R v DJL [2024] NSWDC 165

R v DJL [2024] NSWDC 165

The pretext call admissions were admissible. The complainant's conduct did not amount to oppressive conduct under s 84, and even if oppression were assumed, the Crown negatived any causal connection between that conduct and the admissions. The complainant was not an agent of the State because, although police facilitated and recorded the calls, the content and tone were not scripted and would not likely have been materially different without police arrangement. Some false statements by the complainant meant the admissions were deemed improperly obtained under s 138(2)(b), but, given their significant probative value and importance in a serious criminal trial, the desirability of admitting...

Jurisdiction
Australia
Judgment Date
10 May 2024
Procedural Posture
Criminal Proceeding Involving Charges of Serial Sexual Offences / Pre Trial Procedural Rulings on Admissibility of Evidence
Outcome
The accused's application to exclude the pretext call admissions was dismissed; the admissions were held admissible. The Crown's contingent application concerning evidence of the complainant's virginity was allowed.
Legal Topics
['admissibility of Admissions' 'pretext Phone Calls' 'surveillance Device Warrant' 'oppressive Conduct' 'improperly Obtained Evidence' 'unfair Prejudice' 'discretion to Exclude Admissions' 'sexual Reputation Evidence']
['criminal Law' 'evidence' 'criminal Procedure'] ['admissibility of Admissions' 'pretext Phone Calls' 'surveillance Device Warrant' 'oppressive Conduct' 'improperly Obtained Evidence' 'unfair Prejudice' 'discretion to Exclude Admissions' 'sexual Reputation Evidence']

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Procedural Posture

Criminal Proceeding Involving Charges of Serial Sexual Offences / Pre Trial Procedural Rulings on Admissibility of Evidence

Legal Issues

  1. 1 ['Whether evidence of sound recordings of pretext phone calls between the complainant and the accused should be excluded under ss 84, 90, 137 or 138 of the Evidence Act 1995 (NSW).' 'Whether the complainant acted as an agent of the State in making the pretext calls.' 'Whether the admissions and the circumstances in which they were made were influenced by oppressive conduct.' 'Whether the admissions were improperly obtained, including by false statements, and if so whether the desirability of admitting them outweighed the undesirability of admitting them.' 'Whether the probative value of the admissions was outweighed by the danger of unfair prejudice to the accused.' 'Whether it would be unfair to admit the admissions having regard to the circumstances in which they were made.' 'Whether anticipated evidence that the complainant was still a virgin when alleged penile-vaginal intercourse commenced was relevant and admissible, including under s 294CB of the Criminal Procedure Act 1986 (NSW) and s 137 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The pretext call admissions were admissible. The complainant's conduct did not amount to oppressive conduct under s 84, and even if oppression were assumed, the Crown negatived any causal connection between that conduct and the admissions. The complainant was not an agent of the State because, although police facilitated and recorded the calls, the content and tone were not scripted and would not likely have been materially different without police arrangement. Some false statements by the complainant meant the admissions were deemed improperly obtained under s 138(2)(b), but, given their significant probative value and importance in a serious criminal trial, the desirability of admitting...

Court Disposition

The accused's application to exclude the pretext call admissions was dismissed; the admissions were held admissible. The Crown's contingent application concerning evidence of the complainant's virginity was allowed.

Orders

  • ['The admissions in the pretext phone calls, as found to be admissions, are admissible.' 'On the contingency that the complainant gives evidence that she was still a virgin when the alleged penile-vaginal intercourse commenced, the Crown is allowed to rely upon that evidence.']