Director of Public Prosecutions v Michael Hou[1]

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0051

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
MICHAEL HOU[1]	Respondent

[1]This document was previously handed down as an anonymised judgment and published under the name DPP v Hoch (a pseudonym) but is now published under the name of the Respondent.

S EAPCR 2020 0052

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
YIXUAN CUI	Respondent

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JUDGES:	MAXWELL P, T FORREST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 July 2020
DATE OF JUDGMENT:	30 July 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 190	First Revision: 2 October 2020
JUDGMENT APPEALED FROM:	DPP v Hou (Unreported, County Court of Victoria, Judge Smith, 18 March 2020) (Ruling)

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CRIMINAL LAW – Appeal – Interlocutory Appeal – Evidentiary ruling – Pending trial of respondents for engaging in conduct that corrupts or would corrupt a betting outcome – First respondent baccarat dealer – Second respondent casino patron – Both respondents arrested and interrogated by casino employees prior to arrival of police – Admissions by respondents to casino employees and police – Failure by casino staff to caution respondents – Admissions to casino staff not sought to be led at trial – Trial judge excluded admissions made to police – Whether within judge’s discretion to exclude evidence of admissions to police as unfair to respondents – Whether casino employees ‘investigating officials’ for purposes of Crimes Act 1958 and Evidence Act 2008 – Whether admissions to casino staff illegally or improperly obtained – Ruling well within judge’s discretion – Leave to appeal refused – Crimes Act 1958 ss 458, 464(2), 464A, 464C, 464D, 464F; Casino Control Act 1991 ss 1, 37(1)(b), 38–45, 81; Evidence Act 2008 ss 84, 85, 90, 135, 137, 138, 139 and Dictionary considered.

WORDS AND PHRASES – ‘investigating official’, ‘special employee’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr C B Boyce QC with Mr D Porceddu	Ms A Hogan, Solicitor for Public Prosecutions
For the Respondent Hou:	Mr S N Andrianakis	Giorgianni & Liang Lawyers
For the Respondent Cui:	Mr T Kassimatis QC with Ms K A Blair	Trueman Dawson

MAXWELL P
T FORREST JA

WEINBERG JA:

These are two interlocutory appeals brought by the Director of Public Prosecutions who, in essence, seeks to challenge a ruling by a County Court judge excluding evidence of various admissions said to have been made by the respondents, Michael Hou and Yixuan Cui.

Each respondent is charged with a number of counts of engaging in conduct that corrupts, or would corrupt, a betting outcome, contrary to s 195C of the Crimes Act 1958 (‘Crimes Act’). That offence carries a maximum penalty of 10 years’ imprisonment.

The offences were said to have been committed between late March and early May 2017. Mr Hou, who was employed at the time as a dealer in one of the premium salons of the Mahogany Room at the Crown Casino,[2] is facing 34 such charges. Ms Cui, who was gambling at the Baccarat table at which Mr Hou was dealing, is facing 26 such charges.
[2]The Mahogany Room is a high-stakes area within the casino, which is exclusive and generally only available to patrons on a restricted basis.

Each respondent has been arraigned, but no jury has yet been empanelled. There has, however, been extensive preliminary argument, including a lengthy voir dire which proceeded over some 13 days. Following the evidence led on the voir dire, counsel were given time to prepare and file written submissions. All in all, the submissions filed on behalf of Mr Hou, Ms Cui, and the prosecution, totalled some 98 pages.

On 18 March 2020, the judge delivered a ruling regarding the admissibility of various confessional statements upon which the prosecution sought to rely. His Honour held that the records of interview, conducted by police in the early hours of 2 May 2017, both of which contained damaging admissions, should be excluded. He held that written statements made by each respondent, after their formal interviews had concluded, should be excluded as well. He did so principally on the basis that it would be ‘unfair’ to the respondents, within the meaning of s 90 of the Evidence Act 2008 (’Evidence Act’), to allow those confessional statements to be led in evidence.

On 19 March 2020, the judge granted certification for interlocutory appeals to be brought, pursuant to s 295(3)(a) of the Criminal Procedure Act 2009. The Director of Public Prosecutions now seeks leave to appeal against the decision excluding the evidence of the confessional statements made by each respondent.

The proposed grounds of appeal are as follows:

1.That the Learned Trial judge erred in ruling that Crown Casino employees (namely, Jason McHutchison, Manuel Lyberis, David De Francesco and Wayne Eales) were investigating officials pursuant to s 464 of the Crimes Act 1958 and s 3 of the Evidence Act 2008.
2.That the Learned Trial Judge erred in ruling that the Crown Casino employees (namely, Jason McHutchison, Manuel Lyberis, David De Francesco and Wayne Eales) were in breach of s 464A, s 464C, s 464D & s 464F of the Crimes Act 1958.
3.That the Learned Trial Judge erred in ruling that the interviews between the Crown Casino employees and the Respondents were improperly obtained pursuant to s 138 of the Evidence Act 2008.
4.That the Learned Trial Judge erred in ruling that the formal police record of interviews of the Respondents were unfair to the Respondents and therefore inadmissible as evidence pursuant to s 90, s 135, s 137 of the Evidence Act 2008.
5.That the Learned Trial Judge erred in ruling that the statements signed/sworn by the Respondents on the 2^nd May 2017 were unfair to the Respondents and therefore inadmissible as evidence pursuant to s 90, s 135 and s 137 of the Evidence Act 2008.

For reasons that follow, we would refuse leave to appeal.

Background facts

At about 9:00 pm on 1 May 2017, the respondents (together with two other women who are also said to have been involved in the commission of these offences) were arrested and detained by Crown Casino staff. The prosecution case is that it was discovered, in the course of playing Baccarat, that the women were colluding, with Mr Hou, in cheating and thereby, in colloquial terms, ‘stealing’ money from the casino. The conduct in question was said to have been captured through live monitoring at the Baccarat table.

According to the prosecution, later investigations revealed that the offending had actually begun as far back as late March 2017. The amount by which the casino was allegedly defrauded during the relevant period is said to be more than $1 million.

It seems that what was taking place at the Baccarat table first came to the attention of Crown Casino employees at about 8:00 pm on the relevant evening. CCTV footage is said to reveal precisely how the alleged cheating took place.

Put simply, the aim of Baccarat is to select the hand, either Player, or Banker, which will achieve a total of nine, or a total closest to nine. The object of the game is to place a wager on the hand which totals nine, or is closest to nine but below that number. In one variant of Baccarat, each player may place a wager on Player, Banker, or Tie. To determine the value of the hand, tens, picture cards, and multiples of ten all count as zero. The dealer draws two cards, alternately, to each hand, that is, one card to the Player, and one card to the Banker. Once both Player and Banker have two cards, either may draw a third, if they wish to do so.

The prosecution allege that on the evening in question, Mr Hou and Ms Cui were seen to be communicating with each other in such a way as to result in her having fraudulently gained some $67,150 in winnings that night. The technique by which this was said to be done was by having Mr Hou, after shuffling the cards, surreptitiously glance at the first card to be dealt from the ‘shoe’ (which is the receptacle from which cards are dealt).[3] The prosecution claim that Mr Hou would then convey to his confederates such information as would enable them to decide whether to back the Player, or Banker, and how much to bet on the card or cards that were to be dealt.[4] If the first card, for example, happened to be a nine (which would obviously be the best card to be dealt), Mr Hou would say something like ‘high chance of winning’.[5]
[3]This form of cheating is apparently well known, and is sometimes described as a form of ‘fanning the cards’.
[4]It seems that the fraud was detected because the patrons gambling at the table, who were in collusion with Mr Hou, would bet very large sums on the first card to be dealt and far smaller sums on subsequent cards, thereby indicating that they had advance knowledge of whether the first card was favourable or not.
[5]He would say it in English, in a nonchalant manner, which might be taken as jocular. Casino staff who interviewed Mr Hou after he was arrested told him that he was not particularly proficient in carrying out this form of cheating. Nor did he ‘fan’ the cards particularly well.

Crown staff, having seen what was taking place, decided to exercise a power of arrest, pursuant to s 458 of the Crimes Act. That section provides that any person, whether a police officer or not, may arrest anyone found committing an offence (whether indictable or summary) where it is believed that the apprehension of the person is necessary, inter alia, to prevent the continuation or repetition of that offence.

The evidence led on the voir dire was to the effect that the respondents were arrested in situ, at the Baccarat table, during the course of the actual offending. Immediately after Mr Hou was told that he was under arrest, he was taken to an interview room within the casino complex. From the moment of his arrest, all conversations between casino staff and Mr Hou were audio recorded.

