R v Vito, Sione Taulata [2008] NSWDC 333

R v Vito, Sione Taulata [2008] NSWDC 333

The recorded pretext telephone conversation was admissible. The accused's recognition of the complainant, interest in her, failure to deny the allegation that she asked him to stop, apologies, explanation, concession that he was drunk, and demonstrated English fluency were capable of constituting admissions. The probative value was not outweighed by any danger of unfair prejudice. Although the complainant could be regarded as an agent of the state because the call would not have occurred but for police intervention, the conversation was not the functional equivalent of an interrogation, was not scripted or coercive, involved loose and minimal police instructions, and did not involve...

Jurisdiction
Australia
Judgment Date
19 December 2008
Procedural Posture
Criminal Proceeding Concerning Sexual Assault Charges / Interlocutory Application to Exclude Evidence of a Pretext Telephone Conversation
Outcome
Application to exclude evidence is rejected.
Legal Topics
['sexual Assault' 'admissions' 'pretext Telephone Conversation' 'listening Device Warrant' 'exclusion of Evidence' 'unfairness to Accused' 'improperly Obtained Evidence']
['criminal Law' 'evidence'] ['sexual Assault' 'admissions' 'pretext Telephone Conversation' 'listening Device Warrant' 'exclusion of Evidence' 'unfairness to Accused' 'improperly Obtained Evidence']

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Procedural Posture

Criminal Proceeding Concerning Sexual Assault Charges / Interlocutory Application to Exclude Evidence of a Pretext Telephone Conversation

Legal Issues

  1. 1 ['Whether the recorded pretext telephone conversation contained admissions by the accused and had probative value.' 'Whether the evidence should be excluded under s.90 of the Evidence Act 1995 because it would be unfair to the accused to use it.' 'Whether the evidence should be excluded under s.137 of the Evidence Act 1995 because its probative value was outweighed by the danger of unfair prejudice.' 'Whether the evidence should be excluded under s.138 of the Evidence Act 1995 on the basis of impropriety or contravention of Australian law.' 'Whether the complainant was acting as an agent of the state and whether the conversation was the functional equivalent of an interrogation.']

Ratio Decidendi

The recorded pretext telephone conversation was admissible. The accused's recognition of the complainant, interest in her, failure to deny the allegation that she asked him to stop, apologies, explanation, concession that he was drunk, and demonstrated English fluency were capable of constituting admissions. The probative value was not outweighed by any danger of unfair prejudice. Although the complainant could be regarded as an agent of the state because the call would not have occurred but for police intervention, the conversation was not the functional equivalent of an interrogation, was not scripted or coercive, involved loose and minimal police instructions, and did not involve...

Court Disposition

Application to exclude evidence is rejected.

Orders

  • ['The application to exclude the pretext conversation of 8 March 2007 is rejected.']