1. Andrew Raymond Lieske (the accused) is charged with two counts of sexual intercourse without consent. Both offences were allegedly committed against his former partner (the complainant). The accused and the complainant had been in a relationship for a short time but that had ended some twelve months earlier. The alleged offences occurred after the complainant had met the accused socially and had accompanied him to his house. The first offence is alleged to have occurred late in the evening or early morning of 14/15 May 2003 and the second offence in the morning of 15 May 2003.

2. In this pre-trial application, the accused seeks a ruling to exclude two covertly recorded conversations between himself and the complainant.

3. The first conversation, on 23 August 2003, took place by way of a telephone call that the complainant initiated from a police station, adopting a procedure which was said to be used by the Queensland police and held to be lawful in that State (the pretext conversation). The second conversation, on 10 December 2003, was transmitted by a listening device worn by the complainant and monitored by police officers on the occasion of a meeting that took place between the complainant and the accused at Tilley’s café, Lyneham (the Tilley’s conversation). At no time prior to either conversation did the accused know that the complainant’s allegations were the subject of police investigation. It was not until after the Tilley’s conversation that the accused was arrested and charged with the offences.

4. The prosecution wishes to rely upon these conversations as evidence of what are said to be ‘partial’ admissions made by the accused to the complainant.

The complainant’s conduct subsequent to the alleged offences

5. After the alleged events had occurred, the complainant went to the house of a male friend a short time after 9.00 am on the morning of 15 May 2003 and made allegations to him concerning the assault. The complainant then attended work where she spoke to two work colleagues about the alleged assaults. She attended workplace counselling and spoke to a counsellor and, later that day, contacted the Sexual Assault and Child Abuse Team (SACAT), a division of the Australian Federal Police (AFP), although it is unclear whether she identified herself. She attended forensic medical services and the Canberra Hospital to undergo a medical examination and the tests normally undertaken on victims of alleged sexual assault. On 16 May 2003, Detective Constable Kylie Lawson was appointed the case officer, but it was not until 23 May 2003 that the complainant lodged a formal complaint with the AFP. No formal police statement was taken from the complainant at that time. Two statements (dated 20 June 2003 and 9 July 2003) were made subsequently. Both statements were taken and witnessed by Detective Constable Kylie Lawson. In the meantime, statements were also taken from persons to whom the complainant had spoken shortly after the incident. The evidence of those persons as to what the complainant said to them about the incident could well be admissible under s 66 of the Evidence Act 1995 (Cth) (the Evidence Act) as first-hand hearsay.

The pretext telephone call

6. Notwithstanding what seems to be the bringing of the investigation to a point where it might be expected that the applicant be interviewed before charges were laid, Detective Constable Lawson took a different course. As a result of investigating a different matter, she had become aware of an investigative practice adopted in Queensland involving complainants speaking to alleged offenders by way of a telephone call recorded by the complainant. The procedure relied upon certain decisions of the Queensland Court of Appeal and were referred to in those decisions as “pretext” conversations. “Pretext” being a reference presumably to the concealment of the true purpose of the conversation. At the time, legal advice was being sought by the AFP SACAT from the AFP’s legal section concerning the admissibility of such calls and that advice was also made available to Detective Constable Lawson at about this time.

The recording of the conversation

7. The complainant had advised Detective Constable Lawson that the applicant had wanted to maintain contact with her. As a consequence of receiving the legal advice and having received other advice, Detective Constable Lawson arranged with the complainant that she telephone the applicant and record that conversation. That took place on 23 August 2003.

8. Detective Sergeant Lawson arranged for the recording of this telephone conversation between the complainant and the accused without obtaining a warrant to do so. Whether a warrant was required was an issue in these proceedings. The conversation was recorded by means of a hand-held tape recorder operated by the complainant which picked up and recorded the voices of both speakers.

The Telecommunications (Interception) Act 1979 (Cth)

9. Generally, the Telecommunications (Interception) Act 1979 (Cth) prohibited the interception of a communication passing over the telecommunications system. Such an interception can be permitted if a warrant under that Act is obtained. The recording of the conversation in the present case took place after the passage of the communication had been completed and that Act did not apply to it (see R v Oliver (1984) 57 ALR 543 at 548; R v Giacco & Another (1997) 68 SASR 484 at 491; R v Workman (2004) 60 NSWLR 471 at 472).

The Listening Devices Act 1992 (ACT)

10. The Listening Devices Act 1992 (ACT) regulates the use of listening devices such as the tape recorder used in the present case. Section 4(1) of that Act prohibits the use of a listening device to record a private conversation to which the person is a party. That prohibition does not apply to the use of a listening device under an authority granted by or under a law of the Commonwealth (s 4(2)(a) of that Act).