At about 9:05 pm, some five minutes or so after Mr Hou was arrested and taken from the Baccarat table, casino staff contacted police. At 9:32 pm, Sergeant Robert Kakoszka and Senior Constable Marco Michetti arrived in response to that call. They were briefed by casino staff, who explained what had been occurring. Prior to their attendance, the police were unaware that any cheating of this kind was taking place.

A number of issues were raised during the course of the voir dire. The first was whether those casino employees who were involved in the arrest of the respondents were ‘investigating officials’ within the meaning of that expression, in the Crimes Act. If so, they were obliged to comply with the requirements of, in particular, ss 464A and 464C (but also ss 464D and 464F).[6]
[6]For the sake of convenience, when later relating to these sections as a collective, we will refer to them as the ‘custody and investigation provisions’.

Section 464A(3) requires an ‘investigating official’ to warn any person who has been taken into custody of that person’s right to remain silent. Section 464C imposes a duty on an ‘investigating official’ to inform any such person of their right to communicate with a friend or relative, and a legal practitioner. Section 464D provides that if such a person does not have adequate knowledge of English that is sufficient to enable them to understand the questioning, the investigating official must, before questioning that person, arrange for an interpreter to be present and, importantly, defer any questioning until that has been organised. Section 464F provides that, where the person in custody is neither an Australian citizen nor permanent resident, they must be told, before any questioning takes place, that they will be permitted to make contact with the consular office of the country of which they are a citizen.

It is common ground that the casino staff who arrested, detained, and questioned the respondents did not warn them of any of these rights before they began questioning them. Nonetheless, the questioning at the casino was extensive and extended over several hours. Their position seems to have been that they did not regard themselves as ‘investigating officials’. Accordingly, they did not consider themselves to be bound to give the respondents any of the warnings prescribed by the custody and investigation provisions.

The voir dire

After all the evidence on the voir dire had concluded, the prosecutor below submitted first that any failure to inform the respondents of their rights, in accordance with the custody and investigation provisions, was of no legal consequence. That was because the staff members who carried out that questioning were not relevantly, and for the purposes of that section, ‘investigating officials’.

That term is defined in s 464(2) of the Crimes Act as follows:

Investigating official means a police officer or a person appointed by or under an Act (other than a police officer or person who is engaged in covert investigations under the orders of a superior) whose functions or duties include functions or duties in respect of the prevention or investigation of offences[.]

It is important to note that the term ‘investigating official’ also appears in the Evidence Act in connection with the rules governing the admissibility of confessions and admissions.[7] In the Dictionary to that Act, the term is defined as follows:

investigating official means—
(a)a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior); or
(b)a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences[.]

[7]See, for example, ss 85, 86, 89, and 139.

The definitions in the Crimes Act, and the Evidence Act, are plainly very similar, though they are not identical.

For the purposes of this case, the key provisions in the Evidence Act which govern the admissibility of confessions and admissions are ss 84, 85, and 90.

Section 84 provides as follows:

Exclusion of admissions influenced by violence and certain other conduct
(1)Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by—
(a)violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or
(b)a threat of conduct of that kind.

(2)Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.

Section 85 relevantly provides:

Criminal proceedings — reliability of admissions by accused
(1)This section applies only in a criminal proceeding and only to evidence of an admission made by an accused—
(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; or
(b)as a result of an act of another person who was, and who the accused knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the accused should be brought or should be continued.
…

(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.

Finally, s 90 provides:

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.

It is apparent that the term ‘investigating official’ is pivotal to the operation of s 85. However, that term has no direct application to either s 84 or s 90. It is also apparent that ss 84 and 85 are not discretionary. They mandate the exclusion of confessions or admissions which fall within their terms. Section 90, on the other hand, is expressed as a discretion. Accordingly, any decision pursuant to that section is subject, on review, to House v The King[8] considerations.
[8](1936) 55 CLR 499; [1936] HCA 40 (‘House’).

In his ruling, the judge observed that there appeared to be a dearth of authority dealing with the meaning of the term ‘investigating official’, both in relation to the use of that term in the Crimes Act, and in the Evidence Act.

The prosecutor below, who submitted that the casino employees who arrested and questioned the respondents were not ‘investigating officials’ in the sense contemplated by either Act, relied primarily upon two cases in support of that submission.

The first was R v Truong.[9] There, the accused made a number of damaging admissions to a person who had surreptitiously been fitted by police with a listening device. It was held by the Australian Capital Territory Supreme Court that the evidence of these admissions was admissible. That was because the person who carried out the secret recording was not to be regarded as an ‘agent’ of the police. He could not, therefore, on that account, be an ‘investigating official’. It was further held that this person was not to be regarded as capable of influencing the decision as to whether a prosecution should be brought. Accordingly, he did not fall within that limb of the definition of ‘investigating official’ either.
[9](1996) 86 A Crim R 188 (‘Truong’).

The second case upon which the prosecutor relied was R v Frugtniet.[10] There, this Court held that a member of the Australian Federal Police was not, relevantly, an ‘investigating official’, for the purposes of ss 464A and 464C of the Crimes Act. Relevantly, this was on the basis that, as a matter of construction, the term ‘investigating official’ as it then stood,[11] which relevantly defined that term as ‘a member of the police force or a person appointed by or under an Act’, in s 464(2) had to be read in the light of s 48 of the Interpretation of Legislation Act 1984. That section provides that, in an Act, unless the contrary intention appears, a reference to an officer or office shall be construed as a reference to such an officer or office in and for Victoria. On that basis, a member of the Australian Federal Police did not come within the scope of an ‘investigating official’.[12]
[10][1999] 2 VR 297; [1999] VSCA 58 (‘Frugtniet’).
[11]The definition was amended by the Victoria Police Amendment (Consequential and Other Matters) Act 2014, but nothing turns upon this for present purposes.
[12]In Coco v Shaw [1994] 1 Qd R 469, to which this Court referred in Frugtniet, the Full Court of the Supreme Court of Queensland held that, having regard to s 9(2) of the Australian Federal Police Act 1979 (Cth), the term ‘member of the police force’ in the Invasion of Privacy Act 1971 (Qld) extended to members of the Australian Federal Police. That was so, notwithstanding the existence, in Queensland, of s 35 of the Acts Interpretation Act 1954 (Qld), a provision similar to s 48 of the Interpretation of Legislation Act. In Frugtniet, Coco v Shaw was distinguished on the basis that the legislative history of the definition of ‘investigating official’ in the Crimes Act showed that, in its initial form as a Bill, the relevant provision of the Crimes Act had specifically included persons ‘appointed by or under an Act or Commonwealth Act’ as investigating officials. However, when the Bill was enacted, the words ‘or Commonwealth Act’ were excluded. Accordingly, full effect should be given to the provisions of the Interpretation of Legislation Act, thereby excluding members of the Australian Federal Police from the description of ‘investigating officials’. Viewed in that light, Frugtniet can be of no assistance to the applicant in the present case.

In his ruling, the judge held that neither Truong nor Frugtniet bore directly upon whether the casino employees who questioned the respondents were, relevantly, ‘investigating officials’. As can be seen, that issue lies at the heart of proposed grounds 1–3 of this interlocutory appeal. There is, however, a dispute between the parties as to whether its resolution is germane to the outcome of the appeal. That is a matter to which we shall return.

The judge’s ruling

The judge, in his ruling, held that the casino employees who first arrested, and then questioned, the respondents were ‘investigating officials’ within the meaning of that expression in both the Crimes Act and the Evidence Act. In his Honour’s terms, the issue was whether they were:

persons appointed by, or under an Act, whose functions or duties include[d] functions or duties in respect of the prevention or investigation of offences, and hence that they were investigating officials.

The judge was satisfied that the ‘functions’ performed, and the ‘duties’ carried out, by those employees included the prevention and investigation of offences. He went even further and observed that these were, in fact, their only duties.

Next, the judge said that he was satisfied that the four casino employees who carried out the questioning of the respondents, namely, Jason McHutchison, Manuel Lyberis, David De Francesco, and Wayne Eales, were all persons appointed ‘by or under’[13], a Victorian Act, which he identified as the Casino Control Act 1991 (the ‘CCA’).
[13]The expression ‘by or under’, and various analogous terms, have been the subject of considerable debate, when used, for example, as statutory limitations upon jurisdiction. See, for example, R v Clyne [1941] VLR 200, 201 (O’Bryan J); Energy Resources of Aust Ltd v Commissioner of Taxation (2003) 52 ATR 120, 128 [37]; [2003] FCA 26 (Lindgren J); and Siddique v Martin (2016) 51 VR 564, 572–4 [19]–[21]; [2016] VSCA 274 (Tate and Ferguson JJA, Cavanough AJA).

