Published by Geoff Harrison | 27 August 2024
What is known as a 'pre-text call' is now a common practice by police where the complainant, on the pretence of a random call to the accused, is recorded by police. In order for such a recording to be lawful, an "investigating official" requires a warrant pursuant to s19 of the Surveillance Devices Act 2007. Such admissions are difficult to exclude given that it is not questioning by an 'investigating official' where a person is generally required to be advised of their right to silence, e.g. police, as per s139 of the Evidence Act 1995. Hence, generally, the real issue is whether any unfairness attaches to the admissibility of the evidence as per s90 of the Evidence Act; such considerations were set out by McColl JA and Latham J in Pavitt v R [2007] NSWCCA 2007 at [70] and [71]:.
70 In our view, without being exhaustive, the following propositions relevant to the present case can be extracted from the authorities to which we have referred concerning the admissibility of covertly recorded conversations:
(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: Swaffield (at [91]) per Toohey, Gaudron and Gummow JJ; (at [155]) per Kirby J.
(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: Swaffield (at [91]); a conclusion that some or all of the Broyles factors were present did not lead to the admissions being excluded in either Pavic or Carter’s cases;
(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: Swaffield (at [91]).
(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: Broyles (at [30]);
(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: Hebert;
(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: Broyles.
(i) The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful.
71 We would add that views may differ about whether a complainant is a state agent, even if the conversation is recorded in circumstances facilitated by the police: cf Thomas JA in Burt (at [12]) and de Jersey CJ in M (at [10]). For our part we would not readily apply the label of state agent to a complainant speaking to a suspect who had not been charged, nor refused to speak to police. Rather we would look at the whole relationship as revealed by the participants’ past history and what is revealed by the actual conversation. It may be relevant to consider whether the police scripted the conversation.
Cases:
Extracted Legislation:
EVIDENCE ACT 1995 - SECT 81
81 HEARSAY AND OPINION RULES: EXCEPTION FOR ADMISSIONS AND RELATED REPRESENTATIONS
(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.
(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation--
(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and
(b) to which it is reasonably necessary to refer in order to understand the admission.
Note--: Specific exclusionary rules relating to admissions are as follows--
• evidence of admissions that is not first-hand (section 82)
• use of admissions against third parties (section 83)
• admissions influenced by violence and certain other conduct (section 84)
• unreliable admissions of accused persons (section 85)
• records of oral questioning of accused persons (section 86)
Example:
D admits to W, his best friend, that he sexually assaulted V. In D's trial for the sexual assault, the prosecution may lead evidence from W--
(a) that D made the admission to W as proof of the truth of that admission, and
(b) that W formed the opinion that D was sane when he made the admission.
EVIDENCE ACT 1995 - SECT 84
84 EXCLUSION OF ADMISSIONS INFLUENCED BY VIOLENCE AND CERTAIN OTHER CONDUCT
(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by--
(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or
(b) a threat of conduct of that kind.
(2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.
EVIDENCE ACT 1995 - SECT 90
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.
Note--: Part 3.11 contains other exclusionary discretions that are applicable to admissions.
EVIDENCE ACT 1995 - SECT 139
139 CAUTIONING OF PERSONS
(1) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if--
(a) the person was under arrest for an offence at the time, and
(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and
(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
(2) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if--
(a) the questioning was conducted by an investigating official who did not have the power to arrest the person, and
(b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and
(c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
(3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.
(4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.
(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if--
(a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning, or
(b) the official would not allow the person to leave if the person wished to do so, or
(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.
(6) A person is not treated as being under arrest only because of subsection (5) if--
(a) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth, or
(b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.
SURVEILLANCE DEVICES ACT 2007 - SECT 21
21 WHAT A SURVEILLANCE DEVICE WARRANT AUTHORISES
(1) A surveillance device warrant may authorise, as specified in the warrant, any one or more of the following--
(a) the use of a surveillance device on or in specified premises or a vehicle,
(b) the use of a surveillance device in or on a specified object or class of object,
(c) the use of a surveillance device in respect of the conversations, activities or geographical location of a specified person or a person whose identity is unknown,
(d) the use of a surveillance device on or about the body of a specified person.
