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Conducting a ‘pretext’ call has become common practice for police investigating sexual assault allegations in New South Wales. This involves police obtaining a warrant and organising a call between the complainant and the accused.

During the call, the complainant will try and discuss the allegations or a certain incident, essentially attempting to elicit admissions from the accused.

For example, it may include the complainant asking, “why did you do it?” or “you knew I didn’t consent, right?”.

This will often occur before a suspect is contacted by police, meaning they are often entirely unaware they are under investigation.

The call may then be used as evidence against the accused in criminal proceedings if they are charged.

As outlined, police in New South Wales will be required to obtain a listening device warrant to set up and record a pretext conversation without the suspect’s consent.

There are strict rules regarding the official cautioning of suspects (i.e., such as officers having to state that what accused says or does may be used in evidence) before they are questioned by police.

However, it has been ruled that a complainant asking questions during a pretext call is not a ‘state agent’ and therefore does not need to follow those rules.

Despite this, a person may be deemed 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 (i.e., the police).

It has previously been ruled that the Court will not readily find that a complainant making a telephone call to a suspect, who had not been charged, and who had not exercised their right to silence, is a ‘state agent’.

Apart from where it may be deemed that the police participated in ‘eliciting behaviour’, there is no violation of the accused’s right to choose whether or not to speak to the police.

Therefore, where the suspect speaks to the complainant, it is viewed as their own choice, with the suspect implicitly accepting the risk that the recipient may inform the police.

‘Eliciting behaviour’ that is not permissible includes if the conversation was the functional equivalent of an interrogation and if the complainant exploited any special characteristics of the relationship to extract the statement.

Evidence of the instructions given to the complainant regarding the conduct of the conversation may also be important.

This was found in Regina v Pavitt (2007) 169 A Crim R 452 and has been followed in Regina v Burton [2013] NSWCCA 335 and Regina v DRF [2015] NSWCCA 181.

In the case of the accused, the pretext call was excluded from being used as evidence.

District Court Judge Bennett SC refused to admit the evidence of the accused responses in the pretext call due to the complainant using ‘manipulative techniques’ to place undue pressure on him to say something that he didn’t believe.

The prosecution were seeking to rely on the responses as admissions to the charges, essentially claiming that his statements were ‘confessions’.

Once the evidence was excluded, a decision was made to discontinue the proceedings – with all charges withdrawn. The decision related to the content of the pretext call being excluded is [2023] NSWDC 450.

The accused was charged with one count of sexual intercourse without consent, and two counts of intentionally strangling without consent. He had been in a romantic relationship with the complainant for around one year.

The prosecution alleged that one night after the accused had been drinking, he attended the complainant’s house and sexually assaulted her, which involved her being choked twice.

They broke up shortly after and the complainant reported the matter to police around 2 months later.

During the investigation, she attended Bondi police station and participated in a telephone interface recorded by police where she called the accused on his mobile phone.

The call included the accused stating that he could not remember if the complainant said stop, with the complainant asking: “can you just acknowledge that what you did was wrong?”  and “can you just say what you did to me? I just want to hear you say it. Please.”

It also included her assuring: “I just think we need to talk about what really happened so we can, like, move on. You’ve got a girlfriend now. I feel like you really don’t need the stress.”

He had responded with “Yes it was wrong. And I’m sorry,” and “I’m sorry for keeping on going when you said stop,” to the respective prompts.

After this call occurred, he called his current girlfriend and discussed the conversation with the complainant, ultimately stating: “any sane person would realise the only reason I’m apologising is to make her feel better.”

Prior to the call being made, the complainant participated in a ‘practice session’ with one of her friends. They had prepared a script for the call as well as anticipated responses from the accused, inclusive of other options she could use to elicit admissions.

The collaboration included practising the call with the friend acting as the accused and the complainant as herself.

This arrangement was without the police’s knowledge and was contrary to their instructions regarding how the call ought to be conducted.

The police told her that she was not to seek the advice of others, specifically friends, in preparing for the pretext call. When reminded of this prior to the call being recorded, the complainant disclosed her discussion with her friend and their practice sessions to the officer in charge.

Judge Bennett SC ultimately ruled that she had a clear memory of the strategy recorded in the script or had it with her at the time of the call, due to the similarities. This largely included the “false inducements given to the accused in the attempt to override his exculpatory statements.”

The script contained outright lies, including that the complainant had not spoken to the police, within the false assurance that she wanted him to sort things out between them.

He found that if the full circumstances of the ‘practice sessions’ had been discovered upon an investigation, the pretext should never have been permitted to take place.

Grounds on which the defence sought to exclude the evidence include sections 85 (‘reliability of admissions by defendants’), 90 (‘discretion to exclude admissions’), 84 (‘exclusion of admissions influenced by violence and certain other conduct’) and 137 (‘exclusion of prejudicial evidence in criminal proceedings’) of the Evidence Act 2008 (NSW).

Section 85 provides that evidence of an admission is not admissible unless the circumstances in which the admission was made make it unlikely that the truth of the admission was adversely affected.

Relevantly, this applies to evidence of an admission made by a defendant as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued (i.e., a complainant).

The Judge had regard to the nature of the questions that were put, the manner in which they were put, and inducements made (i.e., the representation that he should apologise and acknowledge her version of events so that they might move on and resolve the alleged issue without any consequences). This was deemed to influence the way the accused proceeded in discussion.

Whilst there is always a degree of deception in a pretext call, which must be so for it to work, it is not appropriate to go so far as to offer false inducements and false assurances.

In this respect, it was held that the prosecution could not prove that the circumstances of the questioning were not such as to produce untruthful or unreliable evidence of admission.

In a related manner, section 90 provides the court with discretion to refuse to admit the prosecution’s evidence of an admission if having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

In this case, unfairness was highlighted by the manner in which the accused was subjected to manipulative questioning, including deliberate false and pre-planned inducement, the pre-planned arguments to negate anticipated exculpatory statements, and the manner of questioning.

It was found that the evidence should also be excluded on this basis, as the accused’s responses would have unfairly created a risk that the jury might take them as admissions, where it was clear that they were efforts to ease the complainant’s purported distress.

Section 84 creates the power to exclude admissions if they were influenced by violent, oppressive, inhuman, or degrading conduct, whether towards the person who made the admission or towards another person, or a threat of conduct of that kind.

Oppression encompasses mental or psychological pressure, and the Judge was not satisfied that the admissions were not influenced by the oppressive conduct of the complainant.

Finally, section 137 provides that “in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

Probative value refers to the ability of a piece of evidence to rationally affect the assessment of the probability of the existence of a fact in issue.

In this circumstance, the probative value was deemed limited, noting the matters outlined with respect to the preparation undertaken by the complainant, the disregard of the instructions from the police officer, the nature of her representations to the accused, and the persistent denials in the pretext call.

The probative value was deemed to be outweighed by the risk of unfair prejudice, in that the jury could attribute to them greater weight than they deserve.

Therefore, on all of these bases, the Judge refused to allow the evidence of the accused’s responses in the pretext call.

AUTHOR Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

View all posts by Poppy Morandin