26. Pretext Calls — Purpose, Admissibility & Exclusion (Vic)

Scope and currency

Cheat sheet · Evidence Act 2008 (Vic) ss 81–90, 135–138 · Surveillance Devices Act 1999 (Vic) s 6

What it is: a recorded phone call made by a complainant to an accused in the hope of obtaining admissions — almost exclusively in alleged sex offences. Ordinarily made at the suggestion of, and with the guidance of, investigating police, but police take no part in the conversation and the complainant operates the recording device voluntarily. No special rule of evidence applies — admissibility is governed by the ordinary rules. Pretext calls are often admissible.

The decision sequence

GATE 0 Lawfulness of the recording

→ Surveillance Devices Act: recording by a complainant at the suggestion of investigating police (without a warrant) is not prohibited by the Surveillance Devices Act 1999 (Vic) — the ordinary police method does not breach s 6 (WK v The Queen (2011) 33 VR 516). → Covert recording per se: the fact the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful (Pavitt v The Queen (2007) 169 A Crim R 452, 70).

GATE 1 Identify the prosecution's purpose — this drives everything

For what purpose does the prosecution intend to lead the call? → Express admissions: admissibility governed by ss 81–90 Evidence Act 2008 (Vic) plus the discretions in ss 135–138 (see separate Admissions notes). Go to Gate 2 and the exclusion arguments. → Implied admissions = Incriminating Conduct: qualifies as Incriminating Conduct ("an implied admission by the accused of having committed an offence charged or an element of an offence charged…") — the prosecution must follow the procedural steps (see separate Incriminating Conduct notes in Jury Directions notes). → Non-specific statements: where statements can't be linked to a particular alleged offence, the call may instead support other circumstantial evidence — e.g. to prove a sexual interest in an individual complainant, or as context evidence (PDI v R [2011] VSCA 446; JWM v R [2014] NSWCCA 248; R v GVV (2008) 20 VR 395).

GATE 2 Express or implied admission? The specificity spectrum

→ Implied (Incriminating Conduct) more likely where: the accused (1) demonstrates awareness of the offences alleged; (2) fails to deny the offending; or (3) makes a generalised admission across multiple allegations (WA v McBride [2015] WASC 275; R v LAF [2015] QCA 130; R v MBV [2013] QCA 17; Christian v R [2012] NSWCCA 34). → Express more likely where: the call involves a specific allegation/s met with a specific admission/s (R v Cavalli [2010] QCA 343).

GATE 2A Silence as an implied admission

Silence in response to an allegation by an equal party (the complainant in a pretext call, rather than a police officer) can be admissible in some circumstances. To infer implicit admission of guilt from silence, the jury must find both: → 1. the circumstances were such that, in ordinary experience, the accused would have been expected to respond to the statement made in his or her presence; and → 2. the only reasonable explanation for the silence is that the accused knew he or she had committed the wrongful conduct constituting the offence charged and feared a response would implicate him/her (R v Salahattin [1983] VR 521; R v MMJ (2006) 166 A Crim R 501).

Exclusion — the four standard arguments

Provision	Argument
s 90 Evidence Act 2008 (Vic)	Having regard to the circumstances in which the admissions were made, it would be unfair to admit them.
s 138 Evidence Act 2008 (Vic)	Evidence obtained improperly or in contravention of the law (or in consequence of impropriety/contravention) — does the desirability of admitting it outweigh the undesirability, having regard to the impropriety?
s 85 Evidence Act 2008 (Vic)	Were the circumstances in which the admission was made such as to make it unlikely the truth of the admission was adversely affected (unreliability)? See the s 85 deep-dive below — it frequently traps pretext calls.
s 137 Evidence Act 2008 (Vic)	Does the danger of unfair prejudice outweigh the probative value?

s 85 deep-dive — exclusion of unreliable admissions (1UNR)

The core concept — circumstantial reliability. s 85 (alongside s 84 for oppression) is the statutory replacement for the common law voluntariness rule in criminal proceedings. The fundamental shift: the court is no longer primarily concerned with whether police acted improperly — the sole focus is reliability. If the circumstances surrounding the admission created a real risk the accused might confess to something untrue, the evidence is out. Burden on the Crown, on the balance of probabilities, to prove the circumstances made it unlikely the truth of the admission was adversely affected. The court must exclude unless so satisfied (s 85(2)).

s 85 · 1 Step 1 — The gateway (s 85(1)): who was the admission made to?

