Em v R

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Em v Regina [2006] NSWCCA 336

FILE NUMBER(S):
2006/382 CCAP

HEARING DATE(S): 19 June 2006

DECISION DATE: 03/11/2006

PARTIES:
Sophear Em v Regina

JUDGMENT OF: Giles JA Grove J Hidden J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2003/89, 2003/24

LOWER COURT JUDICIAL OFFICER: James J

COUNSEL:
S Odgers SC - Appellant
D Frearson SC - Respondent Crown

SOLICITORS:
S O'Connor - Appellant
S Kavanagh - Solicitor for Public Prosecutions

CATCHWORDS:
EVIDENCE - exclusion of admission if unfair to use it (Evidence Act s 90) - offender aware not obliged to speak to police - believed conversation with police could not be used against him if not recorded - unaware that conversation was being recorded - police not responsible for erroneous belief - even if police aware of erroneous belief, not unfair to use admissions - DIRECTIONS - that admissions were unreliable squarely raised by defence case - no need for warning that admissions may not have been reliable - SENTENCING - whether sentences manifestly excessive - or error in failing to find special circumstances - or in degree of cumulation of sentences - or flawed on parity grounds - on facts, no error in these respects.

LEGISLATION CITED:
Criminal Appeal Act 1912, s 5F
Evidence Act 1995, ss 85,90, 138

DECISION:
(1) In the conviction appeal, appeal dismissed; (2) In the sentence appeal, grant leave to appeal but dismiss the appeal.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/382 CCAP
SC 2003/89
SC 2003/24
GILES JA
GROVE J
HIDDEN J
Friday 3 November 2006