The Australian Federal Police Act 1979 (Cth)

11. The tape recorder also falls within the definition of listening device for the purposes of the Australian Federal Police Act 1979 (Cth) (the AFP Act) (see s 12B of the AFP Act). The relevant section of that Act applying at the relevant time which authorises the use of listening devices is s 12F which provides:

12F Use of listening devices in relation to general offences

(1) It is unlawful for an official to use, for the purposes of general offence inquiries that are being made by members, a listening device for the purpose of listening to or recording words while they are being spoken by a person unless:

(a) the official is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or

(b) the official listens to or records the words with the consent, express or implied, of a person who is permitted by paragraph (a) to listen to or record the words; or

(c) if the general offence concerned is a class 1 general offence or a class 2 general offence – the official does so in accordance with a warrant under section 12G and the provisions of this Division.

(2) It is unlawful for a person acting by arrangement with an official to use, for the purposes of general offence inquiries that are being made by members, a listening device for the purpose of listening to or recording words while they are being spoken by a person unless the first-mentioned person is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard.

(3) It is the duty of the Commissioner to take reasonable steps to ensure that subsections (1) and (2) are not contravened by officials.

(4) Despite any law of a State or Territory:

(a) an official does not act unlawfully merely because the official uses a listening device as mentioned in subsection (1) in circumstances to which paragraph (1)(a), (b) or (c) is applicable; and

(b) a person acting by arrangement with an official does not act unlawfully merely because the person uses a listening device as mentioned in subsection (2) in circumstances in which the use of the device is not declared to be unlawful by that subsection.

“General offence” and “general offence inquiries are defined in s 12B of the AFP Act as:

general offence means:

(a) an offence against a law of the Commonwealth that is not a customs narcotics offence; or

(b) an offence against a law of the Australian Capital Territory.

general offence inquiries means:

(a) inquiries in relation to a general offence that has been committed or is reasonably suspected of having been committed; or

(b) if there are circumstances reasonably giving rise to the suspicion that a general offence is likely to be committed – inquiries in relation to the likely commission of the offence.

12. The structure of s12F of the AFP Act is to make unlawful the use of a listening device for the purpose of general offence inquiries but to then permit its use in the specific situations set out in that section. Without more, I would have thought that the AFP Act “authorises” in the sense of giving authority for the use of listening devices in the circumstances specified in ss 12F(1) and (2). It is s 12F(4) of that Act which the accused says in his written submissions give cause to question that conclusion. Under s 12F(4), laws of a State or Territory will not cause an official, or person acting by arrangement with an official, to act unlawfully “merely” because they use the listening device in circumstances which are not said to be unlawful. The provision seems to only have effect in ensuring that State or Territory laws cannot make unlawful that which is not unlawful under ss 12F(1) and (2). That is certainly the effect of the explanation given in the Supplementary Explanatory Memorandum to the Law and Justice Legislation Amendment Bill 1989. Accordingly, even if it can be said that ss 12F(1) and (2) of the AFP Act is not “an authority granted by or under a law of the Commonwealth”, s 12F(4) of the AFP Act ensures that actions taken in accordance with those subsections are lawful notwithstanding the Listening Devices Act 1992 (ACT).

13. In the present case, whilst “the official” referred to in s 12F of the AFP Act encompasses the members of the AFP investigating this matter, the person who is using the listening device is the complainant. As long as it is the complainant who operates the device and uses it, it is s 12F(2) not s 12F(1) that applies to that use of the recording device. In such a case, the effect of ss 12F(2) and (4) of that Act is to confine the use of the device to a person “acting by arrangement with an official” and requires that person to be either the speaker of the words or to be a person by whom the speaker of the words intends the words to be heard. In the case of this telephone conversation, the complainant is the speaker of the words and the person by whom the accused intends that the words he speaks be heard. The recording of the conversation by the complainant is authorised by s 12F(2) of that Act and is lawful (see Medina v The Queen (1995) 126 FLR 368). It would be otherwise if the device used by the complainant were to be part of equipment being used by members of the AFP to listen to and record the conversation. In that case, although the complainant could rely upon s 12F(2) so as not to be said to be acting unlawfully, the police officers could not rely upon any of the exceptions under s 12F(1) so as to make their actions lawful (see Barker v R (1994) 127 ALR 280 at 297; R v Truong (1996) 86 A Crim R 188 at 191).