Criminal proceedings only. s 85 does not apply to a confession made to a random bystander. It triggers only where the admission was made: → (a) Investigating official: to, or in the presence of, an investigating official who at that time was "performing functions in connection with the investigation of the commission, or possible commission, of an offence". Usually police. The definition is broad — arriving at a scene and asking "what happened here?" counts. But negotiating during a siege has been held to fall outside standard investigative functions (R v Mclaughlan (2008) 218 FLR 158; R v Naa (2009) 76 NSWLR 271). → Exception — covert operatives: undercover police or wired cellmates do not count — s 85 does not protect an accused who brags to a wired cellmate (R v Truong (1996) 86 A Crim R 188; R v Donnelly (1997) 96 A Crim R 432). → (b) Person capable of influencing the prosecution: as a result of an act of another person who was, and who the accused knew or reasonably believed to be, capable of influencing the decision whether a prosecution should be brought or continued. → THE PRETEXT-CALL TRAP: limb (b) frequently traps pretext calls. In R v Lieske [2006] ACTSC 97, a complainant conducting a recorded pretext call on behalf of police was deemed capable of influencing the prosecution. If the complainant aggressively interrogates the accused on the call, s 85 is enlivened.

s 85 · 2 Step 2 — The circumstances test (s 85(2)–(3))

If the gateway is met, the Crown must prove the circumstances did not compromise the truthfulness of the admission. s 85(3) mandates (without limiting) two categories: → Subjective vulnerabilities (s 85(3)(a)) — the accused: any relevant condition or characteristic — age, personality, education, and any mental, intellectual or physical disability the person is or appears subject to. A robust, highly educated suspect can handle aggressive questioning; a vulnerable one cannot. → — Mental health: even if an accused appears "superficially intact" to police, underlying conditions like schizophrenia drastically affect reliability (R v Munday (No 1) [2016] VSC 26). → — Language & culture: poor interpreting or deep cultural misunderstandings can render an admission unreliable, entirely independent of any police malice (R v Tang [2010] VSC 578; Bin Sulaeman [2013] NSWCCA 283). → Objective pressures (s 85(3)(b)) — the questioning: if made in response to questioning — (i) the nature of the questions and the manner in which they were put (aggressively leading?); (ii) the nature of any threat, promise or other inducement (e.g. "just tell us what happened and we'll get you bail").

s 85 · 3 The crucial distinction — circumstances vs objective truth: R v GP (2015) 35 NTLR 117

The judge is not deciding whether the admission is actually true; the judge is deciding whether the circumstances were likely to cause a false confession. Facts: a young Aboriginal man charged with sexual intercourse with a 13-year-old; the complainant later gave birth. In a formal interview, police bluffed that DNA testing against the baby would show if he was the father; he then admitted consensual sex "one time". DNA later excluded him as the father — making the admission factually false. Defence sought exclusion on a voir dire: the admission was induced by forceful DNA questioning, and police breached the Anunga guidelines (accused not asked to explain the right to silence back phrase-by-phrase). Decision: Supreme Court of the NT — admissible; the Crown may lead the interview. → Test for reliability: s 85(2) does not require the judge to determine the admissions are actually true — the inquiry is whether the circumstances (personal characteristics, potential police misconduct, compliance with procedural safeguards) made a false confession unlikely. → DNA bluff not improper: telling a suspect that infallible scientific evidence is about to catch them is designed to induce the accused to tell the truth — not an improper purpose; highly unlikely to induce an untruth. It might cause a guilty person to confess, but it doesn't force a lie. No threat or promise was made. → Procedural breaches ≠ unreliability: the Anunga shortcoming (right to silence not explained back in the accused's own words) was not a circumstance adversely affecting the truth of the admissions. Crown discharged its balance-of-probabilities burden.

