It is becoming more and more common as part of an investigation (particularly in relation to sexual assault allegations) for police to obtain warrants under theSurveillance Devices Act 2007. Police will then utilise the complainant to initiate a phone call (that is recorded) in an endeavour to elicit admissions from the suspect.
As outlined in the case of R v Burton [2013] NSWCCA 335, this raises issues in relation to: i. the persons’ right to silience and ii. whether witnesses/complainants are being used as an agent of the State. Her Honour Simpson J, refers to nine propositions that were considered relevant to admissibility around these issues, in Pavitt v Regina [2007] NSWCCA 88 by McColl JA and Latham J:
(a) The underlying consideration in the admissibility of covertly recorded conversations is to look at the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned …
(b) If that freedom is impugned, the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted …
(c) Even if there is no unfairness the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards …
(d) The question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and/or improper include whether the accused had previously indicated that he/she refused to speak to the police;
(e) The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required:
(i) as a threshold question, was the evidence obtained by an agent of the state?
(ii) was the evidence elicited?
(f) A person is a state agent if the exchange between the accused and the informer would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents …
(g) Absent eliciting behaviour on the part of the police, there is no violation of the accused’s right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police …
(h) Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the state agent for the conduct of the conversation may also be important …
(i) The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful.” (internal citations omitted)
Also of significance on this issue is the High Court decison relating to: The Queen v Swaffield; Pavic v The Queen [1998] HCA 1; 192 CLR 159.