14. In his written submissions, Mr Thomas, who appeared as counsel for the accused, submitted that the words in s 12F(2) of the AFP Act that the speaker of the words “intends” or should “reasonably expect” contain a notion that the speaker know that the conversation is being recorded. Reference was made, in particular, to Article 17 of the International Covenant on Civil and Political Rights forbidding arbitrary or unlawful interference with privacy and to the New South Wales Law Reform Commission’s Report in 2001, “Surveillance: an Interim Report”. Detailed reference was also made to decision of the Supreme Court of Canada in Duarte v The Queen (1990) 53 CCC (3d) 1. However, this reference and the other authorities cited do not dissuade me from the view that the plain meaning of s 12F(2) of the AFP Act permits the covert use of listening devices in the manner utilised in this case.

Admissibility issues

15. The legal advice upon which Detective Constable Lawson was acting observed that the use of pretext telephone calls was not to be employed by law enforcement authorities if the alleged offender has been interviewed by the police and exercised the right to remain silent. The advice contains no discussion of the rationale for this view other than to say that the call must take place prior to interview “so that where an offender has exercised his/her right to silence, that right has not been circumvented”. I do not think that this advice fairly represents the position that, even if a right to silence has not been exercised, it may be circumvented, depending upon the certain circumstances, by the actions of the investigating authorities. Further, the advice warns against the victim being coached by the police as to what to say during the call. The advice otherwise does not consider the questioning process and the issues that might ultimately be pertinent to the reliability of any admissions obtained. There are, in my view, important questions to be addressed which were not the subject of the advice given to Detective Constable Lawson. They require consideration to be given as to whether the evidence of any admissions obtained can be admissible having regard to s 85 of the Evidence Act and what regard should be had to matters to avoid the discretionary exclusion of such evidence under s 90 of the Evidence Act.

Section 85 of the Evidence Act

16. Section 85 of the Evidence Act provides;

85 Criminal proceedings: reliability of admissions by defendants

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:

(a) in the course of official questioning; or

(b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and

(b) if the admission was made in response to questioning:

(i) the nature of the questions and the manner in which they were put; and

(ii) the nature of any threat, promise or other inducement made to the person questioned.

17. In the present case, there is an issue as to whether the complainant is a person capable of influencing the decision whether a prosecution should be brought or continued in the terms of s 85(1)(b). The complainant’s own evidence was that she had discussions with Detective Constable Lawson as to whether she should go ahead with reporting the incident. In R v Truong (supra), Miles CJ took the view that a person acting in order to assist the police in their inquiries was not a person that fell within s 85(1)(b) of the Act even though it could be said that the cooperation of such a person was likely to be a factor in influencing a prosecution. However, Miles CJ said (at p 193):

Without limiting the operation of s 85(1)(b), I would think that it is designed mainly to exclude unreliable evidence of admissions made to persons in positions of complainants or victims of crime.

18. The prosecution submitted that the complainant would not have been held to be a person in authority for the purposes of statutory provisions in other States which exclude confessions induced by threats or promises of a person in authority. I was specifically referred to R v Burt [2000] 1 Qd R 28 and R v Dixon and Smith (1992) 28 NSWLR 215. In each of those cases, emphasis is placed on the appearance and involvement of the person as a person in authority and the consequent effect that might convey to the person being questioned. Although this may be a factor under s 85 of the Evidence Act in assessing the effect of and nature of any threat, promise or inducement, those cases do not constrain the scope that s 85 has, both as to the circumstances that may arise for it to operate and the matters that are to be taken into account.

19. I am satisfied that the complainant in this case is a person “who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued”. At the time of the conversation in question, no charges had been laid. The matter of the decision to prosecute would be very much influenced by the complainant’s attitude to giving evidence. The accused’s responses to the complainant’s questions that she asked give rise to what are said to be the admissions upon which the prosecution wishes to now rely. That being so, the issue becomes whether the prosecution can show that the circumstances were such as to make it unlikely that the truth of any admission so made was adversely affected (s 85(2) of the Evidence Act).

The nature of the questioning

20. The complainant was not coached or specifically instructed in the course that the conversation was to take. However, she was told to focus on the matters referred to in her statement to the police. The conversation proceeded in this way. After the conversational preliminaries, the accused (A) and the complainant (C) said:

(A) What’s going on?

(A) Yeah I did, yeah.

(A) Yeah.

(A) I want to talk to you face to face, I don’t want to talk over the phone.

(A) Well, if you want to do it that way it’s fine, I’ll do it that way then.