Sophear EM v REGINA

Judgment

GILES JA: The appellant was charged on indictment with three offences in relation to a home invasion on 7 January 2002 at Cecil Hills, the home of the Logozzo family, and five offences in relation to a home invasion on 17 January 2002 at West Hoxton, the home of the Kress family. The three Logozzo offences were murdering Joseph Logozzo, the aggravated assault of Joseph Logozzo with intent to rob, and firing a firearm with disregard for the safety of Marianne Logozzo. The five Kress offences were the aggravated robberies of Michael, Beverley, Alyson and Jonathon Kress and Ramzi Tamer.
A trial before Shaw J and a jury commenced on 1 September 2003. The Crown case on the Logozzo offences relied substantially on admissions made by the appellant in a conversation with police officers on 15 May 2002. After a lengthy hearing on the voir dire, Shaw J ruled that evidence of the conversation was not admissible. The Crown brought an interlocutory appeal under s 5F of the Criminal Appeal Act 1912, and the trial was terminated. On 12 December 2003 this Court upheld the appeal: R v Sophear Em [2003] NSWCCA 374. The Court did not, however, rule that evidence of the conversation was admissible. It left it to the trial judge to make further findings of fact and, depending upon what facts were found, to exercise a discretion to admit or reject the evidence.
A second trial commenced before James J and a jury on 18 October 2004. A further hearing on the voir dire was conducted, on the transcript of the oral evidence given in the voir dire hearing before Shaw J and the exhibits then admitted and without further evidence. On 27 October 2004 James J ruled that evidence of the conversation of 15 May 2002 was admissible in part, to a point at p 25 of the transcript of the conversation but not thereafter.
On 3 November 2004 the appellant entered pleas of guilty in respect of the Kress offences. On 26 November 2004 he was found guilty by the jury in relation to the Logozzo offences.
On 23 March 2005 the appellant was sentenced -
(a)on the offence of firing a firearm with disregard for the safety of Marianne Logozzo, to imprisonment for 2 years commencing on 20 May 2002 and expiring on 19 May 2004;
(b)on each of the Kress offences, to imprisonment for 12 years commencing on 20 May 2003 and expiring on 19 May 2015;
(c)on the offence of aggravated assault of Joseph Logozzo with intent to rob, to imprisonment for 10 years commencing on 20 May 2013 and expiring on 19 May 2023; and
(d)on the offence of murdering Joseph Logozzo, to imprisonment for 25 years commencing on 20 May 2013 and expiring on 19 May 2038, with a non-parole period of 16 years commencing on 20 May 2013 and expiring on 19 May 2029.
The appellant appealed against the convictions for the Logozzo offences and applied for leave to appeal against the sentences for the Kress offences.
The grounds of appeal against conviction were -
(1)The trial judge erred in not excluding the admissions made on 15 May 2002.
(2)A miscarriage of justice was caused by the failure of the trial judge to warn the jury that admissions made by the appellant on 15 May 2002 may be unreliable because he believed that anything he said could not be used against him.
The grounds of appeal against sentence were -
(1)The sentences imposed in relation to the Kress offences are manifestly excessive.
(2)The sentencing judge erred in failing to make a finding of “special circumstances” in relation to the Kress offences.
(3)The sentencing judge erred in the degree of cumulation of sentence imposed in relation to the Logozzo offences.
(4)The appellant has a legitimate grievance arising from disparity of sentence with Mao Vann.
Facts of the offences
Only a brief outline is necessary with respect to the Logozzo offences.
Mr and Mrs Logozzo returned home in the early hours of 7 January 2002. When at the front door of their home, they were approached by two men wearing dark clothes, balaclavas and ski goggles. One man held a rifle, the other man held a handgun. The man with the rifle said, “Do as we say and nobody will get hurt. Keep it quiet and nobody will get hurt.”
One of the men told the Logozzos to go into the house, and when in the house to lie on the floor. They knelt on the floor in the lounge, and told the men “Just tell us – take whatever you want and go and we’ll give you whatever you want”.
Other persons sleeping upstairs were wakened by the man with the rifle, and were ordered downstairs. The man with the handgun told the first of them to lie on the floor with his hands behind his head, and the other persons sat or lay on the floor next to him. The man with the rifle told Mr Logozzo to “show me what you have, what you have got”, and the two of them went up the stairs. There was a scuffle, and they tumbled down the stairs. The man with the handgun, who had been standing in the lounge, fired a shot which struck Mr Logozzo in the chest. Mrs Logozzo had got up to help Mr Logozzo, and the man with the handgun fired a second shot which struck her in the hand. The two men ran from the house. Mr Logozzo subsequently died.
On the Crown case, the appellant was the man with the handgun. Even if he was not the man with the handgun, the appellant could be found guilty of the offences as constructive murder and in accordance with principles of joint criminal enterprise and common purpose. In his findings for sentencing, James J was not satisfied beyond reasonable doubt that he was the man with the handgun.
At the second trial the appellant made admissions as to the Kress offences, and James J made findings of fact in accordance with the admissions. The admissions were -
“1.Late in the evening of 17 January 2002, Michael Kress and his wife Beverly Kress, with their daughter Alyson aged 17 years, their son Jonathon aged 16 years and Alyson’s boyfriend Ramzi Tamer were at their home at 134 Greenway Drive, West Hoxton.
2.At or about 11.30pm, Michael Kress opened his garage and stood at the open door smoking a cigarette. As he stood there, a white model Ford Laser stopped on the street directly opposite his driveway.
3.The Ford Laser sedan, registered number UKK-412, was previously stolen some time after 9.00pm on 16 January 2002 from Chertsey Avenue, Bankstown.
4.A man, carrying a pistol, ran up the driveway from the vehicle and said:
‘Get in quick, don’t shout, if you shout, I’ll shoot you’.
5.Two further men ran up behind the first.
6.Michael Kress described one of these men as holding an army style rifle and the other as holding a knife.
7.He describes all as dressed in dark clothing, balaclavas, and two were wearing ski goggles.
8.The three men forced Michael Kress into the garage and into his home by way of an internal doorway. As they did so, the man with the pistol placed the weapon against Michael Kress’s right temple and said:
‘Don’t look back. Don’t look at me. Don’t look at anybody’
9.Beverly Kress was standing at the internal door.
10.The man with the pistol said to her:
‘Go inside, be quiet and nobody will get hurt’.
11.Beverly Kress walked into the bar area of the house.
12.Once inside the house, in the bar area, the man with the pistol told Michael Kress to lie down on the tiled floor face first and to put his hands behind his back. Michael Kress did as he was told. Beverly Kress remained standing, and saw the other two men, one of whom was armed with a knife and the other with a rifle.
13.The man with the knife had black plastic ties in his hand and a light silver grey coloured sports bag with a centre zipper and two handles. The bag was square or rectangular and made of shiny material.
14.The man with the handgun asked Beverly Kress if there was anyone else in the house. She replied, ‘my children and my daughter’s boyfriend’. The man with the handgun told her to go up and get them.
15.Beverly Kress walked up the stairs followed by the man with the pistol and the man with the knife. The man with the rifle remained behind, guarding Michael Kress.
16.Beverly Kress went to her daughter Alyson’s bedroom and told her and her boyfriend Ramzi Tamer to come downstairs and do as they were told. Alyson Kress and Ramzi Tamer went to the downstairs bar area where they were made to lie face down on the floor.
17.Beverly Kress then went into the bathroom where her son Jonathon was having a shower and told him to come downstairs. The man with the pistol stood behind Beverly Kress with the gun pointed at her as she did this.
18.Beverly Kress returned downstairs.
19.Jonathon Kress dressed and was then forced downstairs to the same area. He was made to lie on the floor.
20.The man with the handgun asked, ‘where’s the money? If you do what we say, no one will get hurt’. Beverly Kress took money out of her bag and handed it to him He looked at the remaining items in the bag and discarded them. Beverly Kress was made to lie face down on the floor.
21.Everyone was told to remove their jewellery, and thereafter their hands were bound behind their backs using black plastic cable ties.
22.As this was happening, one of the men was searching the upstairs area of the house.
