Director of Public Prosecutions v Drummond (Ruling No 1)
[2024] VCC 2137
•19 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01844
CR-23-01845
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| TOM DRUMMOND RYAN LYNCH | Defence |
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JUDGE: | RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 May 2024 | |
DATE OF RULING: | 19 June 2024 | |
CASE MAY BE CITED AS: | DPP v Drummond & Anor (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2137 | |
RULING
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Subject:CRIMINAL LAW – Pre-Trial Ruling
Catchwords: Re LYNCH: Admissions --- Record of Interview --- Persistent questioning in the face of No Comment --- Pressure --- Inducement by reference to legal outcomes --- Young accused --- Adverse impact of questioning on reliability of admissions --- Improperly obtained evidence --- Unfairness Discretion
Re DRUMMOND: Accused exercised right to silence during interview --- Immediately after interview police covertly recorded a further interview with him --- Admissions --- Improperly Obtained Evidence --- Unfairness Discretion
Legislation Cited: Evidence Act 2008 ss. 85, 90, 138 --- Criminal Procedure Act 1991 --- Crimes Act 1958
Cases Cited:Tofilau v The Queen [2007] HCA 39 --- Em v The Queen [2007] HCA 46 --- DPP v Hou [2020] VSCA 190 --- DPP v Marijancevic (2011) 33 VR 440 --- McDermott v The King (1948) 76 CLR 501 --- R v Pritchard [1991] VR 84 --- R v Amad [1962] VR 545 --- R v Swaffield (1998) 192 CLR 159 --- R v Em [2003] NSWCCA 374 --- R v Smith [1964] VR 95 --- R v Sumpton [2014] NSWSC 1432 --- R v Archer (No 1) [2021] NSWSC 569 --- Ridgeway v The Queen (1995) 184 CLR 19 --- Wu (a pseudonym) v The Queen [2020] VSCA 94 --- Haddara v The Queen (2014) 43 VR 53 --- R v Lee (1950) 82 CLR 133 --- R v Jeffries (1947) 47 SR (NSW) 284
Ruling: Re LYNCH: Interview excluded pursuant to ss.85, 138, 90 Evidence Act 2008
Re DRUMMOND: Covert recording excluded pursuant to ss.138 and 90 Evidence Act 2008
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P Teo | Office of Public Prosecutions |
| For the Defendant LYNCH For the Defendant DRUMMOND | Mr M Reardon Mr W Blake | James Dowsley & Associates Slades & Parsons |
HER HONOUR:
121 year old Ryan Lynch and 25 year old Tom Drummond are charged with offences of home invasion, aggravated burglary and armed robbery in relation to an incident which occurred in Forest Hill on 28 February 2023.
2They were both arrested in the days which followed and were both interviewed by investigating police, informant Detective Senior Constable Sonia MacDonald and her corroborator Detective Senior Constable Maverick Gleed.
3Mr Lynch initially exercised his right to silence during his interview, making no comment for approximately 100 questions. Eventually he gave answers, some of which constituted admissions to the offending or various aspects of it.
4Mr Drummond was arrested in the days which followed and was interviewed by the same two Detectives. Mr Drummond exercised his right to silence and made no comment. Immediately after the record of interview concluded, while still in the interview room, DSC Gleed activated a covert recording device and the two Detectives proceeded to further question Mr Drummond about the alleged offending. He made various admissions.
5This is a pre-trial hearing to determine applications made by both accused to exclude evidence regarding the police interviews and investigation.
6First, Mr Reardon on behalf of Mr Lynch makes application to exclude his record of interview or portions of it which contain admissions. Specifically, the questions which arise for my determination relate to the nature and manner of questioning by the two Detectives, in particular in the nature of repeated and persistent entreaties to the effect that Mr Lynch ‘appeared remorseful’; that it was ‘important’ for him to talk and to provide his version of events; and further, what are said to be inducements to the effect that making admissions would not change the fact he would be charged, and would result in more favourable legal outcomes.
7The second is an application made by Mr Blake on behalf of Mr Drummond to exclude the covertly recorded conversation made immediately after the interview.
8Both applications are made pursuant to provisions of the Evidence Act 2008. The questions which arise for my determination are as follows –
(a) Whether pursuant to s.85 and taking into account the personal attributes of the particular accused, the nature and manner of questioning, are such as to adversely affect the reliability of the admissions he made; and/or
(b) Whether pursuant to s.138 the evidence was improperly obtained, with specific reliance for Mr Drummond on s.139 which deems evidence to have been improperly obtained if a suspect was not cautioned before being questioned; and/or
(c) Whether pursuant to s.90 the circumstances in which the admissions were made would render it unfair to the particular accused to admit that evidence at his trial.
Circumstances of the offending
9In brief, the allegations are that at about 9:55pm on 28 February 2023 Mr Lynch and Mr Drummond entered the home of Audrey Baker in Forest Hill. Both accused were known to Ms Baker and to her sister Phoebe. Audrey Baker was present with her friends, Natasha Vennell, Will Lane and Byron White. Ms Baker’s sister Phoebe and her mother Joanne were present in other areas of the house.
10The two accused are alleged to have entered through the front door, which was unlocked. Mr Drummond is alleged to have been in possession of a black baseball bat with a wooden handle, and similarly Mr Lynch is said to have been in possession of another bat.
11Once inside the premises it is alleged that Mr Lynch made demands for money before grabbing a kitchen knife from the coffee table. He is alleged to have held the knife to Audrey Baker’s face and shin before grabbing Ms Vennell’s handbag and struggling with her over the bag. After taking the bag, both men left the home.
12Phoebe Baker, on hearing a commotion, saw two men run out the door and recognised those as the two accused. Mr Lane is apparently known to Mr Lynch however he refused to provide a statement. Mr White also declined to make a statement.
13Natasha Peterson, the partner of Mr Lynch, observed Mr Lynch and Drummond return home to Mr Lynch’s house some short time later. She states that they were in possession of a handbag and other items consistent with what Audrey Baker and Natasha Vennell alleged were stolen.
14Police attended the premises of Mr Lynch at approximately 1:15am on 1 March 2023 and located various stolen items, including the handbag and its contents, along with a black baseball bat with wooden handle, and a metal pole. Some of the stolen items included a bankcard in the name of Audrey Baker.
Interview – Mr Lynch
15Mr Lynch was arrested later the same day and was interviewed. Mr Lynch was 20 years and 3 months old at the time of his interview.
16He did not seek legal advice prior to the interview but made reference to what his lawyers had told him previously.
Q 50 – Is there a reason why you want to say ‘no comment’ in this interview?
A – Well it’s just what my lawyer always tells me to do. Just “no comment” so they don’t put more charges on me.’
17Soon after, the investigators adopt the following approach –
Q 53'Cause when you were arrested this morning, you were quite remorseful. You seemed - - -
A Yeah, I'm fuckin' upset about it.
Q 54 Yeah.
…
DETECTIVE SENIOR CONSTABLE MACDONALD
Q 56You seem like it's really - it was really affecting you, and you became quite emotional, so I think that's important to talk about.
DETECTIVE SENIOR CONSTABLE GLEED
Q 57 Mm.
DETECTIVE SENIOR CONSTABLE MACDONALD
Q 58 Something's - something's happened last night - - -
A Yep.
Q 59 and I want to discuss that with you.
A Yep.
Q 60 What can you tell me about what happened last night?
A Well, what - pretty much what you've - well, pretty much what you've said. It's pretty much all true.
18And later
Q 77And you're clearly - you're clearly upset about it. You're clearly remorseful about it.
DETECTIVE SENIOR CONSTABLE GLEED
Q 78 Mm, yeah. You are.
…
DETECTIVE SENIOR CONSTABLE GLEED
Q 81 We can see that you're quite remorseful.
A Yeah.
Q 82So we've just obviously got a version, and there's obviously things going on with you as well.
A Yeah
Q83 Now, this is your opportunity to maybe just explain why - why it - why it happened. I know it might be hard to talk – talk about but –
A Just – – –
Q 84 it’s important.
AI met up with the wrong person. Tom, like, he’s been a drug addict for a while.
Q 85 Yep.
AAnd I've been doing fuckin' so well for, like, ages. And this is .......... talk about. Besides that, I go to work five days a week. Fuckin' - I've got a car, got a - got a house, got a girlfriend. Oh, I'm like - I don't use when I'm - when I fuckin' don't see other people.
19Understandably the investigators were looking to establish the elements of home invasion, specifically admissions to trespass, an intention to commit theft at the time of entry, and that the two accused were acting in company – ie. had a common purpose at the time of entry.
20Mr Reardon on behalf of Mr Lynch submits that the impugned portion of the interview can be divided into three sections – answers prior to Q121 which largely consist of no comment; answers from Q121-131; and answers from Q225.
21He submits that the police officers, and specifically DSC Gleed not only ignored Mr Lynch’s statements that he did not wish to continue answering questions, but offered inducement to him, specifically by reference to court outcomes. In support of that argument he highlights the following (emphasis added) –
A 121 I dunno. I just wanted to save my money. I don’t really want to talk about it anymore. I just ---
Q 122 I – I know it’s – I know it’s hard, but I think it’s important, ‘cause you are remorseful of what you did – did last night.
A 122 Yeah, but it’s going to make me even worse in court, and then I’m going to get so much time and I’m not going to get my life back ever again. I dunno, man. I fuckin’ went there, got xannies. I dunno. I dunno, man.
Q 123 Do you remember why you had a baseball bat?
A 123 Nup. I – I normally got a baseball bat in my car in case someone tries to fuckin/ hurt me.
A 124 OK
Q 125 As I said I know it’s hard, and we do appreciate, you know – it – you’ll – you’ll feel better getting it off your chest and I know it’s - - -
A 125 – yeah but its going to get me more time.
Q 126 No, no, not necessarily. It actually looks better for you that you are remorseful and you take account of what you’ve done last night. You obviously made a poor decision.
A 126 I made a fucking terrible decision.
Q 127 You’ve – you’ve – you’ve got your life on track.
A 127 Yeah.
Q 128 And this is just a bump in the road. So if you – if you hide away from it and suppress it, it’s no good for anybody.
22Further, –
Q 166 Yep.
A 166 I'm just coming to get - I dunno, man. I feel like I'm just making this situation so much worse.
Q 167 Well, not really. It's - it's - it's a similar version that we've got. But we just want to understand where you were at the time. And as I said. it doesn't sound like what you would normally do. It sounds like you’ve - it sounds like you've you've made a - a poor decision last night, and we just want to flesh it out, get it over with.