The judge noted that s 37(1)(b) of the CCA utilised the term ‘special employee’, which it defined as one employed by, or working in, a casino, in any capacity relating to, inter alia, ‘the security and surveillance of the casino’.[14] His Honour noted that ‘special employees’ are required, under the CCA, to be licensed by the Victorian Commission for Gambling and Liquor Regulation. Those casino employees who interrogated the respondents all gave evidence on the voir dire that, as at May 2017, they were all licensed as ‘special employees’.
[14]CCA, s 37(1)(b)(iva).

The judge further noted that those casino employees had all previously been longstanding members of Victoria Police. He said that he was satisfied that they had exercised their powers of arrest under s 458 of the Crimes Act lawfully. He was also satisfied that there was nothing untoward, or in any way improper, in their having questioned the respondents, though the manner in which that questioning had been carried out was a different matter.

Because the casino employees were all ‘investigating officials’, the requirements of the custody and investigation provisions had been applicable to them. However, in clear breach of those requirements, they had not cautioned the respondents, or given them their rights in accordance with those provisions.

His Honour concluded that by reason of those breaches, any admissions that the respondents had made to the casino employees would have been illegally or improperly obtained and would almost certainly, it would seem, have been excluded.

In one sense, none of that mattered. The prosecutor sensibly recognised the reality of the situation. He made clear, from the outset, that he did not propose to lead evidence of anything that the respondents said to the casino employees in answer to their questions. He did, however, indicate that he proposed to rely upon the very full admissions that they subsequently made to police, both in their formal records of interview and in the written statements that they made thereafter.

The judge took the view that different considerations applied to the admissions made to the casino employees, and those subsequently made to police.

As his Honour observed:

… it does not necessarily follow [from the fact that the questioning by the casino employees was illegal or improper] that the evidence obtained in the later police interviews by police was improperly obtained or in any way unfairly prejudicial to the accused.

The judge then turned to consider a number of the key provisions of the Evidence Act which he considered relevant to the admissibility of the police interviews and written statements. He referred, in particular, to ss 84, 85, 90, 135, 137, and 138.[15]
[15]The judge might have also have referred to s 139 of the Evidence Act, which provides that if an ‘investigating official’ who questions a suspect does not caution him or her of their right to silence, any admissions made by that suspect are taken to have been obtained improperly, and are therefore liable to exclusion under s 138.

In doing so, the judge prefaced his remarks in relation to s 90 by stating that he would have regard to all of the circumstances under which the respondents had been arrested and interviewed by casino employees, as well as what took place several hours later, after they had been taken to the police station.

The judge then made a series of findings of fact regarding the casino interviews. He found that the casino employees had repeatedly put to the respondents that there was a very strong case against each of them. They had also told the respondents that those who were questioning them were former police officers, and added that they would have considerable influence over whether charges would eventually be laid. They made it clear that they would have a strong say as to whether or not the respondents would be imprisoned.

The judge found, as was plainly the case, that the respondents were repeatedly told that they would end up in gaol unless they ‘cooperated’ with police. They were told that their families would be deeply upset if they learned what the respondents had done. However, if they ‘cooperated’, by answering questions put to them, they might be permitted to go home. If they did not cooperate, casino staff would prevail upon the police to charge them with ‘every cent’ (or, it might be said colloquially, to ‘throw the book at them’).

In summary, his Honour found that the casino employees told the respondents, a number of times, that they would go out of their way to make things worse for them if they did not ‘cooperate’ with police. He further found that the casino employees had portrayed themselves as ‘good men’, who were only trying to help the respondents to avoid imprisonment.[16]
[16]Clearly implicit in that finding was his Honour’s conclusion that this was far from the truth. The casino employees were not seeking to help the respondents avoid the consequences of their actions, but doing their best to persuade them to admit their guilt to police. They must have been fully aware that this was, almost certainly, not in the respondents’ interests and that any competent lawyer would have advised them not to answer police questions, at least at that stage.

After the police arrived, they questioned the respondents briefly. Casino employees were still present in the interview room when that questioning took place. Mr Hou gave evidence that he thought that the casino employees and the police were somehow connected and acting in unison with each other.

The judge rejected the submission on behalf of the respondents that the later admissions made to police, in both the records of interview and the written statements, should be excluded pursuant to s 84 of the Evidence Act. As previously indicated, that section requires the exclusion of evidence of any admission influenced by ‘violent, oppressive, inhuman, or degrading conduct’, or any threat of conduct of that kind.

The respondents submitted that if regard were had to what had occurred before the police arrived, the records of interview later conducted would have to be seen as having been influenced by ‘oppressive conduct’. His Honour, having viewed the video recordings of those police interviews, was satisfied that they had been conducted in a courteous and non-aggressive manner. He found that there was nothing to suggest that the admissions made had been influenced by earlier ‘oppressive conduct’. Section 84 therefore had no application to this case.

The judge then turned to s 85. He concluded that there was nothing about the ‘circumstances’ in which the admissions to police were made which indicated that the truth of those admissions was, in any way, adversely affected. The police had made no threats, uttered no promises, and offered no inducements to either respondent to speak. In fact, the police had conducted themselves impeccably.

The judge found that although English was not the first language of either respondent, they both understood what was being said to them by police during the course of their records of interview. In any event, Ms Cui had, in fact, been provided with an interpreter.

His Honour then turned to the next set of submissions put forward on behalf of the respondents, namely, that their records of interview should be excluded, pursuant to s 138 of the Evidence Act as having been improperly or illegally obtained. He rejected those submissions. Unlike the casino interviews, which had been conducted in a clearly inappropriate manner, that could not be said of the police interviews.

That was not, however, the end of the matter. The judge recognised that the primary argument put on behalf of the respondents was that the casino employees had conducted themselves so egregiously as to ‘taint’, irreparably, the otherwise voluntary confessions made to police during the course of the subsequent interviews. As a consequence, so it was said, the records of interview and the written statements made by the respondents should be excluded in the exercise of the judge’s general unfairness discretion under s 90 of the Evidence Act.[17]
[17]For reasons that are not entirely apparent, his Honour also considered s 135 of the Evidence Act as one basis for possible exclusion of the evidence. That section was not invoked by either respondent. For reasons that will become apparent later in these reasons for judgment, neither s 135, nor s 137, has any application to the present circumstances.

The judge observed that although counsel had referred to a number of authorities bearing upon the meaning of the expression ‘unfair to an accused to use’ in s 90, no party had referred to any case which held that legitimately obtained evidence could be rendered inadmissible because it was ‘tainted’ by earlier misconduct on the part of third parties.[18]
[18]As has been seen, there is clear authority for that proposition, at least in relation to s 84. See R v JF (2009) 237 FLR 142, 148 [32]; [2009] ACTSC 104 (Refshauge J). See also, R v Ye Zhang [2000] NSWSC 1099, [44] (Simpson J); Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299, 365 [280]; [2010] NSWCA 34; and R v Sumpton [2014] NSWSC 1432, [138] (Hamill J) (‘Sumpton’). See, further, fn [37].

His Honour noted that each respondent had given evidence before him to the effect that they had fully believed what the casino employees had told them. Their evidence was to the effect that this had led them to doubt that they had any realistic choice when determining whether to answer questions, or remain silent, during the course of the police interviews. The fact that the police had cautioned them and ‘given them their rights’ did not negate their having had those beliefs. Implicitly at least, that meant that the respondents did not answer questions put to them by police in the exercise of a free choice to speak, or be silent.

His Honour noted that each respondent was relatively young, and in the case of Ms Cui, very young. Mr Hou had been in this country for several years, but Ms Cui was here as a student. Neither respondent had ever been in trouble with the law. It was unlikely that either of them had any knowledge of the workings of the Australian legal system.

The judge said:

I consider that this was a significant interference with their rights to decide for themselves whether or not they should exercise their right to remain silent or to decline to participate in a record of interview or to make any signed statement to police. Further, although the admissions made by both to casino staff were far more restricted than the admissions later made to police, I consider that there is a real prospect that, having made limited admissions to the casino staff, there was no point in electing to exercise their rights of silence with police.

The judge subsequently added:

Before any questioning of the police interviews, both had clearly been cautioned and had their rights explained to them. On each occasion both elected to proceed with the interview, however I do not find that this is inconsistent with a belief by each of the accused that they were likely to be imprisoned unless they cooperated. That, after all, was what they had been told repeatedly by casino interviewers, each a former member of the police force of some experience.