23.The men stole from this family mobile telephones, jewellery, a watch, wallets and their contents and bottles of spirits.
24.One of the men produced a roll of silver ducting tape. He cut numerous pieces off with a knife and stuck them to the stairs. Each of the occupants then had a piece of tape placed over their mouth.
25.The man with the handgun then told the victims to keep their heads on the ground for another ten minutes and not to call the police, otherwise they would come back and kill them. All three men then left the premises.
26.A short time later some of the victims were able to free themselves and raise the alarm.
27.On 18 January 2002 the 1984 white GL Ford Laser UKK-412 was recovered from where it had been abandoned on Old Cowpasture Road, West Hoxton”.
The judge did not accept the appellant’s evidence that he had participated in the Kress offences after travelling to the vicinity of the Kress home in a car with some friends, not knowing where he was going or what was going to happen, that he had got into the car in his underwear, that the clothing he had worn during the robbery had been provided to him in the car by his friends, and that in carrying out the robberies he had merely done what he had been told to do by his friends.
Background to the conversation of 15 May 2002
On 16 February 2002 police executed a search warrant at premises at Canley Vale in connection with an unrelated shooting at a cinema on 8 February 2002. The appellant and a friend, Mao Vann, were residing at the premises. Drugs were found in the appellant’s possession, and he was arrested and taken to Fairfield Police Station. He refused to be interviewed, was charged and was released from custody.
On 22 February 2002, and having been cautioned, the appellant voluntarily participated in an electronically recorded interview about the shooting on 8 February 2002.
In the execution of the search warrant on 16 February 2002 there were found items stolen in the Kress robberies, and black plastic cable ties similar to those used in the robberies and a balaclava. On 24 April 2002 police executed a search warrant at premises at Bass Hill, and in a bedroom occupied by the appellant found a sports bag containing a number of items which on the Crown case were linked with the Kress robberies, including black clothing, ski goggles, a balaclava, two pairs of gloves, cable ties, duct tape and a knife. Two other friends of the appellant were also occupying the premises, Arno Do and Liane Tran.
On the execution of the search warrant on 24 April 2002 the appellant was cautioned, and was taken to Bankstown Police Station. He was formally entered into custody, and was given a document setting out his rights while in custody, including -
“You do not have to do anything while in police custody. This does not apply if the law says you have to answer questions or do something they ask you to do. Anything you do say or do may be used in evidence.”
After some time the appellant was released from custody without being charged with any offence, but while at the police station there was a conversation between the appellant and Detectives Abdy and McLean. The detectives took the appellant to an interview room for the purposes of conducting an electronically recorded interview concerning the Kress robberies, telling him that he did not have to say or do anything unless he wished “as anything you say or do may be recorded and later given in evidence at court”. The appellant refused to allow the conversation to be recorded in any way, but at a later time the detectives prepared a record of it.
James J ruled that the record of the conversation on 24 April 2002 was inadmissible in the trial of the appellant, but what occurred is material to the admissibility of the conversation of 15 May 2002 and some of what was said came into the evidence in connection with that conversation.
The conversation began with the giving of the caution, and -
Abdy:The questions that I ask you I want to record on this video and audio machine and I’ll give you a copy of the interview.
Appellant:I’m not going to say anything to you, if you turn that on. I don’t want to look like a dickhead.
Abdy: I can turn the audio tapes on and leave the video off If you want?
Appellant:No, nothing.
Abdy:Well how about I turn the tapes on and you state the objection on them.
Appellant:I won’t say a word if you turn it on.
Abdy:What about we write down what you say.
AppellantNo.
In the course of the conversation about the Kress robberies the detectives made known their belief that the appellant was involved because of the items found in his bedroom at Bass Hill, and that they wanted to know where the gun used in the Kress robberies, which the police believed was an SKS rifle, was. The record prepared by the detectives included -
Abdy: If you won’t be interviewed on the tape that’s fine. Well just speak to you. But we need the gun back so what do you think?
Appellant: If I talk to you, I don’t want anything recorded on the tapes.
Abdy: It’s better that we record what we say, it’ll be just like a conversation, the same as the one we are having now.
Appellant: No tapes. But what do you want to know, like where is the gun and stuff?
Abdy: Yeah that would be a good start. We are going to leave the room and we’ll be back in a couple of minutes.
After the detectives returned to the interview room the following took place:
Abdy: Well Sophear what is it going to be, are you going to talk to us or not?
Appellant: Not if it’s on the tapes.
McLean: There I’ve turned them off (turned ERISP machine off), even our phones are off.
Appellant: What about a wire, like in the movies.
Abdy: I’m not going to sit here naked with you mate, you’ll have to trust us. We have been up front with you this morning and we haven’t tried to trick you.
Appellant: No.
The appellant then told the police that he had sold the gun, which he said was “a 32”, silver in colour, to a man named Le whom he thought was 5T, and made admissions about involvement in the Kress robberies.
The detectives left the interview room, and on returning said -
Abdy: Sophear, there is one other thing that we want to speak to you about, so just listen to what we have to say. You don’t have to say anything unless you want to. But whatever you say or do may be recorded and later given in evidence at court.
Appellant: I don’t want anything recorded.
Abdy: It is the same as before. Nothing in this room is turned on. Mick [McLean] is actually from the Homicide Unit working at Green Valley with me and other police. We are investigating the murder of Joe Logozzo.
Appellant: I know nothing.
The detectives put to the appellant the substance of what had happened in the Logozzo home invasion, and that it was similar to the Kress home invasion and “[w]e know you had a 32 pistol because you told us that to [sic] and this is the same type of gun as was used to kill Joe Logozzo”. The appellant’s responses were to the effect that he did not know what to do, and he ultimately requested that he be allowed to speak to a solicitor.
When the appellant returned to the interview room, after contacting a solicitor but failing to have him attend the police station, the following took place:
Abdy: What is it going to be mate. How about I just put these tapes in and you tell us whatever you want.
Appellant: No.
Abdy: What are you afraid of?
Appellant: I don’t want to look like a dickhead.
Abdy: I told you before, I can leave the video out if you want.
Appellant: No tapes.
Abdy: We can record the conversation in our notebook and get you to sign it if you are happy with what has been written.
Appellant: No. I don’t want to sign anything or have anything written down.
Abdy: Sophear we can’t sit here all day. We are giving you a chance to tell us your side of the story. If you don’t, all we have is the statements from other people in the house. If it was an accident, tell us, if you didn’t shoot him tell us that.
Appellant: I’m not denying it, I just don’t want to talk about it just now, I have too much going on in my head.
Abdy: Mate we need to know what happened, for all we know Liane drove you there in her car.
Appellant: No she didn’t, she was working that night.
Abdy: Well tell us that on the tapes. We need to know.
Appellant: I will say at court what I did.
Abdy: Alright I’ll take you back to the charge room while we make further enquiries then.
An authorised listening device was installed in the Bass Hill premises. After his release from custody, late on 24 April 2002 the appellant was heard saying, “They asked me about a red car. I said ‘I don’t have a red car’. They wanted a confession. I said – off the record – ‘look, I’ll talk to you but’ – “.
On 30 April 2002 Detectives Abdy and McLean went to the Bass Hill premises. Detective Abdy asked the appellant whether he had been to see a solicitor. The appellant said ‘No”, and Detective McLean said, “It might be a good idea”. Detective McLean asked the appellant whether, if the police brought photographs of guns, the appellant would look at the photographs. The appellant said, “I’ll have a look, but I might not point anything out.” Detective Abdy said that he and Detective McLean would probably be back in a few days.