A 167 Mm.
Q 168 You'll - you'll feel better getting it off your chest. Trust me. I could see - I could see you're visibly upset by what you've done last night, and this is a good way to actually heal. And it's – you know, when you explain - when you've got a problem or something's happened, sometimes talking it out and getting a bit of - a rationale of what you've done actually helps.
A 168 Mm. well, I don’t – I don’t ---
Q 169 And it's - and - and it's not going to change what happens next. In fact, in my opinion, it will help you.
A 169 I – I don’t – I really don’t even know it man.
Q 177 Yep. And what did you do with that baseball bat when you were inside the house?
A 177 Nothing. I think I just pulled it out and said, “I’m – I’m not gunna pay. I’m just taking it.” I didn’t swing at no-one. I wasn’t going to hit no-one with it.
Q 178Yep. So you took it out and said, “Oh, give me your whatever. I’m not going to pay for it.”
A 178 Yeah, well that’s – well, now you’re just going to give me an armed robbery charge or something. See, this is gunna make it so much worse for me, man. No comment, no comment.
Q 179Well, as I said to you, Ryan, we've got a version of events from people that were there and that's consistent with what you're saying right now. And as I mentioned to you before, it’s – it’s not going to be here nor there whether you - it - I'm telling you, it's going to be better for you if you get it off your chest. You'll feel better. I – I ---
A 179 I don’t care if I feel better man, I just want to go home.
23A further exchange occurred, as follows -
Q 223 … And what was the conversation [with Drummond] after – like in the car?
A 223 He didn’t – I dunno.
Q 224 Pardon?
A 224 Nuh, no comment. Yeah, no comment.
Q 225 Well, it’s important, Ryan.
A 225 Like, well ‘cause I’m just going to get everyone – all this stuff’s going to happen and it’s going to make – I’m going to get more charges, more this, more time. Like, life’s already fucked. Now I lost my job. Now I lost my fuckin’ missus, probably. Now I lost this house. I’m – so no fucking point, man. There’s no fucking point, man.
Q 226 Well, as we said, Ryan, like it -it -it sounds like you just made a poor choice last night, and the best thing to do is to own it. In regards to what you say at the moment, it’s probably not going to affect the result. However, if you do show remorse, take accountability of your actions, it’s going to look much better for you when this goes to court.
A 226 Well, I went there to get drugs. We knew we weren’t going to take the – we knew we weren’t going to pay for the drugs. Went there, that happened, gone home, that’s it. That’s it. Can you just fuckin’ shoot me already?
24At the Committal hearing DSC MacDonald agreed that she understood the reference by Mr Lynch to ‘more time’ as a reference to a longer prison sentence if he made admissions. She said she did not consider pausing the interview so that he could obtain legal advice, but agreed he was ‘potentially’ concerned about incriminating himself.
s.198B Hearing
DSC Gleed
25Both Detectives gave evidence before me at a s.198B hearing on 14 May 2024. DSC Gleed agreed that he was aware of the elements of home invasion. He agreed that he and DSC MacDonald persisted in questioning Mr Lynch for the purpose of obtaining admissions to establish those elements.
26Home invasion is an offence which carries mandatory imprisonment unless exceptional circumstances apply.
27He agreed that he has received training regarding what can and cannot be said to a suspect, and in particular he was aware that he cannot offer any inducement or give legal advice. He agreed -
And similarly, you're aware at the time of the interview with Mr Lynch, that you were in a position of conflict, between trying to obtain the truth and his rights to rely on his right not to - his right to silence. That was obvious to you at the time of this interview, wasn't it?---Yes.
28His evidence continued –
At the time that you said, 'It looks better for you'. That was a reference to court proceedings, wasn't it?---No, it was a reference about telling the truth being the right thing to do.
All right, so who did it look better for him - to whom did it look better?---Well, I think if you make a mistake on your own moral compass to urge him to tell the truth, I think it would be better for him.
But to whom?---Well, to tell the truth is the right thing to do. So that's what I was urging him to do.
All right. I'm not asking about the earlier statements about, 'You will feel better', et cetera. I'm asking you about the statement, 'It actually looks better for you'. Who were you talking about being the person in a position of judgment?---Well, I was talking about him taking accountability for his actions and it is always better when you tell the truth and you own up to the wrongdoing that you're doing…
All right, so do you deny then that, on your oath, that you were referring to it looking better for him court?---Yeah, I deny that.
And that was even after the context of him saying immediately beforehand, 'Yeah, but it's going to get me more time'?---Yes.
When he said that did you realise that he was talking about court proceedings?---Yes.
29And later –
HER HONOUR: So what did the, 'No, no, not necessarily', relate to?---It relates to the taking account of wrongdoing that you've done, um, you'll carry a burden of when you do the wrong thing and you do feel better when you tell the truth and take accountability.
Was that in response though to him saying, 'It's going to get me more time'?---Yes.
So what did it mean?---Well, what it meant was for him to tell the truth about what happened.
'No, no, not necessarily going to get you more time', isn't that the answer?---Yes.
30DSC Gleed gave the following evidence -
I'll take you forward to … Question … 166, actually, where Mr Lynch stated to you, 'I'm just coming to get - I don't know, man. I feel like I'm just making this situation so much worse'. Do you recall him saying that?---Yes.
And again, did you understand that to be a reference to his likely court proceedings?---Yes.
And you answered, 'Well, not really. It's a similar version than what we've got. But we just want to understand where you were at that time. As I said, it doesn't sound like what you would normally do. It sounds like you've made a poor decision and we just want to flesh it out; get it over with'. Do you recall saying that?---Yes.
And again, was any of that a reference to the likely consequences of anything he said in his record of interview in any judicial proceedings?---No.
And specifically, if I were to suggest to you that when you said, 'Well not really', in response to him saying, 'I feel like I'm just making this situation so much worse', if I suggest to you that you were attempting to allay his concerns about waiving his right to silence, would you agree or disagree?---I was trying to urge him to tell the truth.
31Further –
So when you said, 'Well not really', that was a direct response to Mr Lynch saying, 'I'm just making this situation so much worse'?---Yes.
And you understood when you said that, that that was a direct response to him expressing concerns about the legal consequences of making admissions?---Yes.
32Later still –
At Question 169, you said, 'It's not going to change what happens next. In fact, in my opinion, it will help you'. Again - - -
…
And again, was that a reference to his legal situation, that it would help him to do so?---Yeah, what I've answered before.
HER HONOUR: Sorry?---What I've answered before. So ah - - -
Yes?---urge him to tell the truth; being the right thing to do.
MR REARDON: All right. So you maintain then, at Question 169, you weren't trying to convey any - that he could obtain any advantage in court cases by speaking to police?---Well, I think that if you tell the truth and it does come down to court, it is going to look better if you tell the truth.
All right. So at this question, were you trying to convey that it would be in his advantage in a court case if he made admissions?---Yeah, I said, try and make him tell the truth, because I said, 'When you tell the truth it looks better for you. Everyone - no one likes people to tell lies. It looks better when you tell the truth and you own up'.
All right. So is that a yes, then - - -?---Yes.
- - -at Question 169?---Yes, yes.
33DSC Gleed stated –
When you say – in whose interest is it for him to tell the truth? Is it in his interest to tell the truth at court?---Yes.
And ultimately that's to be reflected in what way?---Well, telling the truth is much better than lying.
… In what way – when you say it's better than lying are you talking about there being a benefit to Mr Lynch beyond assuaging a guilty conscience?---No.
So again, you're suggesting that you at no stage intended to convey that he would receive a better outcome at court?---I'm not saying he's going to receive a better outcome, I just believe that if you tell the truth and stand out that you tell the truth, it's better than lying.
So again, when you said, 'In fact in my opinion it will help you', do we take your evidence is that that was not meant to convey that the fact that it would help you in court?---No.
34Further –
All right. Did you stop the interview at this stage saying if he's made enough admissions for us to prove?---No.
Because you need more?---Yes.
And you thought you'd be able to get more?---Yes.
35Further –
The missing piece seemed to be what their intention was on going in, is that right? Is that fair?---Yeah, yes.
That only they could give?---Yes.
Is that what you were attempting to get out of him?---Yes.
…
So when you understood that issue of their intention going in was an important element of proof, yes?---Yes.
So what he did say may actually change what he was ultimately going to be charged with, wouldn't it?---Well, it was his account that we wanted to find. We've spoken to other witnesses there provide accounts. Um, with the evidence that we had we had enough evidence to charge and we wanted to find out – it's the fine grain detail of his involvement and what happened.
Sure. But you agreed before that the one piece of evidence that only could come from the accused was what was in their minds before they went in, yes?---Yes.
So that would change what they'd be ultimately charged with, wouldn't it?---Yes.
So when you said to him, 'It's not going to change what happens next', actually that's not correct, is it?---Well, at that point, ah, we wanted to get his recollection. Um, we had enough to charge at that point for the offence.
For some offence, sure?---Yes.
You certainly had enough, they'd been ID'd by people who knew them, you found the belongings, but it's a matter of what they were going to be charged with, wasn't it?---Yes, and what you could prove.
36He agreed –
And you responded by saying, 'Well, as I said, as we said, Ryan, like it sounds like you've just made a poor choice last night, and the best thing to do is to own it. In regards to what you say at the moment, it's probably not going to affect the result. However, if you do show remorse, like, sorry, take accountability of your actions, it's going to look much better for you when this goes to court'. …
When you said, 'It's probably not going to affect the result', we take it, that was a reference to the result of whether or not he'd be charged?---Yes.
37Despite that agreement, he later stated –
All right. So when you're talking about taking accountability and what you were trying to do, is that meant in a psychological perspective, in that he'll feel better for living without a guilty conscious, or was it a reference to what's in his legal interests when the matter goes to court?---Well, if you tell the truth, you're naturally going to feel a lot better; and holistically, it looks better if you tell the truth than if you lie.
So when you said, 'It looks much better for you when this goes to court', was that intended to convey to Mr Lynch that it was in his legal interest to make admissions?---No. It - it was in his interest to tell the truth; and that if the truth comes out in court, you've told the truth, it looks better than if you lie.
And looks better to whom?---Looks better to him.
So not to a judge, for example?---Ah, looks better to him if he's told the truth.
Well, why I'm asking is - well, what I'm suggesting, actually, is when you said, 'It's going to look much better for you when this goes to court', is that was a reference that he will be sentenced on a more favourable basis if he makes admissions. Do you agree or disagree?---If he tells the truth, takes ownership, I believe, it looks better in court, yes.