21. That exchange really set the tenor of the conversation which proceeded by way of a series of questions which now, looking at them objectively, seem only designed to obtain an admission that the accused knew or understood that the complainant did not wish to have sex with the accused on that night. The accused made no direct response by way of admission to numerous invitations to respond to the implications of questions of that nature, but responded from time to time by saying that he did not know what happened that night, that he and the complainant “hurt” each other, that he knew that he had upset the complainant and otherwise by not being particularly responsive to the persistent questions on the topic. The instances could only perhaps be said to be adverse to his interests in respect of the charges that he faces if it can be shown that a denial was to be expected and required. Otherwise, the prosecution need to rely upon some undefined consciousness of something untoward (of, I would have thought, a sexual nature) that may have occurred. Throughout the conversation the accused makes it clear in what he said at the outset, namely, that he wished to discuss the matters with the complainant face to face and not over the telephone. For her part, the complainant keeps attempting to draw out a response to the events which presumably led to the breakdown of any relationship that the parties might have had after the night that she had spent at the accused’s place. Each time the accused indicates that he does not wish to say anything further over the telephone, an attempt is made to draw out some further response. It is difficult to characterise this as anything other than what is, in effect, an interrogation. Overall, as far as my impression is concerned, the complainant appears far more composed and apparently in control of the conversation. I take the view that the conversation proceeds by way of persistent questioning of the accused on the particular topic of the complainant’s choosing rather than the give and take of a discussion.

22. Some idea of the flavour of the conversation may be obtained from the following exchange that occurred near the end of the conversation which, at that time, had been going for over half an hour:

(A) Listen.

(A) I’m glad that you’re getting help for it. I hope that – that therapy ---

(A) --- for the missing link.

(A) How many times did I ---

(A) How do I treat women? You tell me. How do I treat women?

(A) Have I had any complaints from anyone else in my relationships?

(A) Well fuckin’ go back and ask ‘em. Ring ‘em. You know all my ex-girlfriends.

(A) I dunno, that’s right, no.

(A) Never ever done anything like that.

(A) That’s right, I’ve never ever hit the girl.

(A) I’ve never done anything like that.

(A) Elizabeth?

(A) No, I’m not saying – I’m not admitting anything over the phone to you, okay.

(A) I’ve never done anything.

(A) [I] do you want help, Elizabeth?

(A) No, I’m not saying that, I don’t want you to go through life but I’m not talking to you over the phone.

(A) No, but I tell you something else, all right, I’m not – I’m not going to lecture you or anything like that. You do need to resolve this situation, right, ‘cause you – you will let it hang over your head for the rest of your life.

23. I should note at this point that it is a conversation where both parties are on relatively equal terms as far as age and personality are concerned. In this passage and the earlier passages, the complainant is seeking to manipulate the conversation for her purposes. The accused, in his way, seeks to turn blame back on the complainant. It is true that the accused could have terminated the conversation but he does not do so, apparently wishing to maintain contact with the complainant. There is also the circumstance that, whilst it is clear that an incident occurred which affected the relationship of the parties, there is no admission or even an acknowledgement on the part of the accused that it was a sexual act.

24. Further, there appear to be real difficulties in assessing the issue of reliability in a case where the prosecution are seeking to rely upon inferences to be drawn from what is, in effect, said to be a failure to deny guilt. For the accused’s response or reaction to be probative, it has been said to require a double inference “of guilty state of mind from guilty behaviour, and of guilt from guilty state of mind” (see Palmer A “Guilt and the Consciousness of Guilt: the use of lies, flights and other ‘guilty behaviour’ in the investigation and prosecution of crime” (1997) 21 MULR 95 at 148). Reliance in this case on inferences to constitute the admission calls for the exclusion of innocent explanations for the behaviour relied upon. I do not consider that any of the representations said to be made by the accused leads to an unequivocal admission. This equivocation can be said to be brought about by the underlying nature and manner in which the questions were put and the context in which the conversation is occurring. It is the accused who is seeking to speak to the complainant; but it is the complainant who is using as an inducement the threat of cessation of contact (or perhaps the implied promise of its continuance) to obtain responses from the accused. The nature of the questions and the manner in which they were put, particularly in the context of the accused not wishing to discuss such matters on the telephone, in my view, are matters capable of affecting the reliability of what the accused was saying.

25. In these circumstances, I do not consider that the prosecution have satisfied me that the circumstances surrounding this conversation in which any admission may have been made were such as to make it unlikely that truth of the admission was adversely effected. Having regard to the matters that I should take into account, I rule that pursuant to s 85 of the Evidence Act, the evidence of the telephone conversation that took place between the complainant and the accused on 23 August 2003 is not admissible.