Warrants were issued authorising each of Detectives Abdy and McLean to be fitted with a listening device to record conversations with the appellant.
On 13 May 2002 the detectives went to the Bass Hill premises, each wearing a covert listening device. They spoke to another occupant, who said that the appellant was not at home. Detective Abdy said, “We have got to organise time to speak to him. We are not going to arrest him. We are not going to take him to the police station.” The detectives gave evidence in the voir dire enquiry that they hoped and expected that the other occupant would pass on to the appellant what they had said to him.
The conversation of 15 May 2002
On 15 May 2002 the detectives, each wearing a covert listening device, went again to the Bass Hill premises. The appellant answered the door, wearing his night attire. Detective Abdy said they wanted to talk to the appellant again, the appellant asked “Where at?”, and Detective Abdy said, “No we are not going to the police station or nothing. We’ve just got to show you some photos and talk to you for some five or ten minutes. We don’t want to do it here, OK?”
In order to appreciate the appellant’s submissions, it is necessary to set out portions of the ensuing conversation at some length. As James J noted at his [40], “[m]uch depends on the general tenor of the conversation and on the context in which a number of things were said”. I have listened to a tape of the recording of the conversation.
The appellant dressed and got into the police vehicle. Detective Abdy said to him, “Mate we are just gunna go and have a talk to you, I think there’s a park or something up here. We are not going to take you to the police station or anything. So you know you’re not under arrest, OK? As I told you before, we are going to come back and talk to you. Remember we said we might come back and show you some photos of some guns?”
The detectives drove to a park. During the drive, which took about five minutes, Detective Abdy reminded the respondent of the last occasion when he was taken to the police station and then said, “Remember they gave you a piece of paper that said you didn’t have to say anything to the police?” The respondent replied, “Yeah, I know that”. The conversation continued:
Abdy: You know that?
McLean: And we told you that, remember that?
Abdy: And the same goes again. You don’t have to say anything to the police if you don’t want to, O.K.?
Appellant: Just making you guys happy.
Abdy: You’re just making us happy. No, mate, we only want to know, we only want to know the truth. Don’t say things just to make us happy.
McLean: You understand that though, don’t you?
Appellant: Yeah.
McLean: You know. Mate, you don’t have to talk to us if you don’t want to.
At the park the detectives and the appellant sat on a bench, and Detective Abdy said, “Now, what are going to do about this? How are we going to get this cleared up?” The appellant said “Huh” and Detective Abdy said, “How are we going to get this cleared up?” We are not just gunna go away, are we. Hey? Remember you spoke to us at Bankstown?”
There was discussion about the Kress robberies, in which the appellant made clear that he did not want to talk about them.
The appellant was shown some photographs of guns and asked to “see if you can pick out the gun similar to the one that you said that you had”. The conversation included that the appellant had told the police at Bankstown Police Station the colour of the “pistol” he used to own, and -
McLeanYeah. Well, you can see what we’ve brought along today. Is that colour consistent with what you told us?
AppellantI told you guys already, you guys know …
McLeanMate, you know yourself that day that nothing was recorded, you know that, so we’re trying to remember to the best of our ability.
AbdyMate, we didn’t even take you to a police station, it’s not hard, I mean we spoke to you once before and you wanted to talk to us, we’re not, we’re not trying to trick you or anything.
McLeanWe told you on the way down in the car, right, it’s your right, if you don’t want to talk to us you don’t have to, you know that?
AppellantI’m talking to you.
McLeanYeah. Well, that’s what we want, is just a little bit of cooperation here.
Appellant Yeah, I told you it, you guys know. I know you won’t forget.
AbdyWell, is it like that? Mate, there’s a stack of guns in here; which one is it like? Can you help us out with that?
AppellantI don’t know.
The detectives told the appellant that Arno had told them things about the gun, causing the appellant to say, “I know how you guys work”, and -
AbdyYou know how we work? How’s that?
AppellantYou try to con us …
AbdyI’m not trying to, mate, I’m not trying to con you, we told you before, we’re investigating a home invasion and a murder.
This was the first reference in the conversation to investigation of a murder. The conversation continued -
AppellantYeah, I know.
AbdyAnd I told you they’re pretty serious. Would you agree that?
AppellantYeah.
AbdyYeah, and you told us you did the home invasion. You remember you told us that? Hey? Mate, and you said you wanted to speak to us about a murder, you wanted to talk about the murder but you didn’t want to talk to us, you didn’t want it recorded at the police station. Do you remember talking to us about that?
Appellant(NO AUDIBLE REPLY)
AbdyMate, you said you were going to tell your side of the story in court. You said all that to us, didn’t you?
McLeanI think you said, I’m not gunna deny it, but I don’t want to talk to you about to [sic] right now, or something like that anyway, you know, you said, My head’s spinning, or something like that.
AppellantI not going to deny it I said, that I didn’t do it or I’m not going to deny it.
McLeanYou know what you said.
AppellantYeah, I know what I said.
McLeanWell, what was it?
AppellantI’m not going to say that I did it and I am not gunna deny it.
AbdyWhat would that, honestly, if you were us what would you think we believe then if you said that to us?
AppellantI know what you guys believe.
McLeanSorry?
AppellantI know what you guys believe.
AbdyWhat’s that, mate.
AppellantYou guys know that I did it.
AbdyWe know what you did what, you did the home invasion or you did the murder?
AppellantThat I did both?
AbdyWell, did you?
McLeanWell, mate, you told us at the police station that you did the home invasion, all right, and what I just said to you then about the murder …
Appellant …
AbdyWell, mate, did you
AppellantI don’t want to talk about that?
AbdyMate, …
AppellantYou said you guys would show me pictures.
AbdyWe’ll show you some pictures but …
AppellantYeah, that’s what you said you were going to do.
AbdyO.K.
AppellantShow me some pictures.
AbdyO.K. But we still need to speak to you about this other stuff, don’t we? Mate, what are we gunna do? How are we gunna, how are we gunna get our lives back to normal?
AppellantMy life ain’t gunna go back to normal.
AbdyBeg your pardon? Our lives aren’t gunna get …
AppellantMy life, my life won’t get back to normal.
AbdyYeah, well, that’s what we’ve got to do, we’ve got to work out how you can start your new life now whatever, whatever that is. What do you think its gunna be?
AppellantGaol.
McLeanWhy?
AppellantI don’t know.
McLeanHuh?
AbdyWhat’s Mao told you to say?
AppellantNothing, he never told me to say nothing.
AbdySophear, we haven’t tried to trick you once, have we? We’ve brought you to a God damn park. We’re not, we haven’t got you in the police station.
McLeanMate, you know you’re not under arrest. We told you that as soon as you got in the car. Right. We told you that you don’t have to talk to us if you don’t want to; you know that, all right. We want to try and clear up a few things here.
AbdyWe want to try and eliminate who else was involved in it. All right. We’ll give you some names and you tell us if they’re involved in it. Arno?
AppellantNo.
AbdyLiane?
AppellantNo.
AbdyWell, is Arno involved in the murder?
AppellantNo.
AbdyDid he drive youse out there?
AppellantHe can’t drive. He never drive.
AbdyWell, who drove out there then? You didn’t walk there. Who drove youse out there?
AppellantWhere?
AbdyAt the, the murder?
McLeanOut at Cecil Hills.
AppellantI don’t know … you could say I drove …
McLeanSorry?
AppellantYou can just say that I drove …
McLeanWell, no, we’re not saying you drove, we just want the truth as to who drove. Mate, you know that. Like Brad [Abdy] said, we’re not here about tricking anybody.
AbdyBut we need, but we need to know who’s involved.
…
AbdyMate, but we need to know who’s involved and who’s not involved, so people aren’t getting spoken to by police every five minutes when they’ve got nothing to do with it really.
McLeanHuh?
AbdyHave they?
AppellantYou guys know that I am involved, right, you think that I am involved, Arno and Liane are not involved.
AbdyWell, Mao?
AppellantNo.
AbdyMao’s not involved? So what’s your involvement then, did you shoot the bloke?
AppellantNo
AbdyWhat did you do?
AppellantNothing. I told you guys everything already.
Later in the conversation, after some reference to the Kress robberies -
AbdyAlright, Sophear, just help us out, mate. The, back to where the bloke got shot, what were you hoping to get from that house?
AppellantHuh?
AbdyWhat were you hoping to get from the house?
AppellantI don’t know.
AbdyWhy did you pick that house for, mate? These people are nervous wrecks. Why did you pick that house for?
AppellantI don’t know.
AbdyHave you been past there before?
AppellantNo
AbdyWas that the first time?
AppellantProbably.
McLeanWell, who picked it out? Did you pick it out or did somebody else pick it out?
AppellantI didn’t pick it out.
McLeanHey?
AppellantI didn’t pick it out.
McLeanWell, so who picked it out then?
AppellantCan’t remember. Which, which piece did Arno show you.
AbdyPiece, which gun?
AppellantYeah, Did you say that Arno …
AbdyThis one here.
McLeanNumber eight.
AbdyNumber eight …
AppellantI don’t know … say, man.
McLeanYou told us, remember you told us you bought this gun off this bloke, right, and you sold it to Mr 5T at Cabramatta?
AppellantYeah.
McLeanO.K. Well, is that the same thing?
AppellantIt looks like it.
McLeanDo you know what sort it is or anything?
Appellant… looks like that.
McLeanWell, look at the difference.
AppellantI already looked at them. I don’t know it’s too long ago …
AbdyAnd that’s the same gun you took to the house where the bloke was shot?
AppellantIs it?
AbdyI don’t know, is it? You tell me.
AppellantI don’t know.
AbdyWell, is it? How many guns did you take to the house where the bloke got shot?
AppellantCan’t remember.
McLeanHow many guns have you owned? How many of those silver pistols, like you told us about, have you owned?
Appellant(NO AUDIBLE REPLY)
McLeanHey? One. Well, so, is it, if you only own one …
AppellantYeah
McLean… so the gun that you sold to this bloke at, at this, this Asian fellow at Cabramatta who is a 5T bloke …
AppellantYeah.
McLean… that you told us about, is that the same gun you took to that house in …
AppellantWhat, that one?
McLeanIf it is that one. You said you weren’t sure.
AppellantNot sure.
McLeanNumber eight. But what I’m trying …
Appellant It could be that one, it could be that one.
McLeanWell, which other one do you reckons close ot it? You flick through them.
Appellant … that.
McLeanThat one.
AppellantThey’re all the same …
McLeanYes, but what I’m trying, do you understand what I’m trying to say?
AppellantYeah.
McLeanRight. So if you’re saying you’ve only ever owned one gun, is that the same gun you took to that house where that bloke was shot?
AppellantWhat those two.
McLeanNo, forget about that. You said you sold a gun to a bloke at Cabramatta, right, we all agree on that, O.K. Is that the same gun that was taken to that house where the bloke was shot?
AppellantOh.
McLean Huh?
AppellantHuh?