His Honour went on to observe that he regarded it as significant that each respondent had exhibited extreme reluctance to make any admissions to casino employees when questioned by them. Somehow, when interviewed by police shortly thereafter, they became extraordinarily willing to answer questions and to incriminate themselves.

The judge’s findings, taken as a whole, led him to conclude that it would be unfair to the respondents, pursuant to s 90 of the Evidence Act, to permit either the records of interview, or the written statements made immediately afterwards, to be led against them. In arriving at that conclusion, his Honour had regard to the fact that the police interviews took place within a relatively short time after the questioning at the casino. This would have been at a time when what the respondents had been told by the casino employees would have been firmly imprinted in their memories.

The judge noted that in relation to Ms Cui, there were two additional matters which caused him to conclude that at least the later parts of her record of interview and her written statement should be excluded pursuant to s 90.

His Honour summarised the first of these matters as follows:

At one point in her police interview there was an issue as to whether a response given by her … and interpreted into English by the interpreter had been accurately interpreted. I accept the evidence of [the interpreter] … that her answer at Question 581 was not interpreted accurately and that what she said at that point was: ‘That is can I go home. Find a solicitor.’
…
I accept that at that point of the interview, [Ms Cui] did indicate that if she is allowed to go home she intends to find a solicitor. This is consistent with her evidence that she did want to speak to a solicitor but had no idea that a solicitor would be available to speak with her in the early hours of the morning and that she would have to wait until she was released before she could contact one. This was not translated by the interpreter and hence not heard or digested by the informant. There was no further mention of the finding of a solicitor at that time in the interview.
Understandably, the informant did not consider or clarify with [Ms Cui] as to whether she did wish to stop the interview at that point to contact a solicitor.

The second matter to which his Honour referred was as follows:

Secondly, shortly after that time, at Question 585, [Ms Cui] was asked by the informant whether she wished to say anything else in relation to the matter at that stage. [Ms Cui] replied with the words, ‘No more’. At Question 586, the informant asked [Ms Cui] whether she was willing to make a further statement to police in relation to the matter and I quote the informant from the transcript, ‘To give us evidence against [Mr Hou]’.
[Ms Cui] indicated her willingness to make such a statement … I am satisfied that the plain meaning of this exchange is that [Ms Cui] was asked to make a statement to be used against [Mr Hou] and agreed to do so. At no point in the interview was she told that such a statement would or could be used against her.
The prosecution now wishes to tender that statement made by [Ms Cui] as evidence against her …
I consider that, from that point in the interview, [Ms Cui’s] answers to questions put to her are likely to have been affected by the request for her to make the statement against [Mr Hou], and on the understanding that questions asked of her and her answers given likely related to evidence against [Mr Hou] rather than her.

Finally, the judge said that he would have invoked both ss 135 and 137 of the Evidence Act as separate and distinct bases upon which to exclude the police records of interview and the written statements. Those sections, of course, involve a balancing exercise whereby the probative value of the evidence sought to be led is to be weighed against the danger of unfair prejudice to the accused.[19]
[19]Neither counsel sought to invoke s 135. Counsel for Mr Hou sought to invoke s 137, but counsel for Ms Cui had only made passing reference to that provision by way of footnote. The applicant, in the Director’s written contentions before this Court, submitted that the judge’s treatment of those particular provisions had been both brief and lacking in analysis or reasoning. As will become apparent, we agree with the applicant in that regard, and are satisfied that his Honour erred in concluding that these sections could form the basis for the exclusion of the evidence in question.

The applicant’s summary of contentions

In support of proposed grounds 1–3, it was submitted that the judge had erred in ruling that the four casino employees were ‘… appointed by or under an Act’, namely, the CCA. The judge was also said to have erred by finding that the functions or duties of those employees included the ‘prevention or investigation of offences’.

The applicant submitted that his Honour misunderstood ‘the purpose and intention’ of the CCA, having regard to s 1 of that Act:

Purposes
The purposes of this Act are—
(a)to establish a system for the licensing, supervision and control of casinos with the aims of—
(i)ensuring that the management and operation of casinos remains free from criminal influence or exploitation; and
(ii)ensuring that gaming in casinos is conducted honestly; and
(iii)promoting tourism, employment, and economic development generally in the State;

(b)to provide for actions that may be taken by the Chief Commissioner of Police with the aim of ensuring that the casino complex remains free from criminal influence or exploitation.

The applicant, at one point, submitted that s 1(b) cast a specific obligation upon the Chief Commissioner of Police that encompassed all matters of a criminal nature, and therefore covered the field in that regard. This was said to demonstrate a clear delineation between the various obligations of casino licence holders (dealt with under s 1(a)), and the investigation of crime, and law enforcement generally, exclusively reserved to the police under s 1(b). That delineation was said to make it clear that ‘special employees’ under the CCA had no responsibilities under s 1(b), but were limited, in their roles, to facilitating the responsibilities set out in s 1(a).

The applicant also noted that the judge, in his ruling, had relied heavily upon s 37 of the CCA, which, as we have said, creates a category of ‘special employee’. That designation is relevantly defined as follows:

special employee means a person who—
(a)is employed or working in a casino in a managerial capacity or who is authorised to make decisions, involving the exercise of his or her discretion, that regulate operations in a casino; or

(b)is employed or working in a casino in any capacity relating to the following activities—
(i)the conduct of gaming or approved betting competitions;
(ii)the movement of money or chips about the casino;
(iii)the exchange of money or chips to patrons in the casino;
(iv)the counting of money or chips in the casino;
(iva)the security and surveillance of the casino;
(v)the operation, maintenance, construction, or repair of gaming equipment or totalisators;
(vi)the supervision of any of the above activities;
(vii)any other activity relating to operations in the casino that is specified by the Commission for the purposes of this definition by notice in writing given to the casino operator.

Section 38 of the CCA, as we have indicated, provides for ‘special employees’ to be licensed. Sections 39–45 set out a series of statutory requirements for such employees, which must be complied with strictly. Plainly, those who occupy the role of ‘special employee’ must be of good character and have appropriate experience.

The applicant submitted that s 37 of the CCA should, effectively, be read down. That would mean that ‘special employees’ under that section are confined in their functions or duties to such matters of ‘security and surveillance’ as are necessary to ensure that the casino remains ‘free from criminal influence or exploitation’. It was submitted that the role of ‘special employees’, pursuant to s 37, was confined to protecting the public, and particularly casino patrons, from depredation and criminality on the part of the casino. Their role did not extend to protecting the casino from criminality on the part of patrons and others.

The applicant next referred to s 81 of the CCA. That section confers upon casino employees (including, of course, ‘special employees’) the power to detain anyone suspected, on reasonable grounds, of any of a number of different types of fraud upon the casino. The applicant noted, however, that the right to detain under that section applies only until the arrival, at the place of detention, of the police. For that reason, it was submitted, s 81 provided further support for the proposition that the investigation into fraud committed against the casino was not a matter for ‘special employees’, but solely for police. The functions and duties of ‘special employees’ were, therefore, not those of ‘investigating officials’ as defined. Self‑evidently, it was said, ‘special employees’ were not intended to have any role whatever in the prosecution of such matters.

Finally, on this point, the applicant noted that Mr Robin Walsh (generally known as ‘Craig’), the General Manager of Security and Surveillance at Crown Casino, had given evidence that he did not regard himself or any of his group of ‘special employees’ as ‘investigating officials’. When asked whether he considered that Mr Hou was required to answer questions put to him by casino staff, he replied that he did not believe so.[20]
[20]The question, in that form, was pointless as, self-evidently, Mr Hou was not obliged to answer questions put to him by anyone. That was so, irrespective of whether those who questioned him were investigating officials or not.

Still, the applicant, in the summary of written contentions, complained that the judge’s finding that the four ‘special employees’ named in the proposed grounds of appeal were investigating officials was flawed, partly because, in his ruling, no mention was made of Mr Walsh’s evidence on this point.

The applicant submitted that if the judge was wrong to find that these casino employees were investigating officials, it would necessarily follow that they were never under any obligation to comply with any of the requirements of the custody and investigation provisions. It would also follow that the admissions obtained in the course of the casino interviews were neither improperly nor illegally obtained within the meaning of s 138 of the Evidence Act.[21]
[21]It would not necessarily follow that such questioning would not give rise to unfairness of a kind that would warrant discretionary exclusion of any confessions or admissions made to non-police officials. See DPP v Azzopardi (2006) 159 A Crim R 543, 547–8 [21]; [2006] VSC 29 (Bell J).