38He eventually agreed that what he meant was it would look better in front of a sentencing judge in terms of sentencing outcomes.
39DSC Gleed agreed that although they already had enough evidence to charge Mr Lynch, his answers had the capacity to affect what he was charged with, including whether there was sufficient evidence to charge him with home invasion. He said –
So it was a matter of then determining which one or ones to charge; was that right?---Yes.
And that may depend on what he said in the record of interview?---Yes.
DSC MacDonald
40DSC MacDonald also gave evidence as follows.
HER HONOUR: Did you have any - when you look at questions asked by Detective Gleed, so 126, where he asked, 'It actually looks better for you', did you understand that was a reference to things looking better when it went to court?---It could be interpreted as that, yes.
…
MR REARDON: Yes. When did you see the evidence, 'It's going to get me more time', did you take that to be a reference to a longer prison sentence?---Yes.
41She agreed that questions were directed to obtaining answers as to whether there was any discussion between Mr Lynch and Mr Drummond prior to entering the house to establish acting in company. She agreed that depending on his answers, that may lead to additional charges. She said –
My question is the capacity was there, wasn't it, for him to make admissions that would lead to additional charges or more serious charges being laid?---Possibly, yeah.
Submissions in relation to Mr Lynch
Defence
42Mr Reardon makes the following arguments for exclusion -
(a) that any admissions made by Mr Lynch were made following his repeated statements that he did not wish to continue the record of interview;
(b) that the police nonetheless continued questioning him including offering him what amounted to legal advice regarding the likely consequences of his answers;
(c) that a deal of the questions or comments made by the two Detectives about the likely consequences of any admissions were false or at least potentially inaccurate – such as, that answers he gave would not affect what he was going to be charged with, would not affect the Court outcomes and specifically would not have the capacity to result in more prison time.
43He highlights the broader circumstances which include the following matters –
(a) the fact of Mr Lynch’s age;
(b) that he had told police early in the interview of his distress at having his life in order and recognising that this offending would impact his work, housing, relationship;
(c) that he displayed obvious distress;
(d) that his partner described him as drug affected during the period between approximately 1:30pm and 11pm on the previous night;
(e) that Mr Lynch admitted to some drug use the previous night;
(f) that when police attended his residence in the early hours of the morning he was not present, implying that he may not have slept;
(g) that he made comments about his lack of memory about what occurred.
44Mr Reardon submits that the persistence of the questioning is reflected as Mr Lynch’s initial resolve to make no comment then morphs into some uncertain admissions and guesses before he is eventually induced to make full admissions when it is clear the questioning will not cease until he has answered the specific points the two Detectives are pursuing.
45In those circumstances he submits that I cannot be satisfied that the reliability of the admissions has not been adversely affected. Once I reach that point, pursuant to s.85, exclusion of the admissions is not discretionary.
46Further, he submits that the nature and manner of questioning in those circumstances amounts to an impropriety on the part of the two Detectives pursuant to s.138. He submits the persistence by the two officers to obtain admissions to home invasion was in circumstances where that intention was in conflict with the accused’s expressed desire to exercise his right to silence.
47He submits the nature and manner of questioning here is inconsistent with the minimum standards which society would expect and require of those entrusted with powers of law enforcement. In making that submission he relies specifically on the statements made at questions 126 (that he would not necessarily get more time if he made admissions), and 226 (that what he said was not going to affect the result) as being false and made in circumstances where the Detectives ought reasonably to have known that the statements made were false and likely to cause the person being questioned to make an admission.
48If I am satisfied of an impropriety per s.138 then it falls on the prosecution to satisfy me that the evidence ought nonetheless be admitted, taking into account the matters outlined in section 138(3). He submits that balancing exercise in this case should lead to exclusion of the interview.
49Finally, he submits that failing exclusion via s.85 or s.138, the evidence should be excluded pursuant to s.90 as a result of the unfairness of using the record of interview in the Trial of the accused due to the circumstances in which it was obtained.
Prosecution
50In response, Mr Teo on behalf of the Prosecution submits that Mr Lynch’s early reference to other legal advice demonstrates he was aware of his right to make no comment. He disputes that the comments and questions made by either Detective amount to legal advice or any inducement. He submits the suggestion that the accused was in a position of vulnerability due to the surrounding personal circumstances is unfounded. For those reasons he submits the Prosecution has discharged its burden under s.85.
51He submits that the defence bear the burden of establishing an impropriety and a causal link to the making of admissions per s.138. Mr Teo submits that there is no impropriety in a police officer persisting with questioning in the face of a suspect making no comment; that they are under a duty to ascertain facts which bear upon the commission of the offence and not bound by an accused answering no comment.
52He disputes that the comments made by the officers were likely to substantially impair the ability of Mr Lynch to rationally respond to questioning in circumstances where he had an understanding of his right to silence.
53He submits that even if I find the conduct was improper I must undertake the balancing test required by s.138(3). He submits the evidence has high probative value; that it is important and the Prosecution case while not eliminated, would be substantially weakened without it; that the offending is serious; that any impropriety if found is not of high gravity; that it could not be seen as deliberate or reckless; and that evidence of intention would be difficult to obtain from another source.
54In relation to s.90, Mr Teo submits the inquiry is whether the circumstances of the making of the admission amounted to an unfair derogation of the accused’s right to exercise a free choice to speak or maintain his silence. He submits Mr Lynch is not placed in any forensic disadvantage by the conduct of the interviewers.
Interview – Mr Drummond
55Two days after the incident, on 3 March 2023, Mr Drummond was arrested and was interviewed that day by DSC MacDonald and DSC Gleed.
56The interview commenced at 12:17 PM. Other than giving his name, date of birth and address, he made a no comment record of interview.
57Towards the end of the interview, DSC MacDonald asks Mr Drummond why he was emotional at the time of his arrest at Box Hill Central. Mr Drummond detailed that his girlfriend had just told him that she regretted getting back together with him and that their relationship was over. He said he had just stood up to say goodbye to her at the time he was arrested and for that reason ‘this whole situation sort of made me break down a bit’. –
DETECTIVE SENIOR CONSTABLE GLEED
Q45 Is there a reason why?
A No comment.
Q46 Like Sonia mentioned, it appears that you knew the people. And then what's unfolded has been reasonably violent. We just wanna know why.
A Nuh, I've got nothing to say. No comment.
Q47 Do you feel remorseful for what has happened?
A No comment.
Q48 Are you sorry for what you did?
A No comment.
Q49 How do you reckon the victims felt?
A No comment.
Q50 What do you think your mum would think about this incident?
A (NO AUDIBLE REPLY)
DETECTIVE SENIOR CONSTABLE MACDONALD
Q51 It's a pretty serious incident. We're talking about a home invasion. We're talking about armed robberies. We're talking about aggravated burglary. We're talking about assault. it's serious offending. Surely you've got something to say for yourself.
ANo, I'm already in enough trouble. I don't need to say anything that'll make it worse.
DETECTIVE SENIOR CONSTABLE GLEED
Q52 Well, I don't think you talking about what happened and being remorseful and maybe sorry for what happened I don't think that's gunna do you any harm. It will probably do you some good.
A Then it's making admissions.
DETECTIVE SENIOR CONSTABLE MACDONALD
Q53 It's not --- not
A And it'd be - that' d be me saying that I - that it happened.
Q54Well, we know that it happened, it’s not about making admissions. It -- it's maybe providing an explanation as to why. What happened?
A (NO AUDIBLE REPLY)
Q55 What happened?
A Nuh, no - no comment.
Q56 This is your opportunity to have your say. Do you understand that?
A Yes, I understand that, but I have no comment.
DETECTIVE SENIOR CONSTABLE GLEED
Q57 Think, just back - what do you think mum's going to think about this?
A Nothing.
Q58 From looking at you, Tom, having a brief look at who you are as a person and your interactions with police, to me, this would sound well, this incident looks to be a bit out of your character.
A Yeah.
Q59 We all make mistakes and do silly things in life.
A Yeah.
Q60 I think - I suppose, what we want to know is just, a bit of an explanation of why this happened, which might account to the unusual – this being unusual for someone of your character to do.
A I have no comment.
Q61 My understanding is that there was some drugs involved - that it was, potentially, you were there to get some drugs. And then from the buying of the drugs, it changed to taking the drugs. Why did that change?
A I make no comment.
58Prior to the conclusion of the interview, Mr Drummond is told that he will be charged. He is asked whether he wishes to say anything else in answer to the charge, and replies no. He is asked if he would like to make a further statement in relation to this matter, and he says no.
59The interview concludes at 12:36 PM.
Covert recording
60On the conclusion of the record of interview, DSC MacDonald notes that she stopped the recording which caused the recording unit to play back 10 seconds of each disc. She then certified those recordings and gave the accused one of the discs.
61The written statement of DSC Gleed dated 6 March 2023 records the following –
18Nearing the end of the record of interview, I had a feeling DRUMMOND may speak about his involvement in the matter after the record of interview ceased. I made this assessment by his body language and general feeling by the responses he made to the allegations and emotions he was displaying during interview.
19Just after the record of interview ceased at 12:36pm, I activated voice recording at 12:37pm, which captured conversations had between DRUMMOND, MACDONALD and myself, post record of interview. Immediately after the interview, DRUMMOND mentioned without being prompted, that we had some facts mixed up with his involvement. DRUMMOND than went on to make admissions about the offending and his involvement with LYNCH.
20The recordings continued with DRUMMOND post interview in the interview room and while I took his fingerprints. The recordings ceased after 29 minutes when DRUMMOND was lodged back in a holding cell. The recordings ceased at 1:06pm.
62The statement of DSC MacDonald simply records the following –
23 At approximately 12.36 pm Detective Senior Constable GLEED commenced an audio recording between himself, Tom DRUMMOND and myself. Tom DRUMMOND detailed his involvement in the offending at 1 Jaques Grove, Forest Hill on 28 February 2023. At approximately 1.06 pm the recording ceased.
24 I produce the Master Disc of that audio recording.
63The covert recording commences as follows –
DETECTIVE SENIOR CONSTABLE GLEED: All right. So you understand that - that's fine, mate, if you want to say "no comment" off - off tape. Is there anything that - that we've missed in the interview?
MR DRUMMOND: Interview, yeah, there's a bit of information that's not correct.
DETECTIVE SENIOR CONSTABLE MACDONALD: What?
DETECTIVE SENIOR CONSTABLE GLEED: What's not correct about it?
MR DRUMMOND: (inaudible)
DETECTIVE SENIOR CONSTABLE MACDONALD: O.K.