McLeanSo there’s no other guns? Is that what we’re saying, there’s one gun only?
AppellantNo there’s no other guns.
McLeanThat’s all we’re trying to sort out, all right?
AppellantIf there’s more guns involved?
AbdyYeah, exactly. How many guns were involved? How many shots were fired in the house? How many shots were fired in the house?
AppellantYou guys should know.
AbdyWell, we don’t know.
AppellantYou have like forensic.
AbdyYeah, but sometimes you don’t get all the bullets.
Appellant… shells and shit?
AbdyYeah, exactly. So we need to know how many shots were fired in the house.
AppellantHow many do you think was fired?
AbdyWell, we don’t know, that’s why we need your help, mate.
Appellant… you told me the other time …
Abdy… we’ve got two. Was there only two fired?
McLeanBecause sometimes they don’t always eject out of the gun, who knows?
AppellantOh, might have jammed.
McLeanLike Brad said, we’ve got two casings.
AbdyHow many, how many shots were fired in the house?
AppellantCan’t remember.
AbdyHuh?
AppellantCan’t remember.
AbdyDon’t you remember much about that night?
Appellant(NO AUDIBLE REPLY)
AbdyWhy’s that?
AppellantI don’t know.
AbdyAre you trying to blank it out?
AppellantProbably.
AbdyBut did you, did you and Mao go back and speak to anybody about it?
AppellantNo. I haven’t spoken to no one about nothin’
AbdyWhat about, only us?
Appellant(NO AUDIBLE REPLY)
AbdyThe thing we’re getting at is, after Mao shot that bloke at Liverpool, he went back and he told you and other people about it a couple of days later, didn’t he?
AppellantYep.
AbdyWell, that’s what they’re getting’ trouble for, Arno and those blokes, mate, did you speak to anybody about what happened?
AppellantI don’t talk to no one about nothin’
AbdyWhat about to Mao?
AppellantWhat?
AbdyDid you talk to Mao about it?
AppellantAbout what?
AbdyAbout the, what happened at Cecil Hills
AppellantMe?
AbdyYeah.
McLeanNever spoke to him about it since?
Appellant(NO AUDIBLE REPLY)
McLeanNo. Mate, what we’re trying to work out is, right, who, who shot this bloke, all right, and, right, if it’s the case that you shot him or if it’s the case that Mao shot him, that’s what we want to know, and we want to know, right, what, what your intention was, right. If you intended to kill somebody, well, or if it was an accident, that’s what you need to tell us, all right, that’s what I’m interested in and we’re interested in. Do you understand that?
Appellant(NO AUDIBLE REPLY)
McLeanWell, which one is it?
AppellantI don’t want to talk about that?
AbdyMate, when are you, when are you going to talk about it?
Appellant(NO AUDIBLE REPLY)
AbdyWho else can you talk about it, apart from us?
AppellantI don’t talk about it to no one.
AbdyHow come?
AppellantWhy would I want to talk to someone about it?
AbdyIt’s, it’s obviously playing on your mind. Is that right?
AppellantYeah. I’m the type of person, I keep things to myself.
There then occurred the part of the conversation which James J held made what followed inadmissible, namely -
AbdyMaybe 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 you’re gunna have to want to talk about it, aren’t you? You can’t keep it in forever, imagine was [sic] it’s going to be like. When you, you’re sitting here nodding your head, so I’m assuming you’re meaning it.
AppellantYeah, I mean, yes.
The conviction appeal – Ground 1
Before James J, it was submitted on behalf of the appellant that the conversation of 15 May 2002 was inadmissible and should be excluded by reason of s 138 of the Evidence Act 1995 (“the Act”), s 85 of the Act or s 90 of the Act. On appeal, the appellant relied only on s 90 of the Act. It provides -
“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 a defendant to use the evidence.”
(a) The decision on the interlocutory appeal
James J came to his ruling with guidance from the earlier decision of this Court on the interlocutory appeal. The Court there held that Shaw J’s discretion under s 90 had miscarried because he had taken into account irrelevant considerations. The reasons of Howie J, with whom Ipp JA and Hulme J agreed, went further. His Honour said -
“Did the police conduct produce unfairness?
125 Although it should be evident by now that I would allow the appeal and quash the order made by Shaw J, I believe I should say something about what is the crucial issue in this matter, notwithstanding that it may be necessary for a judge to consider the issue afresh. It was fully argued by the parties on the hearing of the appeal and I have formed a firm view about it.
126 Understandably, considerable reliance has been placed by counsel for the respondent on his Honour’s finding that the police knew that the respondent would probably not have made any admissions, if he had known that the second conversation was being recorded. It was submitted that this fact, together with the other matters listed in paragraph [81] of his judgment, set out above, justified his Honour in finding that it would be unfair to admit the second conversation.
127 In my opinion it is too simplistic to reason that, because the respondent may not have made admissions had he known his conversation was being recorded, it was unfair to use the admissions against him. The fact that the respondent was tricked into believing that the conversation was not being recorded might enliven the discretion to reject the evidence, but in my view a relevant factor in deciding whether it would be unfair to admit the evidence is the reason why the respondent would not have spoken had he known the true situation. This is a matter touched on by Shaw J and those arguing the matter before him, but was not apparently examined in any depth.
128 As his Honour accepted in paragraph [80] of his judgment set out above, it was not unfair to admit the evidence simply because it was being surreptitiously recorded by police. Nor, in my view, was it necessarily unfair to admit the conversation simply because the respondent would not have spoken had he known that his conversation was being recorded. For example, if his objection to the police recording the conversation was that he did not want the police to have a reliable record of what he was prepared to say to them, I find it difficult to understand how it would be unfair to the respondent to have admitted against him a reliable account of what he freely and voluntarily said to the police.
129 I would see nothing improper, for example, in the police covertly recording an interview with a suspect at a police station, where the suspect was prepared to answer questions but refused to have the interview electronically recorded. In such a situation it would not be unfair to an accused to admit the evidence of the recording, even though, if the suspect had known of the recording, he would not have answered the police questions. It would be less unfair than if the Crown were to lead evidence of the conversation based upon a record made by police some time after the conversation from their memory of what was said during it.
130 It is on the issue of what the accused was led to believe by the police on 15 May that the first conversation assumes some importance. From the passages of that conversation, which I have set out earlier in this judgment, it is apparent that the respondent was generally prepared to answer questions about the Kress robbery provided that what he said was not recorded in any way. The only reason he gave for not wanting his answers recorded was that he did not want to “look like a dickhead”. He had been informed on at least two occasions that what he said might be recorded and might be used in evidence at court.
131 From what the respondent is heard to say as a result of the use of a listening device in the Bass Hill premises and referred to in paragraph [28] above, it appears that the respondent thought that what he had said to the police was “off the record”; that is in contradistinction to “the confessions” that the police wanted. If this statement is taken to mean that the respondent believed that what he had said to the police in the first conversation would not be used as evidence against him, there was nothing that the police had said or done to induce that belief. In any event, so far as the investigating police were concerned, that belief was well justified. According to their evidence on the voir dire, Detectives Abdy and McLean did not believe that his statements would be admitted into evidence because they were not electronically recorded and that was the reason that they did not arrest him for the Kress robbery on 24 April.
132 It may also have been the fact that on 15 May the respondent believed that anything he said to the police was “off the record” and could not be used as evidence against him because he understood it was not being recorded. But if that were his belief, again the police had, at least at the commencement of the conversation, done nothing intentionally or recklessly to induce it. At worst, they simply tricked the respondent into believing that they were not recording the conversation.
133 In my opinion there is a very significant difference, for the purposes of the admission of evidence of confessional statements, between, on the one hand, subterfuge by the police which is aimed merely at inducing a suspect to believe that what he said to them was not being recorded, and, on the other hand, subterfuge which is aimed at inducing in a suspect the belief that what he said would not be used in evidence against him. I do not believe that conduct of the first type necessarily requires that the admissions obtained as a result of the subterfuge be rejected under s 90 or otherwise. On the other hand conduct of the second type would clearly enliven the discretion to reject the evidence under s 90 and it may be the case that, generally speaking, any admission resulting from such a representation would be rejected in the exercise of discretion.
134 In the present case I do not believe that there was any evidence before Shaw J from which it could be inferred that, before the commencement of the second conversation, the police set out to cause the respondent to believe that anything said to them by him would be “off the record” and would not, therefore, be used in evidence against him. Subject to any finding of other relevant misconduct by the police during the course of the interview, I am of the opinion that it would not be unfair to admit evidence of the second conversation simply because the police had tricked the respondent into believing that they were not recording what he was saying to them, and, therefore, to speak when he otherwise would not have done so.
135 However, it may be that at a point in the conversation, when the respondent was being reticent in supplying the information that the police were attempting to obtain, the police did at least attempt to induce in the respondent a belief that what was being said would remain between the three of them and would not be used in evidence against him. That point may have arisen during that part of the conversation set out in paragraph [38] above, and in particular when Detective Abdy said:
‘Maybe you might feel better if you tell us. It's not as though we are 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. When you, you’re sitting there nodding your head, so I'm assuming that you mean yes.’
136 It would be open to a trial judge to find that, in this passage at least, the Detective was suggesting to the respondent that if, to use the vernacular, he got it off his chest, whatever he said would not be used to make out a case against him. If such a finding were made, the discretion under s 90 might be exercised to reject evidence of the conversation from that point on depending upon an assessment of the unfairness, if any, arising from what was said by the respondent thereafter.”
(b) The decision of James J