The applicant submitted that the finding by his Honour that the casino employees were ‘investigating officials’ was pivotal to the judge’s ruling. That was so, despite the prosecution having made clear from the start that it did not propose to rely upon anything said by the respondents to those employees. It was contended that if the judge erred in that finding, that of itself would vitiate the exercise of the s 90 discretion in relation to the police interviews.

Turning then to the primary argument on behalf of the respondents, which the judge accepted, namely that the casino interviews were conducted in such an appalling manner as, irrevocably, to taint the later police interviews, the applicant submitted, quite simply, that this finding was not open.

In addition, the applicant submitted that even if the judge was correct in his finding that the casino employees were ‘investigating officials’, and that they had, therefore, contravened the custody and investigation provisions, the police interviews were another matter. They were conducted in an unimpeachable manner. Accordingly, there was no basis for the exercise of the s 90 discretion.

The applicant noted that the answers given by each respondent to the questions put by casino employees had been guarded. To the extent that those interviews contained admissions, they were of marginal significance only. On the other hand, the police interviews led to confessions in the fullest sense. These were, to use common law parlance, ‘voluntary’ and there was nothing to suggest that they were unreliable. In particular, there was no indication that either respondent had their will overborne.[22]
[22]Stephen Odgers points out that there are a number of cases which strongly suggest that terms such as ‘voluntary’ and ‘will overborne’ should be avoided in the context of the new regime which exists under the Evidence Act. See Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 14^th ed, 2019) 620.

In Mr Hou’s case, it was noted that he only began to make admissions to police after he was confronted with Ms Cui’s own answers to police questions. Early on in his police interview, his answers were guarded and selective. It was submitted that this fact, of itself, made it clear that he had not been, in any way, ‘oppressed’ by what casino employees had said to him. Moreover, it was clear that his will had not been ‘overborne’. In addition, the applicant submitted, there was no causal link[23] between the conduct of the casino employees (however inappropriate that may have been) and Mr Hou’s subsequent admissions to police.
[23]See, generally, Cornwell v The Queen [2010] NSWCCA 59, where the need for a causal link between an earlier impropriety and a subsequent admission, if the argument of improperly obtained evidence were to succeed, was emphasised.

The applicant submitted that Mr Hou appeared relaxed and comfortable throughout the police interview. There was a gap of several hours between his arrival at the police station and the commencement of that interview. He clearly understood the police caution and his rights, which were given to him on no fewer than three occasions. Each time, he acknowledged that he understood what was being said. Indeed, not only did he agree to answer questions, but he also chose to make a written statement in which he admitted his criminality. Significantly, he never, at any stage, lodged a complaint about his treatment despite having several opportunities to do so.

As regards Ms Cui, it was submitted that nothing that took place during the casino interview had ‘tainted’ her later admissions to police. In her case, Mr De Francesco, the casino employee who questioned her, asked her whether she thought she had done anything wrong. She repeatedly denied any such wrongdoing. She was told by him that when police arrived, she would be advised of her rights. She was also told that she would be able to contact a solicitor. She replied ‘okay, yeah’. She appeared content to answer questions, although she was guarded, and maintained full denials throughout the casino interviews. It was not until she was later questioned by police that she made any significant admissions.

Once again, it was submitted that police had treated Ms Cui fairly throughout her record of interview. She was relaxed and, apparently, cooperative. At no stage could it be inferred that the answers she gave were, in any way, influenced by her earlier casino interview.

The applicant submitted that the judge had been wrong to find that any admissions that Ms Cui made to police were ‘tainted’ by reason of any belief on her part that the cautions administered by police were meaningless. The judge was also wrong to say that he would, in any event, have excluded all her answers from question 581 of the record of interview onwards. Ms Cui must, by that stage, have understood that she had a right to contact a lawyer and that she could do so at any time. She must, also, have understood that if she wished to exercise that right, the record of interview would be suspended. Finally, it was submitted that she must also have understood that any statement she made against Mr Hou, when invited to do so, could be used against her.

The applicant then turned to what really lies at the heart of this interlocutory appeal, namely, whether the judge erred in holding that it would be unfair to the respondents to use their admissions to police against them.

The applicant accepted that the judge’s reasoning, in relation to s 90, turned substantially upon findings of fact. Importantly, his Honour accepted the evidence given by the respondents as to their state of mind when they were being questioned by police. Sensibly, the applicant did not seek to challenge the judge’s assessment of their credibility.

Nonetheless, it was submitted that it was not open to his Honour to find, as he did, that it would be unfair to the respondents to use their admissions to police against them in the trial.

The applicant submitted that even if the findings of fact made by his Honour were all ‘assumed in favour of the accused’, there was still nothing unfair, in any relevant sense, in admitting the evidence under challenge.

According to the applicant’s summary of written contentions, the unfairness to which s 90 refers must be that which is fair ‘as between prosecution and defence.’ The question then posed rhetorically is: how can it be unfair to an accused for the prosecution to lead evidence of a confession or admission, seemingly reliable, even if that confession or admission was made under the mistaken belief that the accused had to answer questions put to him or her?

In other words, the applicant submitted that s 90 did not encompass some broad and general notion of fairness. Rather, it was to be construed strictly and on an adversarial basis. The reach of the section extended only to fairness between the prosecution and the defence, and did not involve any examination of what some third party may have said or done to bring about a misconception on the part of the accused.

The applicant next submitted that several recent High Court decisions suggested that even where the police had acted positively to deceive or manipulate a suspect into confessing his or her guilt, any evidence so obtained would be admissible. Such evidence would not be subject to exclusionary discretion. The applicant referred, in that regard, to Em v The Queen,[24] where Gleeson CJ and Heydon J noted that ‘every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute …’[25]
[24](2007) 232 CLR 67; [2007] HCA 46 (‘Em’).
[25]Ibid 95 [77]. One could add to Em the example of Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39, where it was held that the police were perfectly entitled to engage in deceptive conduct in order to procure evidence against a suspect.

According to the applicant, it makes no difference at all to the admissibility of the evidence that the third party who may have offered misleading and incorrect advice to the suspect happened also to qualify as an ‘investigating official’. Unless it is that particular official, or that official’s organisation, that brings the ultimate prosecution, the accused has no right to claim that it would be unfair to use evidence procured as a result of the third party’s actions in the proceedings inter partes between the prosecution and defence.

The applicant submitted that another way of putting the matter was that no link could legitimately be drawn between the improper actions of a third party in seeking to have the accused give up his or her right to silence and the ultimate decision of each respondent, subsequently, to confess to police. He reiterated that no link could be established between what the casino employees had done here and the subsequent confessions made to police. The judge’s finding as to ‘taint’ were simply not open.

Finally, the applicant submitted that the judge’s reliance, in the alternative, upon ss 135 and 137 of the Evidence Act was wholly misconceived. Evidence is not unfairly prejudicial merely because it makes it more likely that an accused will be convicted. These provisions are directed towards an entirely different type of issue, as where there is a risk that a jury may adopt an illegitimate form of reasoning, or give the evidence more weight than it should properly bear.[26] Neither of those considerations were present here. Accordingly, so it was submitted, these provisions were entirely irrelevant.
[26]See R v Yates [2002] NSWCCA 520, [252].

The respondents’ summaries of contentions

On behalf of Mr Hou, it was submitted that although there were five proposed grounds of appeal, with grounds 1–3 focusing upon whether the casino employees named were ‘investigating officials’, the ‘real’ complaint underlying this interlocutory appeal fell within proposed grounds 4 and 5.

In support of that submission, it was noted that his Honour’s ruling that the casino employees were investigating officials had no real bearing upon the ultimate question, which was whether the confessional statements made to police should be excluded. The basis of that decision lay in what the judge found as to unfairness pursuant to s 90 of the Evidence Act. That did not turn, to any significant degree or at all, upon whether or not there had been breaches of the custody and investigation provisions. The judge would have come to the same conclusion with regard to s 90 and the general unfairness discretion irrespective of whether such breaches were established.

Nonetheless, Mr Hou contended that the judge had been correct to find that the four casino employees met the description of ‘investigating officials’. Their functions and duties clearly involved both the prevention and investigation of offences against the casino, and not just by the casino.[27] His Honour was also correct to find that they were all appointed by or under the CCA.
[27]Indeed, Mr McHutchison at one point early on in his discussions with Mr Hou characterised himself as an investigator, which, it was submitted, was plainly what one of his functions or roles happened to be.

To the extent that the applicant sought to rely upon Frugtniet, it was submitted that this case was not directly relevant to the issue raised in grounds 1–3. The term to be construed in Frugtniet was ‘member of the police force’ and it was there held, for reasons that have nothing to do with the present matter, that this did not include members of the Australian Federal Police.