DETECTIVE SENIOR CONSTABLE GLEED: What do you mean by that?
MR DRUMMOND: There was no knife involved and it was me that had the baseball bat.
DETECTIVE SENIOR CONSTABLE GLEED: Yeah. What did you do?
MR DRUMMOND: I just stood there.
DETECTIVE SENIOR CONSTABLE MACDONALD: Did you make any threats?
MR DRUMMOND: (NO AUDIBLE REPLY)
DETECTIVE SENIOR CONSTABLE MACDONALD: Whose idea was it?
MR DRUMMOND: I honestly can't remember.
DETECTIVE SENIOR CONSTABLE MACDONALD: Did you just make the plan in the car, "All right, let's just rip 'em off, not pay for it." Is that the go?
MR DRUMMOND: Bit - bits ..........
DETECTIVE SENIOR CONSTABLE MACDONALD: Yep. Is it - they've obviously made statements and signed them and said nothing about the drugs -
MR DRUMMOND: I just don't want to - - -
DETECTIVE SENIOR CONSTABLE MACDONALD: - - - that you were there to buy drugs -
MR DRUMMOND: I'm just - - -
DETECTIVE SENIOR CONSTABLE MACDONALD: - - - and sell 'em.
MR DRUMMOND: I just don't want to go to prison ask people - have people ask to look at my paperwork and it says I've made comments.
DETECTIVE SENIOR CONSTABLE MACDONALD: Yeah, I get it. I totally get it. But they are now sending you effectively to gaol and you've said nothing about, you know, drug deal that maybe went wrong, "They invited us in." Whatever happened, like, you - there's only this story now. This is the only story there is.
64Mr Drummond then proceeds to make admissions to various aspects of the allegations and the offences.
65At the Committal DSC Gleed stated that the recording device was Victoria Police property. He stated that there was no training in relation to its use. He stated that he took the recording device into interviews ‘just in case’ but was not asked to elaborate on what he meant.
66In relation to why he chose to covertly record Mr Drummond he maintained that the accused’s body language including being upset at the time of arrest led him to conclude that ‘I just got the feeling through his responses that he may disclose his offending post the interview.’ He was not asked which responses he was referring to.
67DSC MacDonald stated that she was not aware DSC Gleed had the portable recording device in his pocket prior to the interview. She denied that she and DSC Gleed had discussed using it. She stated that she was not alarmed or concerned when she realised he was using it.
s.198B Hearing
DSC Gleed
68At the s.198B Criminal Procedure Act 2009 hearing on 14 May 2024 the Detectives gave the following evidence regarding the covert recording.
69DSC Gleed stated that he was not aware of any guidelines or policies in relation to the use of portable recording devices. He said there was no training about their use and that he had not received training in relation to covert techniques.
70He agreed that this is a practice he had adopted in similar circumstances in the past, namely immediately after the conclusion of a formal record of interview. He then stated he had done so only 3-4 times over a long period of time. He denied that he does this routinely, but he could not nominate anything unique or particular about those other occasion, nor about this occasion which caused him to covertly record a conversation after a record of interview.
71He stated that he was aware if a record of interview is suspended, that on recommencement the suspect must be readministered their caution and rights.
72He acknowledged that ‘just prior to activating the covert reporting device, … Detective Senior Constable MacDonald advised Mr Drummond that the interview had concluded?---Yes. The record of interview, yes.
And it was certainly made apparent to him and the audio recording devices that were capturing the formal record of interview was switched off?---Yes.
When you commenced recording, utilising the portal recording device, did you repeat the caution and rights to Mr Drummond?---No.
Why not?---Because it was a covert recording.
You continue to ask him questions. Do you agree with that?---Yes.
You continue to ask him questions in relation to the offence?---Yes.
Those questions were in the form of what may ordinarily be a record of interview?---It was a covert conversation.
I'm asking about the questions, Detective?---Yes, they were questions in relation to them, the offence.
The alleged offence, yes. All right. And that occurred in the interview room?---Yes.
That occurred some 10 seconds after the record of interview had ceased?---Yes.
….
HER HONOUR: Are you making a distinction, though, between a record of interview and a conversation after it, are you?---Yeah, I would say that this is a conversation that occurred immediately after the interview.
Question and answer conversation, though, isn't it?---In a sense, yes.
Yes. Well, that's what it is, isn't it?---Yes.
And it's an interview, isn't it?---Conversation interview, yes.
73He accepted that they had told Mr Drummond he was ‘off tape’ –
Mr BLAKE: Now, I suggest to you, again, that you have deliberately stated to Mr Drummond that he is off tape, because you believe that that would make him - cause him to make an admission?---It was to let him know that the record of interview had - had finished; ah, and it was just a question, because he had heard the allegations. I had a feeling that he was going to talk about his involvement.
…
HER HONOUR: Why did you say, 'Off tape', when you knew it was on tape?---Well, because the record of interview that he knew, that was going had finished. He was unaware of the discreet recordings.
Yes. But why did you say 'off tape', when you knew that it was on tape, actually?---Look, it might assist with him telling us about his involvement.
You accept that was dishonest? It wasn't true, was it?---The record of interview had concluded.
I understand that. You don't need to keep repeating that?---Yep.
You accept it was dishonest to tell him, 'This is off tape'? ---Yes, but it was to obtain a version of events which occurred, to assist with a reasonably serious offence.
…
You would deal with a lot of serious offences, I would assume, day in, day out?---Yes.
So what's special about these three or four times, and this one?---Just in relation to the person that we were dealing with. As I mentioned, his body language. I had a feeling that he may want to talk about his involvement, ah, for the record of interview.
Is it the case that you do it all the time in fact and it's not just that you've used it three or four times?---No, I - it's a case by case basis given all the circumstances.
74Some of the content of the covertly recorded interview was problematic for other reasons. DSC Gleed was referred to the following passage where DSC MacDonald, in reference to the interview of co-accused Mr Lynch, said to Mr Drummond –
So it’s not like he’s put you into…. Folded, done any of that stuff. He goes – he obviously said, ‘I’m fucked. I know I’m fucked. I might as well just own up to it and own it. This is what I did. I went here. I did this.’ And – and he’ll get – like, he’ll get a discount for that.
75DSC Gleed gave the following evidence about that passage -
Mr BLAKE: So she's relaying what she says Mr Lynch has said in his record of interview and then tells Mr Drummond he'll get a discount for that. And the question as I understood it was whether you accept that's an inducement, or has the capacity to be an inducement, for Mr Drummond to cooperate?---Ah, no.
Do you accept that what's being referred to is a discount in relation to sentence?---No.
What do you say that is the reference to a discount?---Well, it's in relation to telling the truth about what happened.
…
HER HONOUR: What's a discount though? What's that mean?---Well, discount would be that you admit the offence.
And?---And you plead guilty early.
And? How's any of that a discount? What's a discount mean?---A reduced sentence.
76Both Detectives gave evidence that at the conclusion of the covert recording they spoke to their superior officer, Officer Milman. DSC Gleed gave the following evidence –
MR BLAKE: So you've told Officer Millman, 'We've got a covert recording where he's made admissions', is that because you weren't sure whether that was lawful?---Yeah, it was just in relation to being fair to the accused and providing those recordings to him; and offering him a, ah, subsequent record of interview after what he had, ah, advised us after the record of interview on the covert recordings.
77DSC Gleed confirmed that after the conversation with Millman they offered Mr Drummond a further record of interview, which he declined. Despite the reference to being fair to the accused, DSC Gleed agreed that when they offered Mr Drummond a further record of interview they did not inform him that he had been covertly recorded.
78DSC Gleed gave the following evidence –
HER HONOUR: Do you see any difficulty with covertly recording an accused in these circumstances, where they've just exercised their right to silence?---Ah, yes, I do. Um, but as I've mentioned, he - he didn't have to answer any questions or talk to us about his involvement.
When you say, yes, you do see a difficulty, what is that?---Well, that was brought up is that um, the record of interview had concluded, so he didn't think he was being recorded.
When you say, 'That was brought up', by whom?---Ah, by my friend over here, defence.
…
By defence counsel?---Yeah.
What, is that the first time that occurred to you there might be a difficulty?---A difficulty? Sorry, pardon?
I asked you whether you saw a difficulty in recording covertly an accused who's just exercised their right to silence. You said, 'Yes, I do', et cetera. I'm asking, what was that difficulty?---Well, whether it would be admissible at court.
Yes. Is that an issue that Officer Millman raised with you?---Ah, no. Not at the time, no.
That wasn't why it was suggested you go and ask whether the accused would participate in a further record of interview?---Ah, that was part of the discussion to - - -
Yes. Admissibility questions, wasn't it?---Yes.
DSC Macdonald
79DSC MacDonald gave evidence at the s.198B hearing. She too sought to draw a distinction between an ‘interview’ and the covertly recorded ‘conversation’. Specifically she stated – You accept it was, in effect, an interview?---Well, I would say it was a conversation.
80She accepted that the Victoria Police Manual states that if a suspect is making a statement after a record of interview, if a confession or admission is made to the current matter which was not made during the interview the police member should stop taking the statement, provide caution and rights and recommence the interview. She sought to draw a distinction between the oral ‘conversation’ which was occurring and an accused making a written statement.
81DSC MacDonald agreed that she had not corrected DSC Gleed’s statement that the conversation was ‘off tape.’ She said –
MR BLAKE: Did you have any concerns about Detective Senior Constable Gleed misrepresenting that he was being recorded?---No, I thought he gave the accused the opportunity to talk and he did. He took that opportunity, he didn't have to.
HER HONOUR: That's not what you're being asked, you're being asked about the comment that this was off tape?---Off tape.
…
MR BLAKE: That fact that Detective Senior Constable Gleed stated to Mr Drummond when you were aware that he was being recorded?---Yep.
Did you have concerns about what Detective Senior Constable Gleed saying that he was not being recorded?---Not at that point, no.
HER HONOUR: Why not?---Often people talk when the tape goes off.
But the tape is not off, that's the issue here?---Yep.
The tape is not off and you knew that?---Yep.
Did that not raise any concerns that the accused is being told you are off tape?---I don't have sort of agree in that exactly on the – he hasn't said to him you're no longer being recorded. It's not as obvious as that.
…
HER HONOUR: You've stopped the recording in the interview room?---Yep.
You've played back, done the usual played back 10 seconds of the discs to check them?---Yep.
The accused has been told interview is over. That's pretty clear to the accused, isn't it, at that time the interview is over?---He says you – Your Honour, say no comment off tape. He says – and then he says is there anything that we've missed in the interview. So he's given an opportunity and he takes it.