Section 90 of the Evidence Act

26. The circumstances surrounding the conversation to which I have referred are also pertinent to a consideration of whether it would be unfair to the accused to use the evidence (see s 90 Evidence Act). Section 90 of the Evidence Act provides:

90 Discretion to exclude admissions

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

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

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

27. Detective Constable Lawson, following the legal advice that she had received, desisted from interviewing the accused and thereby ensured that he did not express a wish to exercise his right to silence. That right was described by the High Court in Petty v The Queen (1991) 173 CLR 95 at 99 per Mason CJ, Deane, Toohey and McHugh JJ as:

A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played.

28. The issue of unfairness involved in eliciting an admission from a person where that might derogate from such a right was the subject of examination by the High Court in R v Swaffield; Pavic v R (1998) 192 CLR 159. In that case, Toohey, Gaudron and Gummow JJ said (at 202):

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

29. In speaking of covert recording and the use by police of subterfuge, Kirby J said (at 220/221):

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

30. The matters referred to by Kirby J to measure the fairness that may arise are similarly expressed in one of the Canadian cases cited by Kirby J and approved by Toohey, Gaudron and Gummow JJ in Swaffield (supra). In R v Broyles [1991] 3 SCR 595 at 611, the Supreme Court of Canada said:

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

The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?

Consideration of pretext conversations by Courts of Criminal Appeal

31. I was referred by the prosecution to a number of cases in the Courts of Criminal Appeal in various jurisdictions to illustrate the point made by the prosecution that there is a body of case law where complainants, at the instigation of police, engage alleged sex offenders in conversations and these are recorded. There is no doubt that such evidence can be admissible but its admission into evidence will depend upon and be measured by the application of the principles in R v Swaffield; Pavic v R (supra). The application of those principles in the cases that were cited to me assists in illustrating how those principles might apply in any particular case, but I note that there are important points of distinction from the case that I am considering here.

32. In R v M (2002) 135 A Crim R 324 at 325-326 [6] – [11], there was a substantial age difference and contrasting levels of maturity where the self-possession of the older could be contrasted with the emotional and tearful questioning by the child complainant.

33. In R v Workman (supra) at 474 [16] and [17], it was said the complainant, a 16 year old girl, was not in the position of an interrogator, nor did a reading of the transcript appear to the Court of Criminal Appeal to be “the functional equivalent of an interrogation”.

34. The Victorian Court of Criminal Appeal in R v Peter Van Doorn [2004] VSCA 65, unreported, 14 May 2004 BC 2004 02 730 at [20], referred to the fact that the:

… use of such ‘pretext conversations’ between alleged victims and suspected offenders are, and have long been, a common investigative tool used by Police in investigating alleged sexual offences against young people.

The complainants in that case were 14 years of age. The court did not discuss the application to adult complainants or the nature of the questioning.

35. In R v B [2005] QCA 106, the Queensland Court of Appeal held as rightly admitted, a recorded telephone conversation between a male complainant who was eight and 14 years old at the time of the offences respectively, but about 24 years old at the time of the recorded conversation. The conversation was quite short and, in the court’s view, did not take the form of an interrogation.

36. These cases, and the other cases that were cited of decisions of Judges at first instance, demonstrate that the matters to which the High Court has referred in R v Swaffield; Pavic v R are matters to be applied to the particular circumstances of the individual case. It is to those circumstances that I turn.

The reasons for conducting the pretext conversation

37. Detective Constable Lawson gave evidence on the voir dire as to the reasons she embarked upon the course of investigation that she did. I found her evidence on the justification for doing so to be generally unsatisfactory. In response to questions that were put to her in cross-examination, Detective Constable Lawson kept saying that the purpose of taking the course of having the complainant engage in a pretext call was to “corroborate” the complainant’s statement. In answer to the question that one of her purposes was to seek admissions, she responded:

Was to seek corroboration and see if admissions arose from that conversation but that wasn’t the sole purpose.

Her best answer when asked why she herself did not speak to the accused was this:

Well that’s what I’m saying, if he – if I had spoken to him and say he had chosen to speak with me and – in relation to the allegations then – well I don’t know because I can’t predict because he didn’t say anything – but all I could say was I had received a complaint by X on this day, what do you have to say about it? So if I’m in a position to speak to somebody with further knowledge and some corroboration I’m better placed.