In relation to general unfairness and s 90 of the Evidence Act, it was noted that the judge had given careful consideration to Mr Hou’s submissions in relation to ss 84, 85, 137, and 138 of that Act. His Honour had rejected those submissions and there was no challenge to his ruling in that regard. However, he had approached the unfairness discretion in s 90 in a broader, and entirely appropriate, manner. He had determined that he should look at all the circumstances leading up to the police interviews, as well as those interviews themselves.

The judge found that the conduct of the casino employees had ‘tainted’ the later police interviews. In Mr Hou’s summary of written contentions, it was said that the judge based that finding upon a combination of the following factors:

a.The respondent was not cautioned or provided with his rights by casino staff under the provisions in sub-division (30A) of the Crimes Act;
b.The interview was relatively lengthy and somewhat repetitive with casino staff putting or at least inferring that they had a very strong case against the respondent;
c.Representations were made by casino staff that they had considerable influence with the police as to whether charges would be laid against the respondent, whether he would go to gaol, and that it was almost certain that unless he cooperated with casino staff and police he would go to gaol;
d.That if the respondent’s family found out they would be upset about the offending;
e.That if the respondent cooperated, he would be allowed to go home and if he did not cooperate with and tell the truth to casino staff, they would tell the police to charge him with ‘every cent’ (i.e. — everything they could possibly charge him with);
f.In effect, the respondent was told by casino staff that if he did not cooperate, the casino staff could make things worse for him;
g.Cooperating might be the difference between going [to] prison and not going to prison;
h.The casino staff were good men just trying to help the respondent to save him from gaol, to minimise it for him;
i.What the trial judge referred to as perhaps the ‘low point’ of treatment of Mr Hou by casino staff was when Mr Lyberis told [Mr Hou] ‘We are just trying to help you, mate. You’ve just got to use it. It’s like a get out of gaol card and you might only get one opportunity’;
j.When the respondent was initially cautioned by police at the casino, it was in the presence of casino staff and in his evidence, Mr Hou said he thought casino staff and police were ‘together’; [and]
k.The interviewers (there were three in Mr Hou’s case, being McHutchison, Lyberis and Walsh) made it clear that they had been police officers for a substantial time and knew how police worked[.]

The judge also found that although Mr Hou had been treated perfectly well by police and given all necessary cautions by them, his own evidence had been that he did not truly believe that he had a right to remain silent. The judge accepted that evidence, having regard to what led up to the police interview. Mr Hou had observed that casino staff had been present with police in the interview room at the casino, after the police had arrived. He said that he believed that they were acting in unison with each other. The judge had accepted that evidence.

Mr Hou further submitted that it was significant that the interview room at the casino, to which he was taken, had a sign on the door which said ‘Victoria Police Interview Room’. In addition, the casino questioning had extended over some three and a half hours. It was said that this would have had a serious impact upon Mr Hou’s capacity to resist the inducements that casino staff were offering and the threats, hardly subtle, that were being made.

Finally, in Mr Hou’s submissions, it was noted that s 90 confers upon a trial judge a broad and general discretion to exclude confessional evidence based upon unfairness.[28] The question that the section poses is whether it could be unfair to the accused to use the evidence in the trial. It is not, as the prosecution would have it, ‘what is fair as between the prosecution and the defence.’
[28]It should be noted that, even beyond the general exclusionary discretion under s 90, there is a broad, overriding common law exclusionary discretion, based upon a judge’s duty to ensure that an accused receives a fair trial, which still exists, notwithstanding the enactment of the Evidence Act. See Haddara v The Queen (2014) 43 VR 53, 58–9 [14], 77–8 [70]–[72]; [2014] VSCA 100 (Redlich and Weinberg JJA). See also, R v Lee (1950) 82 CLR 133; [1950] HCA 25.

It was submitted that the contention that it was not open to the judge to exclude the evidence in the exercise of his discretion, even having regard to the powerful factual findings that he made, was simply unsustainable.

Ms Cui’s summary of written contentions broadly accorded with that put forward on behalf of Mr Hou. In some respects, her contentions went a little further. She submitted that grounds 1–3 were ‘incompetent’ because the findings as to ‘investigating official’ under challenge were in no way germane to the judge’s ultimate conclusion that Ms Cui’s confessional statements should be excluded under s 90.

It was submitted in any event that his Honour had been correct in holding that the casino employees were ‘investigating officials’, in the relevant sense. Although Crown Casino is, itself, a private entity, its operations are subject to strict legislative control under the CCA. That Act has as among its purposes that the casino operate free from criminal influence or exploitation, and that gaming is conducted honestly.

The casino employees who interviewed Ms Cui were all licensed ‘special employees’. They were employed, at least in part, to ensure the security and surveillance of the casino. This meant that their functions and duties extended to the prevention and investigation of offences against the casino. There was nothing in the CCA to suggest that these functions and duties were confined to ensuring that the casino did not cheat its patrons. Any such suggestion was fanciful.

Ms Cui submitted that the applicant’s proposed grounds 4 and 5 should be rejected. The prosecution’s contentions were largely confined to re-litigating findings of fact made below. No error of either principle or of law had been identified. The judge had an immeasurable advantage over this Court in having seen and heard the evidence given on the voir dire. Both because the application to this Court challenged the exercise of a discretion, and involved an interlocutory appeal, House principles applied. That meant that the applicant had to overcome a very significant hurdle in seeking to overturn the judge’s ruling.

More particularly, it was submitted that the judge had been well entitled, on the evidence, to find that the casino interview conducted with Ms Cui had ‘tainted’ and, therefore, rendered unfair the use of the admissions made to police.

In that regard, Ms Cui submitted that the judge’s finding in relation to s 90 was justified on the basis of the following evidence and evidentiary findings:

[a.][Ms Cui] was interrogated by Casino staff without caution and without having been given her rights under sub-div (30A) … ;
[b.]she testified that she thought she had no choice but to speak to Casino staff and police;

[c.] she was strip-searched at least once [by a female police officer];
[d.]the audio-recording of [Ms Cui’s] interrogation at the hands of Casino staff was incomplete and no [satisfactory] explanation was given on the voir dire for why it was incomplete … ;
[e.]approximately one hour of the interrogation was not recorded … ;
…
[h.][Ms Cui] was offered the inducement that, when police arrived, if she cooperated with them, she could possibly go home very quickly … The inducement was not recorded … ;
[i.]she was told what other suspects at the casino had allegedly said, and that if she didn’t do likewise ‘she would be in big trouble’ … ;
[j.]she was cross-examined, and had put to her repeatedly that she had cheated and had entered into an agreement with [Mr Hou] to defraud the casino;
[k.]Casino staff repeatedly told [Ms Cui] ‘in essence’ that they had a very strong case against her … and that she was a ‘criminal’ and ‘guilty[’];
[l.]Casino staff told her that it was almost certain that, unless she co‑operated with them and police, she would go to gaol … ;
[m.]more generally, [Ms Cui] was told that co-operating might be the difference between going to prison and not going to prison … ; and
[n.]part of her co-operation meant that she had to make a statement to police implicating [Mr Hou].

It was submitted that the crux of Ms Cui’s evidence was that she believed throughout the police interview that her only chance of avoiding gaol was to ‘cooperate’. By ‘cooperate’, she meant ‘admit her guilt’. The judge accepted her evidence that this was her state of mind, as he was perfectly entitled to do.

Ms Cui said that while she was being questioned by police, she did not truly believe that she had any right to remain silent. The judge accepted her evidence in that regard, as he was entitled to do.

It was submitted that the behaviour by casino staff in the course of their questioning of Ms Cui was nothing short of ‘outrageous’. It was further submitted that his Honour’s exposition of the relevant principles governing s 90 and the manner in which he had applied those principles to the facts, as he found them to be, was entirely orthodox and consistent with authority. Finally, it was submitted that the relevant focus of s 90 is upon the fairness of using the impugned evidence against the accused at trial, and not upon the conduct of the police who carried out the relevant questioning. That was precisely the approach that his Honour had taken.

Analysis

As we have indicated, the voir dire extended over some 13 days. It led, eventually, to the production at trial of almost 100 pages of written submissions. No stone was left unturned in the efforts made on behalf of the respondents to have the police interviews excluded. Similarly, the applicant’s submissions below and to this Court demonstrate a somewhat unrelenting approach to the challenge to the judge’s ruling.

Irrespective of whether the casino employees who questioned the respondents were ‘investigating officials’, they must have known that it was quite inappropriate to seek to persuade them not to exercise the rights which the law affords them in relation to answering questions and seeking legal advice. Those employees were well aware of what they were doing. Their aim could only have been to ‘poison the well’, so far as the respondents were concerned, by effectively getting them to give up their rights.