MR BLAKE: The concern being with regards to the suggestion that quite express suggestion that he is not being recorded. Do you understand what's being asked?---I understand what you're saying but I don't think it's as strong as what you're saying. He's not been told you're no longer on tape, okay, but we're going to ask you some questions. It's not as straightforward as that.
Do you think that the accused could've interpreted it a different way?---Possibly.
I suggest to you that there's no other interpretation that could be had with what Detective Senior Constable Gleed has said other than that at that point in time he was not being recorded. Do you accept that?---No, I don't.
82DSC MacDonald confirmed that the conversation with Officer Millman was for the purpose of seeking advice. She denied that was out of concern over the legality of the recording –
I was never concerned. I, I know that they're used and I know that it needs to be the seriousness of the offending and I know that it needs to outweigh the value of the way in which it is obtained. So in certain high level offending I know that it's used.
So the end justifies the means really?---Well, depending on how serious – the seriousness of the offending.
That's what you're saying the end, i.e., having people admit to or convicted of serious offending justifies taking unlawful means to get evidence?---I don't know unlawful but - - -
Is that right?--- - - - high level offending you only attempt, um, to obtain that information in high level offending, really serious offending. You wouldn't do it - - -
You must deal with really serious offending day in and day out, Detective?---Yes.
Yes?---Not – home invasion is right at the top of our level.
So you seek advice from Officer Millman?---Yes.
But you don't go back and tell Mr Drummond that you've covertly recorded him?---No.
Why not?---I just – I didn't see a reason to. He's going to be served with it within seven days so he would eventually know about it.
…
HER HONOUR: I'll ask you the same question I asked Detective Gleed, how do you think this practice sits with the right to silence?---I think in the seriousness of the offending it can be appropriate.
Because the end justifies the means?---Because of the, the nature of the offending the – like it's high level, high victim impact crime.
Well, almost everything we do in this court is high level offending. Are you saying really for indictable offences it's all right when someone has exercised their right to silence to covertly record them?---In my, in my own opinion?
Yes?---Yes.
You don't see a problem with that?---I don't.
Submissions in relation to Mr Drummond
Defence
83Mr Blake on behalf of Mr Drummond submits that the police have provided an inducement to Mr Drummond during the questioning in the covert recording by way of offering what amounts to legal advice regarding sentencing discounts, the fact he would be sent to prison because he was not providing a version of events, and that he ‘needed to explain’ his state of mind during the alleged offence.
84He submits that manner of questioning, including by cross examining him as to his mental state, is such as to negatively impact the reliability of admissions made and that the covert recording should therefore be excluded pursuant to s.85.
85Further, he submits that for the following reasons the covert recording should be excluded exercising my discretion pursuant to s.138;
(a) that a number of comments made during the covert recording constitute deliberate and false statements, specifically the fact the interview had been concluded and he was now ‘off tape’; that that indication was made specifically because police were of the view Mr Drummond would make admissions if he did not think he was being recorded; and that this constitutes a significant impropriety; and
(b) that the two Detectives did not follow any police procedure or policy for the use of covert recording devices and as such have acted in contravention of Victoria Police Manual policy; and
(c) that given Mr Drummond was not administered his caution and rights prior to the covertly recorded interview commencing, pursuant to s.139, the covertly recorded interview is deemed to be improperly obtained.
86In addition Mr Blake relies on s.90 of the Act such that it would be unfair to use the covert recording in the trial of Mr Drummond given the circumstances in which it was obtained, in addition to the above matters, he submits that is particularly so because they have abrogated his right to silence immediately after he had elected to rely on it.
Prosecution
87In response, Mr Teo on behalf of the Prosecution submits that Mr Drummond demonstrated his knowledge of his legal right to silence. He submits DSC Gleed’s comment that he could make ‘no comment’ at the start of the covert recording would have reminded him of his right to continue doing so. He submits it is unlikely the truth of the admissions made were adversely affected in those circumstances, and that he was not thereafter unduly influence or induced.
88He submits that in relation to s.138 the admissions do not fall foul of s.464H Crimes Act1958, given they were recorded.
89Mr Teo disputes that the officers have acted in contravention of the policies and legislation governing surveillance devices.
90Thirdly he disputes the conduct was improper, relying on the authorities of Tofilau v The Queen[1] and Em v The Queen[2].
[1] Tofilau v The Queen [2007] HCA 39
[2] Em v The Queen [2007] HCA 46
91He submits even if I find the actions of covertly recording Mr Drummond are improper, the balancing test provided for in s.138(3) is such that it should favour admission.
92Further, that there is no unfairness in the circumstances such as to warrant the exercise of my discretion under s.90.
The Evidence Act 2008
93Relevantly, the legislation governing admissibility of admissions by an accused is contained in the Evidence Act 2008 as follows:
85 – Criminal proceedings: reliability of admissions by defendants
(1)This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:
(a) 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;
…
(2)Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3)Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:
(a)any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b) if the admission was made in response to questioning:
(i)the nature of the questions and the manner in which they were put; and
(ii)the nature of any threat, promise or other inducement made to the person questioned.
94Sections 138 and 139 are in the following terms –
138 – Discretion to exclude improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject - matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
139 – Cautioning of persons
(1)For the purposes of paragraph 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:
(a) the person was under arrest for an offence at the time; and
(b)the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and
(c)before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
(2) For the purposes of paragraph 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:
(a) the questioning was conducted by an investigating official who did not have the power to arrest the person; and
(b)the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence; and
(c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
(3)The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.
(4)Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.
95Section 90 provides a general discretion to exclude admissions at Trial on the basis of unfairness as follows -
s.90 – Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—
(a) the evidence is adduced by the prosecution; and
(b)having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.
Submissions regarding cross admissibility
96After the initial s.198B hearing, I requested submissions from Counsel regarding what portions of evidence they rely on as cross admissible as between the two accused and the two applications for exclusion. I was assisted by written submissions from all three Counsel.
97There was some disagreement, however I have reached the following conclusions. I accept that consideration of ‘the circumstances’ in both ss.85 and 90 requires me to assess the particular circumstances – ie. interview/covert recording of each accused separately.
98With regard to s.90 however the discretion is a broad one. In my view I may consider the evidence from both Detectives as it impacts my assessment of their credibility as far as it is relevant to my determination of any unfairness. I note in the decision of DPP v Hou[3], four different Crown Casino employees had conducted questioning of the two accused. The Court of Appeal did not make any adverse reference to the Trial Judge’s consideration of the circumstances and questioning generally as going to the circumstances which could create unfairness.
[3] [2020] VSCA 190
99I accept that s.138 is concerned with the specific acts or omissions of the Detectives said to give rise to the impropriety or illegality in relation to each separate accused. My consideration has been directed to the factual matters pertaining to each accused.
100However I am of the view that I am able to take into account my overall assessment of the credibility of each Detective and the way that informs my assessment of those facts. For example, what inferences I can draw in relation to matters under s.138(2)(b). I am mindful that this consideration is limited and is not to equate to tendency or propensity reasoning.
101I accept also that the factors listed in s.138(3) are non-exhaustive. The discretionary judgment involved in s.138 involves consideration of public policy – on the one hand bringing offenders to justice and on the other deterring misconduct on the part of those charged with law enforcement.[4] I accept this may involve consideration of whether behaviour is widespread or evinces an attitude or approach which is improper. I accept in the context of this case I am considering a single investigation with the same two investigators concerned with the same charges and elements, and said to have undermined the same right to silence in ways which are broadly similar. I accept that under the umbrella of s.138 it would be artificial to silo my consideration of the evidence of the Detectives vis a vis each accused entirely.
[4] DPP v Marijancevic (2011) 33 VR 440
Analysis
102The starting point for guidance of questioning suspects by police is the Judges’ Rules framed or approved by English Judges in 1912. Those were referred to by the High Court in the 1948 case of McDermott v The King[5]. Reference was made to the practice of excluding confessional statements if they had been obtained in an improper manner –
The abuse of power of arrest by using the detention of an accused person as an occasion for securing from him evidence by admission is treated as an impropriety justifying the exclusion of the evidence. So is the insistence upon questions or an attempt to break down or qualify the effect of an accused person’s statement so far as it may be exculpatory.
[5] (1948) 76 CLR 501
103The Judges’ Rules were reflected in the Chief Commissioner’s Standing Orders which required police interrogators to be ‘scrupulously fair in interviewing any person.’ Police were not to ‘endeavour to force any person into making any admission of guilt, entrap or mislead any person or where such person makes a confession, attempt by further questioning to break down answers to which unfavourable replies have been received or to break down the will of such person.’[6]
[6] Extracted from R v Pritchard [1991] VR 84
104R v Amad,[7] although dated, is a case which has been referred to approvingly in many more recent cases[8] and which to my mind is apposite. In Amad, where it was submitted the investigating police had cross examined the 19 year old accused, Smith J made the following comments –
It was argued on behalf of the Crown that what took place was not cross-examination in any relevant sense. But this contention, at least at one stage of the argument, was based upon what, in my opinion, is the erroneous view that for this purpose questioning is not cross-examination unless either it puts words in the accused's mouth or else it proceeds from a desire in the questioner to break down the accused's denials or extract damaging admissions from him. Even if the questioner is concerned only to find out the truth and has no preconceptions and no desires as to where it will be found to lie, and even if he refrains from putting any words at all into the accused's mouth, he is nevertheless cross-examining in the sense relevant to the matters here in question when he proceeds, as in this present case, to submit the person in custody to a searching questioning in which disbelief is repeatedly expressed in his denials of complicity, his account of his movements is challenged and checked, he is confronted with evidence of its falsity, he is accused explicitly of lying, and his refusal of further information is met with a statement that there are questions which the interrogator must ask him. A person in custody is, by that fact, ordinarily under great stress, and for that reason the law for his protection holds it to be improper to subject him, even after caution, to any form of cross-examination the tendency of which is in fact to extort admissions or to overcome his mental resistance to making admissions. There is no exception from this principle in favour of an interrogator whose desire is solely to find out the truth and not to obtain evidence for use against the accused. It is what the interrogator does and not his state of mind that is decisive.[9]
[7] R v Amad [1962] VR 545
[8] R v Swaffield (1998) 192 CLR 159; R v Em [2003] NSWCCA 374
[9] R v Amad [1962] VR 545
105Police are of course entitled to and should make attempts to engage a suspect to answer questions about the allegations. There is no dispute that police have a duty to ascertain the facts and that they may persist in questioning. It is a question of degree as to whether that persistence crosses a line so as to render use of the answers in evidence unfair.[10]
[10] R v Smith [1964] VR 95
106The assessment of whether the questioning crosses a line and should be excluded may take into account not just a single reason or instance of conduct; there may be a number of factors working together which in combination influence the accused to make admissions.[11]
[11] See comments in R v Sumpton [2014] NSWSC 1432 regarding s.84
Mr Lynch
107First, I accept that a police officer is in no way required to stop questioning when a suspect gives no comment. As above, it is not only appropriate but necessary for police to endeavour to engage a suspect during an interview.