Early in the relevant portion of his reasons the judge noted the discussion of the common law discretion to exclude evidence on the basis of unfairness in The Queen v Swaffield (1997) 192 CLR 159, citing the passages from the joint judgment of Toohey, Gaudron and Gummow JJ at [91] and [54] -
“[91]… In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted.”
“[54]Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted. And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred.”
His Honour noted at [103] that counsel for the Crown “accepted that a critical issue in the present inquiry was the issue identified in paragraph 91 of the joint judgment in Swaffield, that is the extent to which the accused’s freedom to speak had been impugned”.
His Honour referred to the decision on the interlocutory appeal, saying that notwithstanding that the Court had left the matter for the trial judge Howie J had devoted part of his judgment to whether the police conduct produced unfairness and had identified what he described as the crucial issue. His Honour said at [117] that he thought that Howie J intended to provide “instructions or at least guidance to a new trial judge”.
After setting out portions of the reasons of Howie J, James J said -
“124. It would appear to me that in these paragraphs of his judgment Howie J said, inter alia, albeit in language which was often guarded, qualified and non-categorical, that it would be ‘too simplistic’ to conclude that it would be unfair to the accused to use evidence of admissions made in the conversation, because, if the accused had known the conversation was being recorded, he would not have made the admissions, and that it was necessary to enquire into the reason why the accused would not have made admissions, if he had known the conversation was being recorded; and that it would appear from the evidence about the circumstances and terms of the first conversation on 24 April and the remark made by the accused on 24 April which was recorded by the listening device, that the reason why the accused would not have made the admissions, if he had known the conversation was being recorded, was that the accused believed that, if what he said when questioned by the police was not recorded, evidence of what he said could not be used against him, whereas if what he said was recorded, evidence of what he said could be used against him; that this belief on the part of the accused, that, if what he said when questioned by the police was not recorded, evidence of what he said could not be used against him, had not been induced by anything said or done by the police prior to the commencement of the conversation on 15 May and that there was no evidence that, prior to the commencement of the conversation on 15 May, police had intended to induce such a belief; and that there is a significant difference between conduct by police inducing a belief that a conversation was not being recorded and conduct by police inducing a belief that evidence of the conversation would not be used against the person to whom the police were speaking; but that at page 25 of the transcript of the conversation, it might be the position that police had attempted to induce or confirm a belief on the part of the accused, that what was being said in the conversation could not be used against him.”
His Honour continued -
“125. I will now make some findings of fact of my own. In the present case the accused knew on 15 May that the persons he was speaking to were police officers. On 15 May the accused was told several times by the police officers that he did not have to say anything to the police and he was reminded of the written summary under part 10A of the Crimes Act which he had been given on 24 April and I am satisfied that the accused understood that he did not have to say anything to the police.
126. Having listened to the recording of the conversation and having studied the transcript of the recorded conversation, I do not consider that the questioning by the police officers exceeded permissible limits as involving unacceptable cross-examination or unacceptable pressure or otherwise (see Plevac).
127. As I earlier indicated, counsel for the Crown made a number of concessions. I find, in accordance with the Crown’s concessions, that the accused would not have spoken to the police on 15 May if he had known the conversation was being recorded; that the police knew on 15 May that the accused would not speak to police if he knew that the conversation was being recorded; that the accused did not know that the conversation was being recorded and believed that the conversation was not being recorded; that the police knew that the accused believed that the conversation was not being recorded; and the police did not tell the accused that the conversation was being recorded.
128. However, these factors are not sufficient of themselves to satisfy me that it would be unfair to the accused to use evidence of admissions made in the conversation of 15 May.
129. I will now turn to what were identified by Howie J in his judgment in the Court of Criminal Appeal as being critical issues of fact. In accordance with Howie J’s judgment, I have to determine why the accused believed that, if a conversation he had with police officers was not recorded, it could not be used in evidence against him and whether the police officers had (intentionally) induced this belief in the accused.
130. On the basis of, inter alia, the circumstances and terms of the conversation of 24 April and the remark made by the accused on 24 April which was recorded by the listening device, I find that the accused believed on 24 April and still believed at the commencement of the conversation on 15 May that, if a conversation he had with police officers was not recorded (‘off the record’), evidence of the conversation could not be used against him in criminal proceedings. That was a belief which the accused had formed himself, independently of anything said or done by the police and up to the commencement of the conversation on 15 May nothing the police had said or done had induced, or contributed to, the formation of this belief. I accept that, up to the commencement of the conversation on 15 May, police officers had not set out to induce in the accused a belief that, if what he said to police officers was not recorded, evidence of what he said could not be used against him.
131. I, accordingly, find that nothing happened, before the commencement of the interview on 15 May, which would lead to a conclusion in favour of the accused, that it would be unfair to use evidence of the conversation against him.
132. I do not consider that anything said or done in the conversation up to page 25 of the transcript would change the situation. However, at page 25 of the transcript, Detective Abdy spoke the words which have already been quoted earlier … “.
The words his Honour had quoted were the part of the conversation in [43] above. His Honour considered that they -
“134. … would have conveyed to the accused that, if he gave information to the police about the shooting, the consequence might be a consequence beneficial to him, that he would have a greater sense of well-being (‘He might feel better’), but a consequence that would not ensue was his being arrested and deprived of his liberty. In my opinion, it was implicit in what was said that, if the accused spoke to the police about the shooting, what he said would not be used to his disadvantage.”
His Honour found that, when he spoke these words, Detective Abdy intended to induce or promote a belief on the part of the appellant that, if he spoke to the police about the shooting, what he said would not be used disadvantageously to him. His Honour came to the conclusion -
“140. I have already found that the accused had come to the belief, quite independently of anything said or done by the police, that, if a conversation he had with the police was not being recorded, it was ‘off the record’ and could not be used in evidence against him. However, I find that what Detective Abdy said at page 25 of the transcript strengthened this belief and encouraged the accused to speak to the police about the shooting when previously in the conversation he had been reluctant to do so.
141. I conclude that what Detective Abdy said at page 25 of the transcript impugned the accused’s freedom to choose whether to speak to police. Detective Abdy had intentionally said to the accused that, if the accused spoke to the police he would not be arrested and what he said could not be used against him. It would be unfair to use against the accused evidence of admissions made by him after the words spoken by Detective Abdy at page 25 of the transcript, and, therefore, evidence of those admissions should be excluded.”
(c) The appeal
The appellant did not challenge any of James J’s findings of fact. He submitted that, although the judge had not expressly so found, it should also be inferred that the detectives knew of the “remark made by the accused on 24 April which was recorded by the listening device”, see his Honour’s [130], so that they knew the complete basis for the appellant’s belief there found. He said also that, although the judge had not expressly so found, it should be inferred that the detectives were aware of the belief of the appellant that an unrecorded (“off the record”) conversation with them could not be used against him in criminal proceedings.
