A pre-text call (or communication) is a common tool used by police for the purpose of obtaining admissions from people who are suspected of sexual offences. It is most commonly used in circumstances where there has been a delay in the alleged offending and the reporting of those events to the police.
These calls will often take place before a suspect has become aware that the police have commenced an investigation of them, and before that suspect has been provided with an opportunity to participate in a formal interview with police (or to instead exercise their right to remain silent and choose not to participate and assist the police in their investigation).
In circumstances where the police have chosen to question the suspect themselves, they are required to caution them and if there is a subsequent arrest the statutory obligations under Part 9 of the Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) (LEPRA) become engaged. Where the person speaking to the accused is not a police officer, there will not normally be an obligation to caution the suspect that they do not have to say or do anything, and that anything they choose to do or say may be used as evidence, and as a result it is unlikely that the evidence can be excluded as a result of an illegality of impropriety by the investigating authorities.
A pre-text call will typically involve a complainant contacting a suspect (whether directly by telephone, or via text message or through a social media application) and asking a series of questions which are effectively a series of allegations. These allegations are often combined with a request or demand that the suspect admits to, or apologises for, their past behaviour. These conversations are often highly confronting and emotionally charged and sometimes involve the use of persuasive techniques which are intended to cause the suspect to admit to their alleged wrongdoing.
Nevertheless, these recorded admissions are not necessarily admissible as evidence in any subsequent criminal prosecution. There are various safeguards in the Evidence Act which may prevent the admission of evidence of admissions which have been influenced by violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards someone else, or by threats of that conduct.
The Court also has a discretion to refuse to admit evidence where it would be unfair to a defendant to use the evidence, or its probative value is outweighed by the danger of unfair prejudice. The Court may also exclude this evidence where its probative value is outweighed by the danger that it may be misleading or confusing. The risk of unfairness is particularly relevant to covertly recorded conversations.
In R v Paris (1993) 97 CR App R 99, a police interview which involved shouting, bullying and hectoring was held to be oppressive conduct. In that matter, the accused repeatedly denied his involvement and later made an admission of wrongdoing. When weighing up whether conduct amounts to oppression, the courts have held that this assessment is a matter of degree and depends to a considerable extent on the precise circumstances of the questioning and the character of a suspect.
Regina v Em [2006] NSWCCA 336 was a case where a suspect was cautioned by police, and the suspect said that he would not agree to a recorded interview. Police then obtained a listening device warrant, and covertly recorded a conversation with Em in which he made admissions. It was held that there was no error because the police had not deliberately caused Em to wrongly believe that the record of interview could not be used against him.
In a case where the police covertly record a conversation between a suspect and person acting as an agent of the police, the NSW Court of Criminal Appeal has said that the following principles apply (in Regina v Pavitt (2007) 169 A Crim R 452 at para [70]):
(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.
McColl JA and Simpson J also said that they would not readily find that a complainant making a telephone call to a suspect, who had not been charged, and who had not exercised his right to silence, as a ‘state agent’.
If you are concerned that someone has contacted you, or attempted to contact you, alleging that you have engaged in criminal conduct, and requesting that you admit to or apologise for this conduct we recommend that you do not respond to these communications and instead seek legal advice immediately. One of the most effective ways to protect yourself from criminal prosecution is to receive comprehensive advice as to the circumstances where it is appropriate to exercise your right to silence.
To discuss your options, call Hugo Law Group in Sydney, NSW (02 9696 1361), Canberra (02 5104 9640), Perth (08 6255 6909) or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.