108Second, I accept that Mr Lynch’s state of distress and recent drug use and likely lack of sleep, while relevant as a backdrop to the interview, were not such that a medical assessment was mandated or that the interview should have been suspended for those reasons. Many suspects are interviewed soon after alleged offending. Many are in a state of distress, anxiety or regret and to greater and lesser extents, many suffer the after-effects of relatively recent drug or alcohol use. In some circumstances those facts mandate suspension of an interview and medical assessment. Having watched the record of interview there was nothing about those matters which to my mind militated cessation of the interview in this case.
109Having said that, I accept they are matters, in particular taken in light of his age, that should have been in the minds of the two Detectives during the interview. They did evince some vulnerability on the part of Mr Lynch. He was clearly emotional and at times distressed.
110I make the following findings of fact –
(a) That Mr Lynch had evinced an intention to make no comment during the record of interview.
(b) That the police officers persisted in questioning him in the face of that decision in a way that was not appropriate.
(c) That a range of the questioning was persistent, pressurised, and took advantage of his psychological state.
(d) That at times the questioning involved inducements made to Mr Lynch with regard to likely legal outcomes.
(e) That the questioning was designed to undermine his resolve to make no comment.
(f) That the questioning – both in its persistence and by inducement – was such as to influence him to answer questions and make admissions, specifically to the more serious offence of home invasion.
Section 85
111Pursuant to s.85 the burden of proof is on the Prosecution to satisfy me that the reliability of the admissions made by Mr Lynch during the record of interview was not adversely affected by the circumstances in which they were made. In making that assessment I should take into account the accused’s age, and, given the admissions were made in response to questioning, the nature of the questions and manner in which they were put, along with any threat, promise or inducement made to Mr Lynch.
112It is apparent Mr Lynch was involved in an incident at the home of the complainants. He was remorseful about it, and obviously in genuine distress as he recognised the serious impact his offending was about to have on his life, and in circumstances where he had apparently managed to turn his life around.
113His distress is obvious on the interview transcript, and more so on watching the video where he is demonstrably upset including for example putting his head down on the table at various points. Although I accept that many accused in an interview display emotion, and that investigating police have an obligation to persist with questioning to some degree, this was a young man not long out of his teenage years, and the questioning in those circumstances had to be appropriate. It was not.
114Mr Reardon relied on three separate portions of the record of interview to establish that the nature of questioning and manner in which questions were put are such as to adversely affect the reliability of the admissions made. In my view there are six areas of questions and comments made which are improper. They are questions/comments made at Q.53-56, Q77-84, Q121-128, Q166-169, Q178-179 and Q225-232.
115The nature of questioning is reminiscent of the case of R v Amad which I have referred to above. At this point I note that DSC Gleed’s insistence that he was only hoping to establish the truth also pre-supposes what the truth is. Similarly, though not to the extreme of that case, the questioning also had some of the characteristics criticised in DPP v Hou.[12] In particular, similar comments were made to the effect that the police already had a strong case against Mr Lynch, that they were trying to help him by obtaining his version, that they could see he was not the type of person to commit this offending and it would help him ‘heal’ by owning it.
[12] DPP v Hou [2020] VSCA 190
116Of more concern are comments to the effect that making admissions would not change the way forward with respect to charges he would face, would not have the potential to adversely affect the outcome of court proceedings and specifically would not have the potential to result in a longer prison sentence.
117Not only were those comments inaccurate and apt to mislead, but in my view the statements were at least recklessly made in order to encourage Mr Lynch to keep talking with a view to establishing a home invasion. In my view they are an inducement designed to encourage admissions.
118Although I am conscious that Mr Lynch did not give evidence on the s.198B hearing, I am satisfied that the repeated entreaties in the questioning, along with the inducements offered, had a causal connection to him answering the questions and making admissions despite his initial resolve not to do so.
119That is apparent when one considers the initial denials he makes regarding any preconcert with Mr Drummond for example at answers A87 ‘went there to get Xanax and I don’t know it just went all sour’ and A132 ‘I had a plan to go buy drugs and then, I dunno it all just kicked off… I can’t remember fuck all’, which then become admissions with uncertainty such as at A155 ‘I just probably would’ve been like, I want to keep my money. …I’m not paying them… that’s probably what was going on in my mind;’ at A164 ‘maybe I picked up that knife’; at Q209 ‘Was Tom aware about what was going to happen when you went in there? A – I don’t think so. Maybe. I don’t know.’
120The questioner persists and eventually Mr Lynch agrees he thought about it ‘two seconds before I walked in’ and later, after more questions including that ‘it’s important’ and ‘probably not going to affect the result’ and will ‘look much better for you when this goes to court’ he makes admissions before saying ‘Can you just fuckin’ shoot me already?’
121The repeated references to his apparent remorse, to the ‘importance’ of ‘talking about it’, to making himself feel better by ‘getting it off his chest’, that talking about it was a way to ‘heal’, and telling him ‘the best thing to do is to own it’ are disingenuous. It is not an appropriate way of questioning a suspect.
122The burden is on the Prosecution to establish that the reliability of Mr Lynch’s admissions was not adversely affected by the nature and manner of questioning. I am not satisfied that they have done so.
123In the circumstances I have outlined I accept that the reliability of Mr Lynch’s admissions are likely to be adversely affected by the nature and manner of questioning.
124Put another way, I cannot be confident that Mr Lynch’s answers have not been adversely affected by the method of questioning. It is repeatedly pressurised, persistent, and relying on his psychological state of upset.[13] It must have been clear to Mr Lynch that the questions would not cease until he had given a full description of events as the two Detectives were wanting. The effect in my view was to induce admissions, the reliability of which are in question. Given that finding the admissions made must be excluded.
[13] R v Archer (No 1) [2021] NSWSC 569
125I have given consideration to whether portions of the interview could remain admissible. Specifically I have considered whether the nature of questioning in earlier portions prior to Q121 is such that reliability is not in issue. In my view it is a continuous conversation, the impact of which can only be properly understood when viewed as a whole.
126In addition, as I have stated, in my view the problems with the questions start before that point. Specifically, the references at Q53-58 which includes reference to his remorse and the ‘importance’ of answering questions, and similar statements at Q81-84. I cannot be confident that the reliability of his responses is not adversely affected by the nature and manner of those questions and comments. Therefore I have concluded the interview should be excluded in its entirety.
Section 138
127Although, having excluded the interview pursuant to s.85, I am not required to consider the other provisions relied on, I am satisfied that the interview should be excluded under those provisions in any event.
128In relation to s.138, it is a two-stage process. The onus is on Mr Lynch to establish the evidence is obtained improperly. If established, it is a matter for the Prosecution to establish that the desirability of admitting the evidence outweighs the desirability of excluding it.
129I am satisfied for the reasons outlined above that the questioning was improper, that is, inconsistent with the minimum standards which society can expect and require of those entrusted with law enforcement. In my view not simply the persistence but the manner of questioning was quite inconsistent with those standards.[14]
[14] Ridgeway v The Queen (1995) 184 CLR 19 as referred to in Wu (a pseudonym) v The Queen [2020] VSCA 94
130I am also satisfied pursuant to s.138(2)(b) that a number of the comments made by the Detectives regarding (1) the fact that giving answers would not change the outcome in terms of charges to be laid[15]; and (2) the fact that giving answers would not change the outcome of Court proceedings[16] were false and that both Detectives knew or ought reasonably to have known those statements were false and were likely to cause Mr Lynch to make admissions.
[15] Questions 169, 179, 226
[16] Questions 125-126, 166-167, 179, 226
131I have considered the matters outlined in s.138(3).
132Admissions always carry probative value and they do so here. I accept the admissions pertaining to mental state and intention are important in the context of the proceedings. I accept they would be difficult to obtain from elsewhere, except inferentially.
133I have no hesitation in saying home invasion is a serious offence. People who commit such offences must be brought to justice. Without intending to diminish the frightening experience for the victims of this event, I note that home invasion and aggravated burglary cover many factual scenarios. In making an assessment of the seriousness of the offending in this case, in my view it is not at the most serious end of the range of home invasion or aggravated burglary offences for the following reasons. It involves complainants and accused who are known to each other. The accused were not disguised. Weapons carried were bats. It was very brief. No one was physically harmed once the accused were inside the house. Items of limited value were taken.
134I also take into account that without these admissions there is other evidence which implicates Mr Lynch. Specifically identification by the complainants, the fact he returned home with Mr Drummond who had also been identified, the fact they returned home in possession of items similar to those described by the complainants, the fact that items linked to the offending were found at his house soon after. The exclusion of the record of interview therefore does not eliminate the Prosecution case. In that way the Prosecution may still bring the accused to justice for his offending.
135I am satisfied that the questioning and comments regarding legal outcomes were at least reckless but more likely deliberate. As both Detectives acknowledged the ongoing questioning was directed to establishing the elements of home invasion. There is nothing wrong in pursuing such admissions, but the manner of doing so is what is in question.
136Eventually DSC MacDonald agreed that despite what had been said to Mr Lynch, his answers could in fact affect the charges to be laid. It would follow that that could affect the legal outcome for Mr Lynch and specifically the likelihood and length of any prison term.
137The fact that neither Detective saw any difficulty with this style of questioning a young person is concerning.
138The reluctance of DSC Gleed in particular to accept that references made by him about ‘time’ and things looking ‘much better for him’ were intended as references to Court outcomes was problematic. He was evasive and in my view not entirely forthright in his evidence.
139I am encouraged to the conclusion that the method of questioning was more likely deliberate when I take into account the broader circumstances of the behaviour of DSC MacDonald and DSC Gleed when questioning Mr Drummond. That interview included questions similar in nature to those calling on remorse for Mr Lynch, the importance of speaking, and others such as ‘What do you think your mum would think about this incident?’
140That interview also included an approach similar to the one taken with Mr Lynch, by way of offering an inducement to Mr Drummond in the following way –
Q 52Well, I don't think you talking about what happened and being remorseful and maybe sorry for what happened - I don't think that's gunna do you any harm. It will probably do you some good.
which the accused correctly identified would involve making admissions.