A decision whether or not to refuse to admit evidence of an admission pursuant to s 90 of the Act is a discretionary decision. The language of s 90 calls for an evaluation of whether or not having regard to the circumstances in which the admission was made it would be unfair to the accused to use the evidence, and then a decision whether or not to refuse to admit the evidence of the admission. The process of evaluation is closely analogous with the exercise of a discretion (see Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653 at [35]), and s 90 is closely akin to the common law unfairness discretion considered in The Queen v Swaffield. The evaluation and the decision in combination confer a discretion. Section 90 has been so viewed in, for example, DPP v Attallah [2001] NSWCA 171 at [19], R v Lyberopoulos [2002] NSWCCA 280 at [42] and the decision on the interlocutory appeal.
Accordingly, regard should be had to whether there was error in James J’s exercise of his discretion of the kind described in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 505, see R v Kyriakou (1987) 29 A Crim R 50 at 57. Their Honours said -
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
It was suggested on behalf of the appellant that these principles may not wholly govern appellate review in a criminal appeal, and that the appellate basis of miscarriage of justice in s 6 of the Criminal Appeal Act 1912 meant that, if the Court of Criminal Appeal considered that the evidence should have been excluded in the exercise of the s 90 discretion and it was reasonably possible that it affected the verdict, the ground of appeal should be upheld. It is not necessary to go into this. The appellant presented his submissions conformably with House v The King, including the submission that the only reasonable conclusion was that it would be unfair to the appellant to use the evidence. My reasons for declining to accept that submission carry with them that I do not think the evidence should have been excluded in the exercise of the s 90 discretion and that there was no miscarriage of justice in the admission of the evidence.
The appellant first submitted that James J had erred in principle in his regard to s 90, because he had focussed on the intention of the detectives rather than all the circumstances of the conversation affecting unfairness to the appellant.
I do not think his Honour’s application of s 90 was in error in this respect. Fairness or unfairness is multi-faceted, and if it involves the accused’s belief that what he says to the police can not be used against him it extends to whether or not that belief was engendered by what the police said or did and, if it was so engendered in whole or in part, whether the police intentionally brought that about. That is so, amongst other reasons, because the propriety or impropriety of the police conduct is material to fairness or unfairness, see McDermott v The King (1948) 76 CLR 501 at 512-3; The King v Lee (1950) 82 CLR 133 at 150-1; The Queen v Swaffield at [14]-[18], [26]-[28], [71]-[78]. In The Queen v Swaffield the reasons of Toohey, Gaudron and Gummow JJ included at [74] that voluntariness, reliability, unfairness to the accused and public policy considerations can not always be treated as discrete issues. Intention to create circumstances of unfairness in use of evidence is not necessary, but presence or absence of intention is not irrelevant.
The judge referred to the detectives’ intentions, as had Howie J in his reasons in the interlocutory appeal, and in coming to unfairness at p 25 of the transcript of the conversation spoke of what Detective Abdy “had intentionally said” to the appellant. But his Honour did not make the detectives’ intention the measure of fairness or unfairness. He paid regard to their intention as part only of the circumstances, see in particular the parentheses in his [129], and his ruling directly addressed unfairness in use of evidence of the conversation against the appellant with particular reference to his freedom to choose whether or not to speak to the police.
The appellant then submitted that James J had erred in failing to take into account that, albeit unintentionally, prior to p 25 of the transcript of the conversation the detectives had said and not said things which would have tended to confirm the appellant’s pre-existing belief that evidence of the conversation could not be used against him in criminal proceedings. The appellant accepted that the police had not induced or contributed to formation of that belief, but submitted that the detectives’ confirmation of it was a relevant matter which should have been taken into account.
The things said and not said to which the appellant referred were these.
(i)In the police car Detective Abdy told the appellant that, as on 24 April 2002, he did not have to say anything to the police if he did not want to; the appellant submitted that he did not add, as had been said on 24 April 2002, that anything the appellant said may later be given in evidence in court.
(ii)At the park Detective McLean reminded the appellant that nothing had been recorded on 24 April 2002, repeated that the appellant did not have to talk to the police if he did not want to, and said that all the police wanted was “just a little bit of cooperation here”; the appellant submitted that again the detectives did not say that anything the appellant did say may later be given in evidence in court.
(iii)When the conversation turned to getting lives back to normal and the detectives wanting “to try and clear up a few things here”, the appellant was again told that he did not have to talk to the detectives if he did not want to; the appellant submitted that the impression was given that the police were not investigating the appellant’s involvement, but were just seeking to eliminate the involvement of others, and that again that the detectives did not say that anything the appellant said may later be given in evidence in court.
The detectives told the appellant that they were not trying to con or trick him. The appellant submitted that the effect of what they said was to trick him, by confirming his pre-existing belief that evidence of what he said could not be used against him in criminal proceedings and giving him a false sense of security. He submitted that the detectives knew that he would not speak to them if he had known that the conversation was being recorded, but that he also would not have spoken to them if he had known that what he said (albeit unrecorded) might be used in evidence against him, and that it was inescapable that, by what they said and did not say, the detectives confirmed the appellant’s belief that anything he said could not be used in evidence against him. And he submitted that the judge had erred in not taking this into account in holding in his [132] that nothing said or done in the conversation up to p 25 of the transcript changed the situation that the appellant had formed the belief that evidence of the conversation could not be used against him independently of anything said or done by the police.
James J did not advert to whether or not there had been confirmation of the appellant’s independently formed belief, as a matter bearing upon unfairness. Counsel appearing for the appellant at the trial made no submission to the effect of the appellant’s submissions as developed in this Court, although there was passing reference to unfairness through the police confirming a belief held by the appellant.
It is not necessary to enter upon any significance to discretionary error or miscarriage of justice of the limited manner in which the submissions were made to his Honour. In my opinion, the basis for the submission in this Court is unsound.
Accepting, as the judge found in his [130], that at the commencement of the conversation the appellant believed that an unrecorded conversation with the police could not be used against him in criminal proceedings, I do not think it correct that what the detectives said and did not say tended to confirm that belief. The detectives did not correct the erroneous belief, on their evidence in the voir dire enquiry because they had a like belief, but failing to correct is very different from confirming. The fact that the detectives did not tell the appellant that anything he said may later be given in evidence in court was not confirmatory. The appellant already held the belief, it did not need confirmation, and the appellant gave no evidence in the voir dire enquiry that there was some kind of confirmation; confirmation was not in question. At least until the words at p 25 of the transcript of the conversation there was no holding out that, if the appellant did speak to the detectives, what he said could not be used against him: at that point the judge considered that what Detective Abdy said strengthened the appellant’s belief and encouraged him to speak to the police, see his [140]. I do not think that occurred at any earlier time.