(2) A surveillance device warrant authorises--
(a) for a warrant of a kind referred to in subsection (1)(a)--
(i) the installation, use and maintenance of a surveillance device of the kind specified in the warrant on or in the specified premises or vehicle, and
(ii) the entry, by force if necessary, onto or into the premises or vehicle, or other specified premises adjoining or providing access to the premises or the vehicle, for any of the purposes referred to in subparagraph (i) or subsection (3), and
(b) for a warrant of a kind referred to in subsection (1)(b)--
(i) the installation, use and maintenance of a surveillance device of the kind specified in the warrant in or on the specified object or an object of the specified class, and
(ii) the entry, by force if necessary, onto or into any premises or vehicle where the object, or an object of the specified class, is reasonably believed to be or is likely to be, or other premises adjoining or providing access to those premises or the vehicle, for any of the purposes referred to in subparagraph (i) or subsection (3), and
(c) for a warrant of a kind referred to in subsection (1)(c)--
(i) the installation, use and maintenance of a surveillance device of the kind specified in the warrant, on or in premises or a vehicle where the person is reasonably believed to be or likely to be in the future, and
(ii) the entry, by force if necessary, onto or into the premises or vehicle referred to in subparagraph (i), or other premises adjoining or providing access to those premises or the vehicle, for any of the purposes referred to in subparagraph (i) or subsection (3), and
(d) for a warrant of a kind referred to in subsection (1)(d)--the use of the surveillance device of the kind specified in the warrant on or about the body of the person specified in the warrant.
(3) Each warrant also authorises--
(a) the retrieval of the surveillance device, and
(b) the installation, use, maintenance and retrieval of any enhancement equipment in relation to the surveillance device, and
(c) the use of an assumed identity for the purpose of the installation, use, maintenance or retrieval of the surveillance device or enhancement equipment, and
(d) the disconnection of, or otherwise making inoperative, any security system for the purpose of the installation, maintenance or retrieval of the surveillance device or enhancement equipment, and
(e) the temporary removal of an object or vehicle from premises for the purpose of the installation, maintenance or retrieval of the surveillance device or enhancement equipment and the return of the object or vehicle to the premises, and
(f) the breaking open of anything for the purpose of the installation, maintenance or retrieval of the surveillance device or enhancement equipment, and
(g) the connection of the device or enhancement equipment to an electricity supply system and the use of electricity from that system to operate the surveillance device or enhancement equipment, and
(h) the connection of the device or equipment to a telecommunications system or network and the use of that system or network in connection with the operation of the surveillance device or enhancement equipment, and
(i) the provision of assistance or technical expertise to the law enforcement officer named in the warrant in the installation, use, maintenance or retrieval of the surveillance device or enhancement equipment under the warrant.
(4) If a surveillance device remains on or in premises or a vehicle after the expiry of the surveillance device warrant authorising its installation, use and maintenance, the warrant is taken also to authorise, for the period of 10 days after that expiry, any action to be taken in respect of the retrieval of the device that would be authorised if the surveillance device warrant were a retrieval warrant.
Note--: Section 29 specifies the action that is authorised to be taken by a retrieval warrant. If a surveillance device remains on or in premises or vehicle for more than 10 days after its expiry, a retrieval warrant must be obtained under Division 3 to authorise retrieval of the device and any enhancement equipment in relation to it.
(5) A surveillance device warrant may authorise the doing of anything reasonably necessary to conceal the fact that anything has been done in relation to the installation, use, maintenance or retrieval of a surveillance device or enhancement equipment under the warrant.
(6) A law enforcement officer may use a surveillance device under a warrant only if he or she is acting in the performance of his or her duty.
(7) This section applies to a warrant subject to any conditions specified in the warrant.
(8) Nothing in this section authorises the doing of anything for which a warrant would be required under the Telecommunications (Interception and Access) Act 1979 of the Commonwealth.
"law enforcement officer" means the following--
(a) in relation to the NSW Police Force--a member of the NSW Police Force,
(b) in relation to the New South Wales Crime Commission--an officer of the Commission within the meaning of the Crime Commission Act 2012 ,
(c) in relation to the Independent Commission Against Corruption--an officer of the Commission within the meaning of the Independent Commission Against Corruption Act 1988 ,
(d) in relation to the Law Enforcement Conduct Commission--an officer of the Commission within the meaning of the Law Enforcement Conduct Commission Act 2016 ,
(e) in relation to an agency prescribed for the purposes of paragraph (e) of the definition of
"law enforcement agency" --any person prescribed by the regulations as a law enforcement officer in respect of that agency for the purposes of this definition,
and includes a person who is seconded to a law enforcement agency, including (but not limited to) a member of the police force or police service or a police officer (however described) of another jurisdiction.
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