141The disingenuousness of the questioning is demonstrated when DSC Gleed, knowing Mr Drummond has a prior criminal history for dishonesty, including a charge of aggravated burglary, says
Q 58From looking at you, Tom, having a brief look at who you are as a person and your interactions with police, to me, this would sound well, this incident looks to be a bit out of your character.
A Yeah.
Q 59We all make mistakes and do silly things in life. Yeah. I think – I suppose, what we want to know is just, a bit of an explanation of why this happened, which might account to the unusual – this being unusual for someone of your character to do.
142Similar comment was made to Mr Lynch despite the Detectives awareness of his relevant prior criminal history.
143Not content with the staunch no comment approach adopted by Mr Drummond, DSC Gleed with the imprimatur of DSC MacDonald, then covertly recorded the ongoing conversation with him and falsely told Mr Drummond he was ‘off tape’.
144DSC Gleed was unconvincing in relation to why he had chosen to covertly record Mr Drummond and whether it was a common practice of his. Of greater concern, neither Detective saw any difficulty with that practice, nor any tension between that practice and the accused’s right to silence which he had just exercised.
145Those matters demonstrate a style of approach which tends to suggest a disregard for the rights of the suspect. They are suggestive of a more widespread approach which ought be discouraged.[17] They negatively affect my assessment of the credibility of the two Detectives.
[17] DPP v Marijancevic (2011) 33 VR 440
146In my view the gravity of the impropriety of the questioning of Mr Lynch, while not at the highest end, is still serious. It breaches a fundamental tenet of the criminal justice system, being the accused’s right to silence. It did so by way of a series of persistent questions designed to appeal to him in his psychologically distressed state, and by falsely assuring him that whatever he said would be inconsequential to the legal outcomes, knowing or reckless as to that being false.
147For the reasons outlined by Smith J in R v Amad – that a person in custody is in a state of great stress and in that way is vulnerable – even where an interrogator is only desirous of finding the truth, it is right to expect high standards of those who conduct such an interview. The standards here were below what should be expected.
148In my view the accused has established the questioning was improper. The Prosecution has failed to establish that it should, as a result of the considerations under s.138(3), nonetheless be admitted.
Section 90
149In relation to s.90, the onus rests on the accused. The consideration under s.90 does not relate to impropriety, but rather to whether the circumstances in which the admissions were made would produce unfairness if the evidence was admitted at trial.
150The fairness discretion under s.90 is deliberately broad.[18] It incorporates, but also extends beyond the considerations under s.85 regarding reliability and relates to ensuring the accused receives a fair trial.[19] Although the source of debate, of itself as considered in the broader circumstances in which the evidence was obtained, unfairness can be the result of unreliability of the admissions made, although the considerations are wider.[20] The High Court in Lee[21] quoted Street J (as he then was) in R v Jeffries[22], where His Honour said –
It is a question of degree in each case, and it is for the presiding Judge to determine, in the light of all the circumstances, whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him.
[18] R v Swaffield (1998) 192 CLR 159
[19] Haddarav The Queen (2014) 43 VR 53
[20] Em v The Queen [2007] HCA 46
[21] R v Lee (1950) 82 CLR 133, as discussed in Haddara v The Queen (2014) 43 VR 53
[22] R v Jeffries (1947) 47 SR (NSW) 284
151Largely for the reasons which I have already outlined, in my view it would be unfair to the accused to admit the admissions made in his record of interview into evidence at his trial given the circumstances in which they were made. Those circumstances being the deliberately persistent and pressured manner of questioning and the inducements made, considered against the backdrop of the accused’s age and his apparent distress at the time of interview.
152To use what I regard as unreliable admissions in those circumstances would be unfair. It would be particularly unfair since a number of the admissions relate to the accused’s state of mind, or whether he and his co-accused had a common purpose. As much as that evidence is unavailable to the Prosecution from another source, equally, at trial the accused would be the only person who could refute what he had said during the interview, essentially forcing him into the witness box. That constitutes a specific forensic disadvantage in the running of his trial which would be difficult to avoid.[23]
[23] See for example reasoning in R v Pritchard [1991] 1 VR 84
153In the exercise of my discretion I would also refuse to admit the record of interview of Mr Lynch pursuant to s.90.
Conclusion – Lynch
154The orders will be that the application made on behalf of the accused is granted. The record of interview of Ryan Lynch is excluded pursuant to ss.85, 138 and 90 of the Evidence Act 2008.
Analysis – Mr Drummond
155By way of findings of fact I have reached the following conclusions.
(a) That Mr Drummond had made a clear election to rely on his right to silence during the recorded interview, making no comment to almost all questions.
(b) That in the conversation which followed he was not aware that he was being covertly recorded.
(c) That DSC Gleed told him, positively, he was ‘off tape’. That was false.
(d) That DSC MacDonald was aware that DSC Gleed was recording the ongoing conversation and failed to correct the false statement he had made.
(e) That Mr Drummond, only answered questions because he did not believe he was being recorded, and therefore did not believe his answers could be used against him.
(f) That both Detectives were evasive in describing the covert recording as a ‘conversation’ rather than acknowledging it constituted questioning or interviewing.
(g) That several questions within the covert recording were inappropriate, at times tending towards inducement by reference to potential legal outcomes.
(h) That Mr Drummond on being offered a further recorded interview after the covert conversation, declined that opportunity, reiterating his intention not to speak to police while being recorded and to exercise his right to silence.
Section 85
156Pursuant to s.85 the burden of proof is on the Prosecution to satisfy me that the reliability of the admissions made by Mr Drummond during the covert recording was not adversely affected by the circumstances in which they were made. In making that assessment I should take into account the accused’s age (25), and, given the admissions were made in response to questioning, the nature of the questions and manner in which they were put, along with any threat, promise or inducement made to Mr Drummond.
157My conclusion in relation to the fact of the covert recording being conducted, and in relation to some of the contents of the questioning, are that both are inappropriate for reasons I will detail below.
158In short, I accept that a range of questions verge on inducement by way of inferences to or direct references to Court outcomes (as referred to below), or by reference to Mr Drummond’s apparent remorse and the need to ‘help himself’ by providing a version of events (referred to below). The fact that those inferences were understood by Mr Drummond is apparent from his answers. Those questions also build on a number within the recorded interview such as those calling on his remorse, telling him it was ‘important’ to talk, and some irrelevancies designed to have psychological appeal such as “What would you mother think”.
159However, the test which I must apply in relation to s.85 is whether those circumstances, including the nature and manner of questioning, are such as to adversely affect the reliability of the admissions made.
160I cannot conclude that the reliability of the admissions made by Mr Drummond during the covertly recorded conversation is adversely affected. The questions are not as persistent as the questions and comments made to Mr Lynch. They are not as direct with regard to legal outcomes. Although he is initially reluctant to engage with the Detectives, and although there are some questions which in my view should not have been asked, my view of Mr Drummond’s answers overall is that they were not the result of him being overborn; that they were given at times in response to non-leading questions; and contained a deal of detail which points to reliability. I am of course not required to assess the truth of them.
161I have had some moments pause in relation to the point where DSC MacDonald tells Mr Drummond, erroneously, that Mr Lynch has made admissions and will receive a discount. Mr Teo properly conceded that this was a ‘misstatement’ of Mr Lynch’s record of interview and is ‘problematic.’ It is problematic given Mr Drummond had been very interested during his interview whether Mr Lynch had made any comment. It is also problematic as it was immediately followed by a series of leading questions which Mr Lynch adopted.
162However, ultimately I have concluded that the circumstances of the covert recording, including the nature and manner of questioning has not adversely affected the truth of the admissions made.
Sections 138 and 139
163To my mind the strength of Mr Blake’s submission lies in ss.138 and s.139 of the Act.
164In my view the covert recording is improperly obtained and as a consequence of impropriety on the part of Detectives Gleed and MacDonald for the following reasons.
165I accept the submissions of Mr Blake that according to the Victoria Police Manual, the use of covert recording devices as an investigative tool must be used in accordance with the strict policies and guidelines in place. Where an interview is taking place with a suspect a portable recording device is not to be used unless facilities are unavailable for recording. Clearly in the interview room such facilities were available and had just been used. No warrant or other approval for the use of the device was obtained here.
166I accept his submission that covertly recording Mr Drummond was a deliberate act on the part of DSC Gleed, with approval of DSC MacDonald. Both Detectives, knowing Mr Drummond was under the illusion that the ongoing conversation was not being recorded, actively engaged in that further interview.
167I reach the conclusion that such conduct was improper and an impropriety in particular taking into account of s.138(2)(b). Telling Mr Drummond that the conversation was ‘off tape’ was false. DSC Gleed and MacDonald eventually acknowledged as much during their s.198B evidence.
168I am satisfied that they each knew or ought reasonably to have known that first, that statement was false and secondly, that Mr Drummond believed their false statement, and third, that it was as a result of being told the conversation was off tape which caused Mr Drummond to engage with them.
169The latter fact is clear given his quite staunch reliance on his right to make no comment during the record of interview and also his refusal to engage in a further record of interview when one was offered after the covertly recorded conversation.
170I take into account the effect of s.139(1)(a) which acts as a deeming provision. That is, where a person was under arrest and being questioned by an investigating official, and before the start of questioning the person was not cautioned, evidence of a statement made during that questioning is ‘taken to have been obtained improperly’.
171It is of no consequence that Mr Drummond was earlier given his caution. Both Detectives acknowledged that, in line with the Victoria Police Manual, where there is a break in questioning an accused must be re-cautioned before any further questioning takes place. That did not take place here despite the fact that the cessation of the tape recording, provision of a copy of the recording to him, and advising Mr Drummond that the interview was over acted as a break. The fact DSC Gleed makes a vague reference to the accused being able to make no comment ‘off tape’ supports a conclusion that he was aware a full caution should have been given before any further questioning.
172I reject the contents of DSC Gleed’s written statement that the admissions were made ‘unprompted’. Consideration of the starting portion of the covert recording shows the two Detectives asking a series of probing questions –
DETECTIVE SENIOR CONSTABLE GLEED: All right. So you understand that - that's fine, mate, if you want to say - "no comment" off - off tape. Is there anything that - that we've missed in the interview?
MR DRUMMOND: Interview, yeah, there's a bit of information that's not correct.
DETECTIVE SENIOR CONSTABLE MACDONALD: What?