38. I have difficulty in seeing what “corroboration” could be obtained from the pretext call other than a possible admission confirming the accused’s commission of the offence. I cannot see any other purpose that the conversation could have. There does not seem to be an issue as to whether or not the complainant and the accused were together on the occasion. I am unable to see how Detective Constable Lawson would be better placed in that she would not be in a position to speak to somebody (other than the accused) with further knowledge as she asserts. In other words, it seems to me that the investigation proceeded to the point where one would expect that the accused would be interviewed. The only confirmation that there could be of the complainant’s “version” (as Detective Constable Lawson referred to the complainant’s statement) is that of the occurrence of the incidents about which the complaint had been made. That confirmation could come only from admissions made by the accused. There is also the point that there was already material in the hands of the police that the complainant had told other persons that she and the accused had been together on the night and morning in question which confirmed that aspect of the investigation.

39. Detective Constable Lawson also makes assertions that she had an “open mind” and that justified her in proceeding the way that she did. The test that she says that she applied before effecting an arrest in this case was that a prima facie case existed and that there were reasonable prospects of a conviction. She says that point was not reached until after the Tilley’s conversation that took place on 10 December 2003. That seems to indicate that she did not properly consider at the time of setting up the complainant to embark on the pretext conversation, whether or not the accused should have been arrested. She says that she did not have grounds to charge the accused until after the Tilley’s conversation. I do not accept that to be the case. Indeed, I think that it indicates that she did not carefully consider, before embarking upon this mode of investigation, whether she was in a position where she could reasonably suspect that the accused had committed the offence. This, after all, is a situation where the complainant is a mature intelligent woman studying, at the time, law and economics, who had made a considered decision to give two statements to the police alleging the commission of a serious crime. It is also of consequence that the statements made by the complainant to others could be considered corroborative in a general sense. It was certainly confirmatory of an incident between the complainant and the accused. Having regard to the way that she gave her evidence, I conclude that Detective Constable Lawson took a deliberate decision not to turn her mind as to whether the accused should be arrested, which would have required a formal interview, but rather chose to proceed to seek to attempt to obtain admissions from the accused through the agency of the complainant in a way that would avoid the requirements that a formal interview would have entailed.

40. Once it is appreciated that this procedure could affect the accused’s right to silence and the procedural safeguards afforded by a formal interview (and it does not seem that Detective Constable Lawson did appreciate it), the objective purpose of the pretext conversation could be to only circumvent the accused’s right to silence and the procedures required of a formal interview.

41. There is a considerable overlap in questions that arise under s 85 of the Evidence Act and the issues under s 90 of that Act which concentrate on the focus on the form of the conversation and the nature of the relationship between the person effectively acting as the agent of the police and the accused. I am satisfied that a consideration of those issues with regard to s 90 of the Evidence Act make it unfair to the accused for this evidence to be used. Accordingly, pursuant to s 90 of the Evidence Act, I would also refuse to admit the evidence of the pretext conversation.

The Tilley’s Conversation on 10 December 2003

42. Although the tape of the pretext conversation was reviewed by the police, no action was taken to interview the accused. The fact that in the course of the pretext conversation the accused had said on a number of occasions that he wanted to speak in person with the complainant, apparently caused police to consider applying for a listening device warrant and to organise a face to face meeting between the complainant and the accused. A delay of some months, related, it seems, to the complainant’s study and exam commitments and the leave commitments of the police officers. An application for a warrant for the use of a listening device was eventually made on 28 October 2003 and a warrant was granted.

The listening device warrant

43. The provisions concerning the use of listening devices in the AFP Act have now been replaced by provisions in the Surveillance Devices Act 2004 (Cth) . However, at the time, s 12G of the AFP Act provided for the grant of an application for a listening device warrant by a Judge or a nominated AAT member. There are certain requirements before the issue of a warrant that must be satisfied pursuant to s 12G(2) of the AFP Act. Firstly, the person must be suspected on reasonable grounds of having committed a class 1 general offence or a class 2 general offence (s 12G(2)(b)(i)); the information so obtained would be likely to assist in relation to enquiries concerning the commission of the offence (s 12G(2)(b)(ii)); having regard to methods of conducting enquiries that do not involve the use of a listening device; how much of the particular kind of information might be obtained and how much the use of these alternative methods would prejudice enquiries (s 12G(2)(b)(iii) and s 12G(6)); and, finally, if the offence is a class 2 general offence, how much the privacy of any person would be likely to be interfered with by the use of the listening device, the gravity of the conduct involved and the extent to which the information from the listening device would assist in enquiries (s 12G(2)(b)(iv) and s 12G(7)).