Grounds 1–3: Were the casino employees ‘investigating officials’?

The question to be decided, as correctly identified by the judge, was whether each (or any) of the four casino employees who detained and questioned the respondents (‘the relevant officers’) was

a person appointed by or under an Act … whose functions or duties include functions or duties in respect of the prevention or investigation of offences,

within the definition of ‘investigating official’ in s 464(2) of the Crimes Act.

This was, plainly enough, a question of fact. It was necessary to identify, and then to characterise, the functions and duties which the relevant officers were engaged to perform. The factual inquiry required a consideration, first, of the statutory provisions under which the officers were appointed and, second, of what the evidence showed about the practical content of their functions and duties. It was not suggested on this application that anything done by these officers in relation to these respondents was outside the scope of their appointment under the CCA.

As noted earlier, each of the relevant officers was licensed as a ‘special employee’ under s 38 of the CCA to perform functions in relation to ‘the security and the surveillance of the casino.’[29] The position of ‘special employee’ is clearly a position of trust. In deciding whether to grant a licence for this purpose, the Commission must have regard to the applicant’s ‘integrity, responsibility, personal background and financial stability’.[30]
[29]CCA, s 37(1)(iva).
[30]CCA, 44(1)(a).

Evidence given on the voir dire revealed that there were separate departments responsible for ‘security’ and ‘surveillance’, both overseen by the General Manager of Security and Surveillance, Mr Walsh. The special employee who led the interviews of the respondents, Mr McHutchison, was an ‘investigations manager’ attached to the ‘security investigation unit’. It would seem, therefore, that the responsibility of these employees for ‘security’ extended to the financial security of the casino as well as to its physical security and good order.

In any case, the function of ‘surveillance’ was clearly applicable to both. That is, the responsibility — and the authority — to conduct surveillance extended to everything going on inside the casino, in order to identify any threat to the orderly conduct of activities within the casino or to the integrity of the gaming operations themselves. Mr McHutchison confirmed that it was part of his role to ‘stop the casino from losing money through cheating’ and that he worked with the surveillance team to that end.

Mr Walsh said that he relied on the technical expertise of the Director of Surveillance to identify irregular activity on the gaming tables. Once he was shown the footage in the present case, he could see that there was ‘thieving’ going on. He decided that ‘we were going to prevent continuing thefts’, by arresting those involved. Before that occurred, he said, it was necessary to have the footage shown to ‘all of the … members that were used to … arrest the people that night … because they weren’t experts in surveillance either [and] they all needed to understand what had actually occurred’.

Co-ordinated ‘security and surveillance’ activity of this kind is, of course, wholly consistent with the purposes of the CCA referred to earlier, that is, to ensure that the operation of the casino ‘remains free from criminal influence’ and ‘to provide for actions that may be taken by the Chief Commissioner of Police’ to ensure that it does.[31] The nexus with those purposes is made even clearer by s 81 of the CCA, which provides as follows:
[31]CCA, s 1.

(2) A person who is—
(a)for the time being in charge of a casino; or
(b)an agent of the casino operator; or
(c)a casino employee—

and who suspects on reasonable grounds that a person in the casino is contravening or attempting to contravene section 81, 82, 83 or 83A of the Crimes Act 1958, section 80 of this Act or a prescribed provision of this Act or has contravened any such section or provision may detain the suspected person in a suitable place in or near the casino until the arrival at the place of detention of a police officer.

(3) A person may not be detained under this section unless—
(a)no more force is used than may be reasonably necessary; and
(b)the person detained is informed of the reasons for the detention; and
(c)the person effecting the detention immediately notifies a police officer of the detention and the reasons for the detention.

As can be seen, s 81(2) confers a power of detention on — relevantly — a casino employee who suspects on reasonable grounds that a person in the casino is committing, or attempting to commit, an offence of the type there specified. Relevantly for present purposes, the specified offences include obtaining property by deception (s 81) and obtaining financial advantage by deception (s 82). As Senior counsel for the Director properly conceded, the surveillance function conferred on special employees is directed at the identification of offences of that kind. That is, surveillance will be one means by which the commission, or attempted commission, of such an offence will be identified, thus triggering the power to detain.

As we have seen, that is exactly what occurred in the present case. Surveillance detected the apparent commission of dishonesty offences. After seeing the surveillance footage, the head of security and surveillance determined that there should be prompt intervention to prevent further offending. The relevant officers were shown the footage and were then instructed to arrest the suspects and detain them until police arrived.

As can be seen, the functions of all of the special employees involved — including the relevant officers — were functions ‘in respect of the prevention or investigation of offences’. Unsurprisingly, there was a division of function, as different skills were required at different stages of the process. Once the technical surveillance experts had detected the offending, the function of the relevant officers was to prevent its continuation by arresting the suspects and detaining them, thus facilitating investigation of the offences by Victoria Police.

The relevant officers were, therefore, ‘investigating officials’ within the statutory definition. His Honour was clearly correct to so conclude. The internal view to the contrary, put forward by Mr Walsh in evidence, was erroneous.

The officers, of course, went much further than merely arresting and detaining the respondents. They proceeded to conduct their own investigation of the suspected offending, by lengthy questioning of the respondents. Mr McHutchison confirmed in evidence that he wanted to find out how an experienced dealer had come to be colluding with casino patrons. This information would assist him to perform his role as investigation manager in the security investigation unit. It was, in other words, part of his function as a special employee to investigate offences, no doubt in order to enable the development of strategies to prevent similar offending in the future.

It is notable that, although s 81 confers a power to detain, there is no associated power to question the person detained. Further, the power to detain is itself strictly limited. It is exercisable only ‘until the arrival of a police officer’ and only if police are immediately notified of the detention. The provisions clearly anticipate that the suspect will be handed over to police at the earliest practicable opportunity. Nor, as the judge noted, does the statutory power of (citizen’s) arrest under s 458 — which the relevant officers exercised here — carry with it any express power to question the person apprehended.

The conclusion we have reached means that, in future, any questioning of a suspect by a ‘special employee’ having responsibility for security and surveillance will be authorised — and regulated — by s 464A. Importantly, this means that such special employees — as investigating officials — will be obliged to administer the caution required by s 464A(3) if they propose to question the suspect pending the arrival of police. Self-evidently, casino employees, as investigating officials, will not be required to administer that caution if they do not propose to engage in questioning the suspect (other than requesting a name and address) or carrying out an investigation in the sense referred to in s 464A(2) and (3). Likewise, if an investigating official who arrests and detains a suspect does not propose to question him or her, and simply holds them until the imminent arrival of the police, that official will not be obliged to comply with any of the other custody and investigation provisions.

Our conclusion accords with the clear legislative intention conveyed by the wide definition of ‘investigating official’ in s 464(2). Parliament intended that the important protections conferred by subdivision 30A on a person being investigated for a suspected offence should be available across the full range of statutory investigations and that no narrow view should be taken of its scope. The present case provides a powerful illustration of why this should be so.

Grounds 4 and 5: the s 90 issue

Although the judge made findings of fact that were highly critical of the behaviour of the casino employees, which were not challenged by the applicant before this Court, it is appropriate to set out, to some degree, just how unfairly and improperly the respondents were treated during those casino interviews.

Mr McHutchison, who was primarily the person who arrested Mr Hou, began by telling him that he was the ‘investigations manager with Crown’. Having told Mr Hou that the matter was ‘very serious’, he said ‘what I need you understand is you need to be honest with us.’ He went on to say ‘if you don’t cooperate with us, you’ll cop the full extent of the law.’ He added, ‘all I ask is you be honest, and that will help you.’ When Mr Hou did not answer one of his questions, Mr McHutchison replied ‘it’s not gonna help’.

Mr McHutchison told Mr Hou that he was not the first dealer that had ever been arrested. He added that investigation staff had never made a mistake. He said that once the police arrived, there was nothing that could be done for Mr Hou. Casino staff would be the only ones who could help him. They could tell police that Mr Hou had been cooperative and that they should go after the patrons who were ‘the real cheats’. Once the matter went to court, Mr Hou’s cooperation would help him.

At one point, Mr Walsh joined Mr McHutchison in the interview room. He began by saying to Mr Hou that it was ‘much better to be cooperative than … not.’ Shortly afterwards, when Mr Hou denied having received any share of the proceeds of the cheating and denied having told the three women anything about the first card in the shoe, Mr Walsh said that he would like to be able to tell the police that Mr Hou had been cooperative and that he should think about his family, thereby applying none too subtle pressure upon him to answer questions put to him.