Defence tactics — reviewing the ROI or the pretext call

• Do not wait for police misconduct: you do not need to prove police acted illegally (that is the s 138 argument). Point to the client being exhausted, intoxicated, intellectually disabled, or subjected to confusing translation — s 85 turns on circumstances, not fault.

• Attack the combination: combine subjective and objective factors — questioning that might be acceptable for a robust adult was highly likely to produce a compliant, false agreement from this specific, vulnerable accused.

• On a pretext call specifically: persistent, interrogation-style questioning by the complainant against a reluctant accused is the Lieske pattern — s 85(2) exclusion where the Crown cannot show the circumstances made a false admission unlikely, and s 90 where the method circumvented the right to silence and formal-interview safeguards.

The Pavitt principles — ss 90 / 138 framework

PAVITT Pavitt v The Queen (2007) 169 A Crim R 452 at [70] — adopted in Victoria

Police had a warrant; complainant was asked to think about what to say and was prompted with notes; recording admitted, appeal dismissed. The NSWCCA's non-exhaustive propositions on covertly recorded conversations: → (a) Underlying consideration: the accused's freedom to choose to speak to the police, and the extent to which that freedom has been impugned. → (b) Impugned freedom: if impugned, the court has a discretion to reject — turning on all the circumstances pointing to unfairness if the confession is admitted. → © Community standards: even absent unfairness, the court may find the confession was obtained at a price unacceptable by prevailing community standards. → (d) Unfair or improper: includes whether the accused had previously indicated a refusal to speak to police. → (e) Right to silence: infringed only where the informer caused the accused to make the statement and the informer was acting as an agent of the state at the time. Two distinct inquiries: (i) threshold — was the evidence obtained by a state agent? (ii) was the evidence elicited? → (f) State agent test: the exchange would not have taken place, in the form and manner it did, but for the intervention of the state or its agents. → (g) No eliciting behaviour: no violation — if the suspect speaks it is by choice, accepting the risk the recipient may inform police. → (h) Elicited when: the conversation was the functional equivalent of an interrogation and the state agent exploited special characteristics of the relationship; instructions given to the state agent may be important. → (i) Covert recording: not of itself unfair or improper, at least where lawful. → Complainant as state agent? the Court would not readily apply the label to a complainant speaking to a suspect who had not been charged nor refused to speak to police — look at the whole relationship, the participants' past history, what the conversation reveals, and whether police scripted it.

Significant cases

Case	Outcome	Key points
R v Lieske [2006] ACTSC 97	Excluded	Rape charges; call from police station; accused unaware of investigation; persistent interrogation-style questioning against repeated reluctance to speak by phone; responses equivocal, no clear admissions. Excluded under s 85(2) Evidence Act 1995 (Cth) — prosecution failed to show circumstances made it unlikely the truth was adversely affected; s 90 — police deliberately used the pretext method to circumvent the right to silence and avoid formal-interview safeguards. Held: a complainant can in some instances be a "person… capable of influencing the decision whether a prosecution… should be brought or continued" for s 85(1)(b) — so s 85 applies to pretext calls in some cases.
WK v The Queen (2011) 33 VR 516	Admitted	Interlocutory appeal; attempted procuring of sex pen by threats/intimidation; exclusion would have "eliminated or substantially weakened" the case (s 295(3)(a) Criminal Procedure Act 2009 (Vic)). Ordinary pretext method is no breach of s 6 Surveillance Devices Act; adopted the Pavitt summary of the ss 90 / 138 principles; complainant lawfully operated the device herself; not an unfair interrogation infringing the right to silence.
Pavitt v The Queen (2007) 169 A Crim R 452	Admitted	Warrant in place; complainant prompted with notes; recording not the functional equivalent of an interrogation; freedom to choose whether to speak not unfairly infringed. Source of the [70] principles above.
R v GP (2015) 35 NTLR 117	Admitted	DNA-bluff admission factually false yet legally admissible — s 85(2) asks whether the circumstances would cause a false confession, not whether the admission is true. Bluff designed to induce truth; Anunga breach did not affect truthfulness.
R v Burton (2013) 237 A Crim R 238	—	The Pavitt principles applied again.