44. Section 12B of the AFP Act defines ‘general offence’ and ‘class 2 general offence’. ‘General offence’ means:

(a) an offence against the law of the Commonwealth that is not a customs narcotics offence; or

(b) an offence against a law of the Australian Capital Territory;

‘Class 2 general offence’ means a general offence that is an offence of any of the following kinds; …

(b) an offence … punishable by imprisonment for life or for a period, or maximum period, of at least 7 years, where the particular conduct constituting the offence involved, involves, or would involve, as the case requires:

(i) loss of a person’s life or serious risk of loss of a person’s life; or

(ii) serious personal injury or serious risk of serious personal injury; or

(iii) serious damage to property in circumstances endangering the safety of a person; or …

45. The offence under consideration here was the allegation by the complainant of two incidents of sexual intercourse without consent. The circumstances that were alleged in respect of one of the incidents were that the complainant was pushed in her back which forced her throat against the end of the bed frame and caused her difficulties breathing. It was said that this was a risk of serious personal injury. It was said that accordingly this offence was in the category of a class 2 general offence. I am unable to follow the reasoning. The definition of ‘class 2 general offence’ contemplates past, present and future conduct. However, where the past or present conduct will have a result such as loss of life, injury or damage, that is specified, and if the conduct is future, it may have the serious risk of such a consequence. In the case before me, there was no serious personal injury occasioned by the commission of the offence as alleged by the complainant. In my view, the offences alleged by the complainant could not be regarded as either class 1 nor class 2 general offences. A listening device warrant could not be validly issued in respect of the offences that the complainant alleged. The effect of s 12F(1) of the AFP Act is to make unlawful the use of the listening device by the members of the AFP and the technical officers assisting them without a valid warrant.

The accused’s submission as to the listening devices warrant

46. The accused claimed that the listening device warrant that was issued on 28 October 2003 was defective because it failed to name any specific person who might exercise the authority under the warrant, I do not consider the submission to have any substance. In Ousley v R (1997) 192 CLR 69 at 111, McHugh J referred to the difference in nature between listening device warrants and search warrants and the reason why the persons executing the latter should be named. He said:

A listening device warrant differs from a search warrant because the execution of the former is by way of covert installation of the listening device. Its installation is intended to go undetected by the person against whom or against whose interests the warrant is executed. In contrast, a search warrant is ordinarily presented to the person whose rights and liabilities stand to be affected. At common law, the requirement for the officer executing a search warrant to produce the warrant to the occupier of the premises to be searched was restricted to circumstances where the occupier requested to see the warrant and this position is maintained in legislation such as the Search Warrants Act 1985 (NSW) (s 16). However, provisions such as s 3H of the Crimes Act 1914 (Cth) make it mandatory for the executing officer to make a copy of any search warrant issued under that Act available to the occupier of the premises. Such provisions reflect the desire to achieve an appropriate balance between a person's rights of privacy and the need to facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. Recognition is given to the importance of enabling persons whose rights of privacy stand to be affected to satisfy themselves of the authority for such action, as emphasised by Lord Wilberforce in Rossminster [1980] AC 952 at 1000:

“The person affected, of course, has the right to be satisfied that the power to issue [the warrant] exists: therefore the warrant should ... contain a reference to that power.”

Thus although a requirement for disclosure of jurisdiction is easily understood in relation to search warrants, the need for such a requirement is less clear in the case of listening device warrants, which are not presented to affected persons prior to execution. Unlike a search warrant, a listening device warrant does not necessarily authorise what would otherwise amount to tortious conduct. Some listening devices may be installed at a remote location, so that no question of trespass will arise because there is no need to gain entry to the premises from which conversations are intended to be monitored. Similarly, listening devices may be able to be installed on the premises in question without committing a trespass by utilising the co-operation of a person who has a legal right of entry to those premises. The search of a person's premises and seizure of items contained therein without the permission of the occupier is however clearly tortious conduct, and any statutory authority for such conduct must be strictly construed . Where an occupier is not to be given the opportunity to refuse entry for the purpose of installing a listening device, a requirement for a listening device warrant to disclose jurisdiction on its face would seem futile. (references omitted)

(See too Commissioner of Police v Barbaro (2001) 51 NSWLR 419 at 422 [17]).

47. Section 12G(5) of the AFP Act provides that the warrant obtained under that section may authorise entry to premises to install and recover devices but such entry was not required for the warrant issued in this case. To be valid, the warrant did not require that the names of the persons who could exercise the authority under it be disclosed on the face of the warrant. The fact that the warrant was in fact executed by officers who were authorised to do so, and the fact that they were assisted by technical staff who have been properly designated as such, was shown to be the case from the materials put before me. There was no requirement at law that those names be set out in the warrant.

48. However, as I have said, there was no basis for the warrant to be issued in the first place. The actions of the police in recording the conversation were unlawful.