Mr McHutchison told Mr Hou that there were two options available to him. One was to say nothing in answer to questions put to him, in which case he would be handed over to the police and left on his own. As Mr McHutchison said ‘best of luck when it goes to court’, but there would be no reference to Mr Hou having been helpful or cooperative. Rather, the court would learn that he had lied to casino staff. In that event, Mr McHutchison said, he would tell police ‘we want him charged with everything, every single cent that we lost to these females’. He reiterated that he knew full well what Mr Hou had been doing because he was an investigations manager, responsible for ‘these investigations’. He continued ‘I asked to speak to you to see if I could help you with cooperation … I don’t care about the patrons, they mean nothing to me … you deserve a chance to explain your side of the story.’

Mr McHutchison went on to tell Mr Hou that he had been a detective for 12 years before joining Crown Casino. He insisted that he did not lie to people. He said that when the police arrived, they would speak to the patrons first. They would then come and speak to Mr Hou, and would give him a ‘caution and rights’ and then take him back to the police station. Upon ascertaining that Mr Hou lived with his parents, he told him that police would probably execute a search warrant at his home, which would be embarrassing for his family. He said ‘we just need to understand … and the police need to understand’. He indicated that his primary interest was in ensuring that the women were prosecuted to the hilt, and not so much in Mr Hou.

Shortly afterwards, he told Mr Hou that once the police had arrived, he himself would question Mr Hou further. Cooperation was the only way by which ‘we can help you’. He even, at one stage, said to Mr Hou that what he had done did not make him ‘a bad person’. He repeatedly told Mr Hou that he was asking these questions in order to help him and at one point said that, depending upon the level of cooperation, he might go back only as far as losses of $700,000, rather than tracing Mr Hou’s conduct back further, so that losses might reach up to $1.5 million. He told him this could make a big difference to what happened to Mr Hou.

At a later point, Mr McHutchison told Mr Hou that if he chose not to be cooperative, which was the only way in which he might avoid being imprisoned, one of the women who had colluded with him would certainly seek to benefit from assisting police with the investigation. He then added if someone is ‘good to me and makes my job easier, [okay], then I wanna make it better for them. That’s the whole reason why I’m here asking you questions’. He repeated that a failure to cooperate would lead to Mr Hou being charged with ‘every cent’. He went on to say that he was not writing anything down, knowing full well that the conversation was being recorded.

Having reminded Mr Hou that police would take him to the police station, and question him in an interview room, Mr McHutchison said:

… if I can say to them[,] and I will say to them[,] that you’ve told us what happened [‘]treat him alright[’], yeah they will. That’s why we have dealings with the police. That’s my job[,] to deal with police … if we tell them … to treat someone good, they’ll treat them good.

Importantly, Mr Hutchison said to Mr Hou ‘I’m telling you what can help you … and you cooperating might be the difference between going to prison, and not going to prison’.

The interview went on in this vein for a very considerable period of time. The passages we have set out convey something of the pressure that was being applied by Mr McHutchison to Mr Hou to answer questions, both from casino staff and from police. Mr McHutchison’s manner of dealing with Mr Hou in this way was, in our view, inappropriate and quite improper.

We turn then to the questioning of Ms Cui by Mr De Francesco and Mr Eales. At one point, the police, who had arrived, entered the interview room at the casino. They informed her that she was under arrest for obtaining property by deception and cautioned her as to her right to remain silent. She said that she understood. She was also given her other rights under the custody and investigation provisions.

By this stage, however, Ms Cui had already made some limited admissions to casino staff. For reasons that are not apparent, Mr De Francesco continued to conduct the interrogation of Ms Cui, despite the fact that police had now arrived.[32] In essence, he said to her:

·So I think you wanna think about telling the truth … other people are saying different to what you’re saying.
·You’re gonna get yourself in more trouble … if you don’t tell the truth.
·You know that … what you were doing … was wrong.
·[Adam] and the other two … they’re telling the truth … You’re the only one that’s not.[33]

[32]In Ms Cui’s submissions before the judge, it was submitted that the informant had left the room, leaving her alone in the company of De Francesco and Eales.

[33]It should be noted that the assertion that Ms Cui’s account differed from that of Mr Hou, and the other two female confederates, was, at least, misleading.

At various stages, Mr De Francesco virtually cross-examined Ms Cui, rejecting what she said and effectively accused her of lying. While it is fair to say that the portion of the questioning of Ms Cui that was recorded seems not nearly to have been as pressurised and improper as that of Mr Hou, over an hour of the casino interrogation involving her was not recorded. She gave evidence that she was told, unequivocally, that her only chance of avoiding imprisonment was cooperating, and the judge accepted her account as truthful.

In his oral submissions to this Court, Mr Boyce QC accepted that the findings of fact made by the judge regarding not just what had been said by casino staff, but also the inferences to be drawn from their various statements, could not be impugned on appeal. It must necessarily follow that his Honour’s finding that there was a causal link between the various threats and promises made to the respondents by those staff and their decision not to exercise their right to silence at the police interviews must stand.

At that point, it becomes almost impossible to see how the judge’s exercise of discretion, in relation to s 90, can be said to have miscarried. The ‘taint’ which his Honour found must have had precisely the effect that he identified in his ruling in the passages set out at [59] and [60]. It is difficult to see how it can be said that findings of this nature, particularly when brought about by improper questioning carried out by ‘investigating officials’, cannot trigger the exercise of a general unfairness discretion of the kind embodied within s 90. That section empowers the court in a criminal proceeding to refuse to admit evidence led by the prosecution of an admission where to use the evidence would be ‘unfair to a defendant’. The section does not, itself, define unfairness and it is a ‘protean and necessarily fact-specific concept’.[34] Of course, the primary focus of s 90 is upon the fairness of the use of the evidence at trial, rather than whether or not those who obtained the admissions had themselves acted fairly or unfairly.
[34]DPP v James (a pseudonym) [2016] VSCA 106, [19] (Osborn and Priest JJA). See also, Em (2007) 232 CLR 67, 101 [94] (Gummow and Hayne JJ). See, generally, Greg Taylor, ‘The Difference Between ss 84 and 85 of the Uniform Evidence Acts’ (2019) 93 Australian Law Journal 53, and the discussion of ‘oppression’ at 55–7. See, further, M Weinberg, ‘Confessions and Admissions under the UEL’ in Andrew Roberts and Jeremy Gans (eds), Critical Perspectives on the Uniform Evidence Law (The Federation Press, 2017) 176, 186–7.

In our view, not only was it open to his Honour to exclude the evidence of the police interviews under that section, he was clearly correct to do so. The unfairness was palpable. On his Honour’s unchallenged findings, both respondents believed they were likely to be imprisoned unless they cooperated with police. Because of the pressure applied to them by the casino’s officials, his Honour found, they did not believe they had a right to silence when questioned by police, notwithstanding the administration of the required caution.

In that regard, we note there was no notice of contention, or equivalent thereof, challenging the judge’s finding that s 84 of the Evidence Act was not engaged. Nor was it submitted in argument on behalf of the respondents that that finding was erroneous. Having regard to the fact that the term ‘oppressive conduct’, in that section, has been construed as extending to ‘mental and psychological pressure’, it might be thought that the judge could have excluded the evidence pursuant to that section without having to rely upon s 90.[35]
[35]See, generally, Higgins v The Queen [2007] NSWCCA 56.

It has been held that the exercise of authority and power in a ‘burdensome, harsh, and wrongful manner’ can constitute oppressive conduct.[36] Importantly, for the purposes of s 84, it is irrelevant whether the conduct in question was engaged in by a police officer, an investigating official, or any third party. The section is not limited to any category of person. The term ‘influenced by’ imposes a fairly minimal level of causation. Importantly, the onus rests upon the prosecution to demonstrate that the conduct referred to did not have any causal effect on the making of the admission.[37] These matters were drawn to the attention of the judge by way of written submissions. However, as has been seen, his Honour was not persuaded by those submissions. Without saying anything definitive about the matter, there was considerable force in the argument that s 84, on its own, was sufficient to warrant the exclusion of this evidence.
[36]See Sumpton [2014] NSWSC 1432.
[37]See, generally, Odgers, Uniform Evidence Law (Thomson Reuters, 14^th ed, 2019), 620–1.

Finally, with regard to s 137, we need not do more than adopt and reiterate the applicant’s submissions on this point, as set out in [95].

Conclusion

For the reasons set out above, none of the proposed grounds of appeal warrants the grant of leave to appeal. The order of the Court will be that leave to appeal is refused.

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[2020] VSCA 190

30 July 2020