DETECTIVE SENIOR CONSTABLE GLEED: What's not correct about it?
MR DRUMMOND: --------------
DETECTIVE SENIOR CONSTABLE MACDONALD: O.K.
DETECTIVE SENIOR CONSTABLE GLEED: What do you mean by that?
173Further, despite both Detectives insisting in evidence before me that the covert recording was ‘a conversation’ and not an interview ie ‘questioning’, the distinction is unconvincing. Both Detectives continued to ask questions about the alleged offending. A sample taken from the early portion of the recording is ample to demonstrate that fact – ‘What did you do?’ ‘Did you make any threats?’ ‘Whose idea was it?’ ‘Did you make the plan in the car?’
174Their questioning is then persistent, continuing over the course of the next half an hour, and probing into details of the incident. ‘So run us [through] what happened?’, ‘Do you know where you went after that’, ‘So you - what you're saying, Torn, is that you went there to buy drugs. You went and bought drugs then as you left you thought, "Fuck it, we'll go back."’ And later, ‘You went there, bought the drugs, left with Ryan back to Ryan's place and then said, "No, let's go back there and roll them."’ A deal of those questions amount to cross-examination.
175Those latter questions are directed at the elements of intention and acting in company which are required to establish the charge of home invasion. They go to matters which, other than inferentially, could only come from the accused’s own admissions.
176At no point did either Detective remind Mr Drummond of his right to silence or readminister the full caution. At no time during the conversation did they seek to put him back on tape formally, despite him making admissions and despite Victoria Police Manual requirements.
177DSC Gleed then continues in this vein –
Well .......... I was telling you, like, I - you didn't - you don't look like the type of person - - - that does this…. It's out of character.
…
The thing is, Tommy, you've - you know, it's one of those things, you've just now got to take accountability of what - what's happened.
…
Now, I did ask you during the interview - I know you said "no comment" but the - are you - are you sorry for what happened?
…
Yeah. Remorseful?
178Both Detectives agreed that they had access to Mr Drummond’s prior criminal history. That includes a range of dishonesty offending including an aggravated burglary. In light of that fact, the above questions are disingenuous, and I can conclude were designed to encourage admissions.
179While not conceding there was inducement, Mr Teo on behalf of the Prosecution fairly conceded, there ‘is an escalation, if I can put it that way, … of the attempts at persuasion made by the police officers.’ I agree with that assessment.
180I also agree with the submission of Mr Blake that there are questions referring to favourable court outcomes. For example, the reference by DSC MacDonald to Mr Lynch. Although I have concluded on balance and pursuant to s.85 that the reliability of admissions made is not adversely affected, the consideration under s.138 is different and goes to the improper nature of the questioning more broadly. Therefore the ‘problematic misstatement’ made by DSC MacDonald and the persistence generally is relevant to my considerations under s.138.
181Again, despite DSC Gleed’s reluctance to say so in evidence, the reference to a ‘discount’ is clearly intended as a reference to sentencing. That is, if admissions were made to the offending (as Lynch was said to have made) then the sentencing outcome would be more favourable. That question was improper and related to the significant matter of the accused’s liberty.
182Later in the recording DSC Gleed makes another comment which is clearly understood by Mr Drummond as a reference to Court outcomes –
Like I said, we also know what's happened, so - yeah, that - you know. Probably the best thing you can do is when - when you're caught, own it, accountability for it.
MR DRUMMOND: That's right. I'm gunna bite the bullet and - - -
DETECTIVE SENIOR CONSTABLE GLEED: That's right, thank you.
And as I said to you, if it's a one-off thing, you know, you're - yeah, and you're remorseful, you just get - probably do - -
MR DRUMMOND: Yeah, how long is usually the sentence for this?
183When Mr Drummond presses for DSC Gleed’s opinion on sentence, DSC Gleed eventually asks whether he has a solicitor.
184I should add that in my view it is inappropriate for police to be telling an accused that the victims are “sending them to gaol”. DSC MacDonald made such comment once, extracted above, and then later in the interview, stating ‘they're sending you to gaol and you're doing nothing to help yourself.’ If an accused goes to gaol as a result of criminal offending that is no fault of the victim. That type of comment made by a Detective, perhaps especially where parties are known to each other, has real potential to inflame retaliatory behaviour. It should not have been made, let alone repeated.
185I accept Mr Blake’s submission that the level of impropriety here is in a category of behaviour which is serious given the conduct was known by the two Detectives to be improper and was pursued for the purpose of obtaining a benefit or advantage (i.e., admissions) that could not be obtained by lawful conduct. When viewed alongside the similar nature and manner of questioning demonstrated in the interview with Mr Lynch, it is concerning.
186The fact both Detectives saw no difficulty with covertly recording a suspect who has just indicated – and indicated strongly – that he wished to exercise his right to silence is most concerning. The two cannot sit together.
187Further, the evidence of both Detectives that they informed their superior about having covertly recorded the conversation, apparently without rebuke is concerning. I infer that the superior officer told them to offer Mr Drummond a further interview which to my mind demonstrates some awareness on the part of the superior officer that there were admissibility questions at the least. The evidence of DSC MacDonald tends to support that conclusion.
188Although DSC Gleed stated that he has only covertly recorded three other people over the course of approximately six years, I am sceptical about that evidence. I cannot reach a concluded view about how often DSC Gleed has undertaken covert recording of a suspect. I do not accept his evidence that this was action taken on this occasion simply because of the body language of Mr Drummond. His evidence that he has taken the recording device into other interviews intending to use it, but has not done so, evinces a pattern of conduct which is inappropriate. His evidence overall was unsatisfactory. He was unwilling to make concessions, was evasive and at times simply not honest.
189I have taken into account the probative value of the evidence of the covert recording. It is high, as admissions always are. It is particularly high in relation to the charge of home invasion, going to the question of intention and whether the accused were acting in company – that is, had a meeting of minds about their intention prior to entering the premises. That evidence, other than inferentially, can only come from the accused.
190I have taken into account the importance of these admissions in the context of the proceedings. There is a deal of other evidence which inculpates Mr Drummond in the commission of offending on this occasion as I have outlined above. The fact that there is other evidence which inculpates the accused to the offending is a factor which tends to support exclusion of the improperly obtained evidence. Exclusion in this case does not render the goal of bringing an offender to justice impossible or unlikely.
191Although both Detectives gave evidence that the end justifies the means, that is not the case. An accused person is in a vulnerable position during arrest and interview procedures. There is a clear power imbalance. While the desirability of bringing people to justice for offending is indisputable, the way in which that is done must be beyond reproach.
192In my view the accused has established the questioning was improper pursuant to s.138(2)(b) and s.139. The Prosecution has failed to establish that the desirability of admitting it outweighs the undesirability of admitting evidence which has been obtained in the way that it was. Taking into account the matters in s.138(3) I am satisfied that the covert recording should be excluded.
193I should note at this point that I have considered the cases referred to by Counsel, specifically the case of Em v The Queen[24]. Em can be distinguished on a number of bases.
(a) First, police had engaged in proper procedures by obtaining a warrant to undertake the covert recording. As such, no argument could be made that the recording was unlawful. Indeed, the Chief Justice stated that anything recorded covertly under warrant was impliedly admissible.
(b) Second, the accused was told a number of times of his right to silence.
(c) Third, he was not under arrest and as such there was no requirement that he be cautioned.
(d) Fourth, the accused was not a suspect at the time of the covert recording.
(e) Fifth, the covert recording occurred weeks after he was interviewed and in a setting which did not suggest he was being interviewed.
(f) Sixth, the nature of questioning was not improper and did not consist of any oppression or inducement.
(g) Seventh, the High Court drew a distinction between a positive false statement and a ‘failure to correct’ the accused’s assumption that anything he said could not be used against him.
(h) Eighth, the seriousness of the offending in that case included murder and violent home invasions.
[24] Em v The Queen [2007] HCA 46
194In fact, a significant portion of the covert recording containing extensive admissions was excluded by the Trial Judge. That was because Detective Abdy said to the accused "Maybe you might feel better if you tell us. It's not as though we're going to slap the handcuffs on you and take you away otherwise we'd be at the police station if we were gunna do that, wouldn't we? Mate, one of these days your gunna want to talk about it, aren't you? You can't keep it in forever, imagine [what] it's going to be like." That comment was seen as an attempt to induce him to continue talking and that what he said would remain between the three of them and could not be used against him.
195To my mind that is very similar to the type of comments made by the Detectives in this case. The decision of the Trial Judge to exclude what followed was not called into question.
Section 90
196Taking into account the circumstances which I have outlined, specifically that having exercised his right to silence and been deceived that he was no longer being recorded, in my view it would be unfair to the accused to admit the evidence of the covertly recorded conversation. Unreliability, while it may be relevant is not a pre-condition to exclusion under the broad discretion of s.90.[25]
[25] R v Swaffield (1998) 192 CLR 159
197I pause to note in the Court of Appeal decision in Em v R[26] Hidden J stated that the evidence in that case allowed for an inference that police were aware the accused did not believe he was being recorded and that what he said could be used against him, even though police did nothing to induce or confirm that belief in that case, and as such the circumstances did not lead to exclusion. However His Honour then stated, ‘There might be cases in which conduct of that kind by police might lead to relevant unfairness.’ In other words, the case specific approach was reiterated. The exclusion of the portion of covert recording after the comment by Detective Abdy (above) was made pursuant to the s.90 discretion.
[26] [2006] NSWCCA 336
198Admitting the covert recording in the Trial of Mr Drummond, where admissions were made as to mental state, would be likely to create a specific forensic disadvantage at trial.[27]
[27] R v Pritchard [1991] VR 84
199The covert recording was a complete abrogation of Mr Drummond’s rights. Both Detectives were well aware of his intention to exercise his right to silence and both ignored it. Admitting the evidence in those circumstances would amount to tacit approval of such a practice. It cannot be condoned and in my view should be strongly disavowed.
200In the exercise of my discretion I refuse to admit that evidence pursuant to s.90.
Conclusion – Mr Drummond
201In conclusion, the application to exclude the covert recording of Mr Drummond is granted. The covert recording of Mr Drummond is excluded pursuant to s.90 and s.138 of the Evidence Act 2008.
Orders
202The orders will be as follows –
203The application made on behalf of Mr Lynch will be granted pursuant to s.85, s.138 and s.90 Evidence Act 2008 and his record of interview will be excluded.
204The application made on behalf of Mr Drummond will be granted pursuant to s.138 and s.90 Evidence Act 2008 and the covertly recorded interview will be excluded.
And I so rule.
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