The application of s 85 and s 90 of the Evidence Act to the Tilley’s conversation

49. The tone and tenor of the conversation on this occasion differed from that of the pretext conversation. Having listened to the essential parts of both conversations, I conclude that there is not the same insistent pressure on the accused to respond and there is not the same reluctance on the accused’s part to speak about the event in the Tilley’s conversation as there was in the pretext conversation. I do not think that the same considerations that led me to apply s 85 and s 90 of the Evidence Act to exclude the pretext conversation are present with respect to the Tilley’s conversation. Nevertheless, the Tilley’s conversation was, in my view, obtained unlawfully and requires that I consider the application of s 138 of the Evidence Act to it. If necessary, it would also call for me to consider the application of s 137 of the Evidence Act.

The purport of the Tilley’s conversation

50. As far as the Tilley’s conversation is concerned, the prosecution refers to a number of responses that the accused made to the questions put to him by the complainant as at least indicating some consciousness of wrongdoing on his part. As in the pretext conversation, there is a degree of equivocation in those responses and there is no clear admission of any element of the offences that are alleged against him.

51. I was specifically referred to the following passage in the conversation which I accept, from what had taken place before it, was directed to the occasion when the complainant alleges that the sexual assaults took place. At this stage, the conversation had been going for over 20 minutes:

(A) I wish, I wish, we never saw each other that night, ya know what I mean? It would have been a lot easier.

(A) Easier for you!

(A) Doesn’t faze me at all.

(A) No, doesn’t faze me at all. The only thing that fazes me is upsetting you.

(A) That’s what hurts me the most is that I have hurt you, because I didn’t want to hurt you, you know what I mean, I didn’t want to upset you at all, and I, you know

(A) Well you know, I’m sure you’ve worked that out

(A) What, why, what went wrong, look …

(A) No, I can stop anytime, I’m not out of control,

(A) No listen, listen, Yeah look, I told ya, I wanted to get you, I just wanted to get you out of my life, you know what I mean, and if that’s what it took. I didn’t want to see you again, I told you in the beginning “don’t hurt me”

(A) Yeah, cause I knew afterwards that it was wrong, you know what I mean?

(A) Not leading up to it no, but then after, you know

(A) I know

(A) Yeah, I know, I’m sorry about that, alright, I’m sorry okay

(A) Mmm

(A) It’s real, like don’t get me wrong but you’ve said it to me before is it real, that everyone keeps on telling you that it’s not real or whatever. I don’t know who said that to you? Who would say that to you? Who doesn’t … Who doubts you?

(A) Oh okay I don’t know. I don’t want, I don’t know. I don’t know. I don’t want to dwell on this all the time with you

(A) I didn’t want to hurt you, but I … I wanted to, I don’t know, you were, I was hurting and I didn’t know what to do.

(The conversation in italics is that which the prosecution proposes to lead.)

52. Overall, the impression given by the responses is some consciousness of wrongdoing but nothing to attribute it to any specific incident, whether of a physical character or otherwise. There is another passage late in the conversation which does refer to a particular physical incident that the complainant says took place and that was the allegation that she made in her statement to the police that she was held down against the bed. That portion of the conversation was as follows:

(C) If you say so, I just think if you’re really really angry, okay, fine, but, so you see it as like, the whole time as one thing? You hadn’t vented your anger until the morning finished? Is that what you’re saying?

(A) Mmm

(A) I know I did the wrong thing … I know I did the wrong thing. Listen, what’s happened here is, I’m not saying that that’s not a big thing. You think you’ve, what you’ve done, is you’ve created something, right, well you haven’t created it, you’ve seen it, you’ve experienced something, and made it worse than what it really is. …

53. I do not regard that as an admission of that physical incident taking place. Listening to the edited and enhanced CD of the conversation does not confirm that the “I know I did the wrong thing, … I know I did the wrong thing” response to the question was a clear and unequivocal acknowledgement of the facts asserted in the question.

54. Taken either in its separate parts or as a whole, the probative value of the Tilley’s conversation as evidence of an admission that the accused had committed the alleged offence is, in my view, not of any great force.

Section 138 Evidence Act

55. The view that I have formed about the probative value of this evidence is of significance having regard to the fact that I have concluded that the evidence was obtained improperly. Section 138 of the Evidence Act provides:

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

…

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence; and

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject‑matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g)

1. The evidence of the telephone conversation that took place between the complainant and the accused on 23 August 2003 is not admissible.

2. The evidence of the conversation that took place between the complainant and the accused on 10 December 2003 should not be admitted.