the appellant, who was suspected of serious criminal offences, had made it clear to police that he would not speak to them if what he said was recorded. Police obtained a warrant under the Listening Devices Act 1984 (NSW) and recorded what the accused said to them, even though they knew that he was only prepared to speak to them if no recording was made; that he believed that what he said was not being recorded; and that he would not have spoken to them at all if he had realised that it was being recorded. The High Court held that it was not unfair, within the meaning of s 90 of the Evidence Act, for the recordings of the conversations to be admitted in evidence against him at trial.

10. [28]

    In Em v The Queen Gummow and Hayne JJ identified as the “central issue”:

11. [29]

    The relationship between ss 90 and 138 was addressed by Gummow and Hayne JJ, who said as follows:

12. [30]

    In the present case, unlike Em v The Queen, the respondent knew that the ERISP was being recorded and could be used in evidence against him. He knew that he had a choice to participate in the ERISP or to remain silent and that, if he chose the latter, his silence could not be used against him. Even if it be accepted that the respondent assumed that the police were not aware of his telephone conversation with the complainant, it is difficult to see how this would make the use of the ERISP at the trial unfair when the use of the evidence considered in Em v The Queen was not regarded as unfair. The matters raised by the respondent, relating to whether the police ought to have put the pretext call to him in the ERISP to invite his response and provide him with an opportunity to explain the inconsistencies between what he had said to the police in the ERISP and what he had said to the complainant in the pretext call, would appear to fall squarely within the matters that are not relevant to s 90 of the Evidence Act, but would have been relevant had an objection been made pursuant to s 138. I am not persuaded that there was anything sinister in the police questions about the telephone call, which had been raised by the respondent. Their questions were consistent with their need to find out whether the telephone call to which the respondent was referring was the same call as the pretext call, or was a separate call. I do not discern anything unfair about their questions.

13. [31]

    In any event, it is difficult to see, once it was accepted that there was no illegality or impropriety associated with the ERISP for the purposes of s 138 of the Evidence Act, how any omission to disclose the pretext call in the ERISP could be germane to the discretion under s 90.

14. [32]

    Moreover, since the respondent bore the onus of establishing unfairness, if he sought to rely on some matter relating to, for example, recollection, he could have given evidence on the voir dire as to why, say, he would have been in a better position to explain the discrepancies between what he had said in the pretext call and what he said in the ERISP at the time of the ERISP: see EM at [64]. He gave no evidence on the voir dire.

15. [33]

    Nor could it be said that it was unfair to the respondent to use the ERISP to impugn the credibility of the version he gave in the pretext call since this was the inevitable consequence of his having given one version in conversation with the complainant on 6 October 2015 and another to the police in the ERISP on 1 December 2015. The respondent’s case at trial will become apparent when the complainant is cross-examined. He will be obliged, in giving his counsel instructions for that cross-examination to choose whether to instruct her to put the version he gave in the pretext call, the version he gave in the ERISP, or some other version. At the close of the Crown case, he will be obliged to decide whether to give evidence to explain the inconsistencies between the ERISP and the pretext call or to remain silent. While such decisions may be invidious, they do not make the use of the ERISP unfair.

16. [34]

    If the approach taken by the trial judge, endorsed by the respondent’s counsel in the limited respect set out above, were adopted, it would import into the investigation of criminal offences a requirement to accord procedural fairness which would be at odds with fundamental principle.

17. [35]

    The obligation to procedural fairness arises where there is an anterior decision to be made before a power is exercised. This situation does not arise where police are investigating the commission of a criminal offence. In LDF Enterprise Pty Ltd v State of New South Wales [2017] NSWCA 89 the Court of Appeal (Leeming JA, Basten and Macfarlan JJA agreeing) rejected an argument that investigating officers had a duty to accord procedural fairness before they entered on land to conduct a search pursuant to a statutory power. They said, of present relevance at [31]:

18. [36]

    The argument that procedural fairness was required in the exercise of powers conferred on maritime officers to detain persons at sea and remove them to another place was rejected by the High Court in CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 at [51]-[53] (French CJ); [358]-[361] and [366]-[368] (Gageler J, Crennan J at [227] agreeing) and [500]-[503] (Keane J).

19. [37]

    While it is not uncommon for police to put various matters to an accused person in an ERISP to invite a response, there is no obligation whatsoever on the police to do so. In the criminal context, procedural fairness comes at a later stage, where, before trial, the Crown is obliged to disclose to the accused all the material within its possession which could be relevant to the charge and, at trial, it is obliged to call all its evidence and close its case before the accused is called upon to decide whether to give evidence in response. A failure to disclose all relevant material pre-trial may result in the quashing of a verdict of guilty: Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 at [17] (Gummow, Hayne, Callinan and Heydon JJ). The common law disclosure requirements on the Crown and the consequences of non-compliance are reflected in provisions such as ss 141, 142, 144 and 146 of the Criminal Procedure Act.

20. [38]

    For the reasons given above, the trial judge’s reasons demonstrated that the discretion under s 90 of the Evidence Act miscarried. The respondent has not discharged his onus of establishing that the admission of the ERISP was unfair.

21. [39]

    In addition to the orders made by this Court on 23 November 2017, the Crown also sought an order that the ERISP is admissible. I would have been inclined to make an order in those terms but for the fact that, for reasons which are not apparent, the trial judge discharged the jury on 22 November 2017 and listed the matter for trial on 28 November 2017. It has been held that it is not appropriate for this Court to make rulings on the admission of evidence in advance of the trial: R v ELD [2004] NSWCCA 219 at [23]-[29] and [46] (Bell J, Howie and Hislop JJ agreeing) and R v GAC [2007] NSWCCA 315 at [52] (Giles JA, RS Hulme and Hislop JJ agreeing). While it is difficult to see how any different approach in the forthcoming trial could alter the admissibility of the ERISP, it would seem to be inappropriate for this Court to order that the ERISP was admissible, as would have been appropriate had the jury not been discharged.