The appellant finally submitted that James J had erred in the exercise of his discretion because, in the circumstances of the conversation of 15 May 2002, the only reasonable conclusion was that it would be unfair to the appellant to use the evidence. This submission involved failure to correct the appellant’s erroneous belief, but went beyond it because in fact the conversation was recorded. The appellant submitted that he would not have made any admissions if he had known that what he said could be used against him, which in his belief was the same as knowing that that conversation was being recorded; that (as James J found in his [127]) the detectives knew that the appellant would not speak to them if he knew the conversation was being recorded; and that although the detectives did not intentionally act improperly, by covertly recording the conversation they tricked him into speaking to them when what he said could in fact be used against him. It was said that the effect, albeit not the intention, was to impugn the appellant’s freedom to choose whether to speak to the police, that the effect also was that any admissions made may well have been unreliable because the appellant may have been deflecting attention from his friends and onto himself in the belief that what he said could not be used against him, and that in all the circumstances there was unfairness in using the evidence.
It is appropriate first to go to unfairness through unreliability, although fairness or unfairness must be evaluated as a whole. For Ground 2 later considered there was evidence from the appellant to the effect that he set out to deflect attention from his friends and onto himself. There was no such evidence in the voir dire enquiry. The appellant submitted that indications of that position could be seen, particularly in the appellant’s responses to questions whether Arno or Liane was involved in the murder and who drove to Cecil Hills.
Reliability has been regarded as a material matter in relation to fairness or unfairness, see Van der Meer v The Queen (1988) 62 ALJR 656 at 666, 669; Duke v The Queen (1989) 180 CLR 508 at 513; The Queen v Swaffield at [18]-[20], [26]-[28], [54], [74]-[78]. It is not necessary to go into whether s 85 of the Act, separately providing for exclusion of an admission unless the circumstances in which it was made “were such as to make it unlikely that the truth of the admission was adversely affected”, has diminished its relevance to the exercise of the s 90 discretion. Ordinarily persons do not make admissions against interest unless they are true; if there is some other reason for an admission, it may be unfair to use it as true evidence if the other reason suggests unreliability. But also, reliability is a matter for the jury; the approach recognised in The Queen v Swaffield at [91] of looking to “the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned” particularly permits reliability to be left to the jury.
There is some unreality in the proposition that belief that an admission about commission of a murder can not be used in criminal proceedings may prompt an untrue admission to the police. Even if the admission could not be used in criminal proceedings, it would be likely to excite police interest and provoke other police endeavours to prove, apart from the admission, commission of the murder. The admission is still against interest, with what that conveys for truth.
In the present case, the conversation as a whole to p 25 of the transcript does not convey that what the appellant said to the detectives was affected by his belief that evidence of the conversation could not be used against him in criminal proceedings or by deflection of attention from his friends. He was not cooperative and was fencing with the detectives, and in my understanding of the conversation was well conscious that what he said to the detectives could be adverse to his interests even if it could not be used in evidence. Reliability through being against interest is not confined to use as an admission in criminal proceedings. As a material matter in relation to fairness or unfairness in the exercise of the s 90 discretion, in my opinion the appellant gains little support.
This appears to have been the judge’s conclusion, and indeed to have been accepted by counsel for the appellant at the trial. For his ruling on s 85 of the Act the judge said -
“[90] I am satisfied that the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admissions was adversely affected.
[91] On 15 May, as was conceded by counsel for the accused, the accused was not subject to any condition or characteristic or disability such as was likely to adversely affect the truth of the admissions. I do not consider that the nature or manner of the questioning or the contents of any of the questions asked was likely to adversely affect the truth of admissions made in response to the questioning. The questioning was not hostile or overbearing, or, in my opinion, unduly persistent or confusing or too leading. That the accused often claimed not to know or not to remember, and sometimes gave partial, indirect or equivocal answers or evaded answering questions, does not militate against a conclusion that the circumstances in which such admissions as were made were made, were such as to make it unlikely that the truth of those admissions was adversely affected.”
The focus was not on unreliability because the appellant may have been deflecting attention from his friends and onto himself in the belief that what he said could not be used against him, but that can not have escaped such consideration as it warranted.
Going to trickery by covert recording, the covert recording of a conversation does not of itself make it unfair to use the evidence. Nor is there unfairness simply because, had the accused known the conversation was being recorded, the accused would have declined to participate; that will often be so when duly authorised listening devices are used. Once this is recognised, it can be seen that in considering unfairness because the accused’s freedom to choose to speak to the police has been impugned, the freedom to choose may be impugned without unfairness in use of the evidence. It is not enough to say that the effect of covert recording was to impugn the freedom to choose.
So in The Queen v Swaffield at [91], cited above, Toohey, Gaudron and Gummow JJ spoke of a discretion when the freedom had been impugned, and of looking at all the circumstances which might point to unfairness. Impugning and unfairness were not equated. Kirby J made the same point at [155]; having taken from decisions of the Supreme Court of Canada the “concept of elicitation”, that the police “took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks”, his Honour said -
“[155] I agree in the approach expressed by the Supreme Court of Canada. I do not consider that it is derived from the Charter so as to make it inapplicable to analogous circumstances in Australia. The test propounded is consistent with the general approach which our law has taken towards deception by law enforcement officials. Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest. There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority. Such facilities must be employed by any modern police service. The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent.” (emphasis added)
The appellant’s choice to speak or be silent was affected, because he would not have spoken to the detectives if he had known the conversation was being recorded. But that is so in almost any instance of covert recording, and he was made well aware that he did not have to speak to them at all. It must be asked why he did speak to them and whether the circumstances pointed to unfairness if the evidence was used; I respectfully agree with the discussion of Howie J in the interlocutory appeal.
The appellant spoke to the detectives in the belief that, if the conversation was not recorded, evidence of the conversation could not be used against him. Even if, as the appellant submitted should be inferred, the detectives were aware of that belief, I do not think there was thereby unfairness. Where the police are not responsible for an erroneous understanding which causes the accused to speak, more will be needed to make it unfair to use against the accused what the accused says. Hence the correct inquiry into why the appellant had his belief, the answer being that the police were not responsible for it.
The appellant referred to The Queen v Noakes (1986) 42 SASR 489, in which the accused asked the police if he could say something off the record, the police agreed, and it was thought that the accused meant and the police agreed that what was to follow “would be off the record in the sense that it would not be used in evidence” (at 492). This was held to be the offer of an improper inducement to make a further statement. The contrast with the present case is marked; there was a positive holding-out that what the accused said would not be used against him.
I am not persuaded that the judge’s exercise of discretion was unreasonable or plainly unjust within the House v The King principles, or that the evidence of the conversation to p 25 of the transcript was inadmissible for unfairness pursuant to s 90.
Conviction appeal – Ground 2
The tape and transcript to p 25 before the jury were edited in some respects; it is not necessary for this ground to describe the editing.
The appellant submitted that it was necessary for the judge to have warned the jury that any admissions made by the appellant may not have been reliable. He submitted that it should have been pointed out to the jury that if a person making an admission believes that it cannot be used against him, the primary basis for the assumption of truthfulness, that people usually do not make statements against interest unless they are true, is significantly diluted; and that if there was reason to make an untrue admission, such as a belief that the admission could not be used in evidence or the admission being to assist friends who would otherwise be the target of investigation, the admission may be unreliable and the jury should be cautious in determining what weight to give to it. It was submitted that the jury might not from its own experience fully appreciate the potential unreliability, and that the authority of a direction from the judge was necessary in order to bring it home to them. Reference was made to cases such as Bromley v The Queen (1986) 161 CLR 315 at 325; R v Baartmann [2000] NSWCCA 298 at [62] and R v Fowler (2003) 151 A Crim R 166 at [125].
Section 165 of the Act applies to “evidence of a kind that may be unreliable”. If there is a jury and a party so requests, unless there is good reason for not doing so the judge is to warn the jury that the evidence may be unreliable, to inform the jury of matters that may cause it to be unreliable, and to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
James J was not requested to act under s 165 on the basis that any admissions made by the appellant in the conversation of 15 May 2002 might be unreliable. Counsel for the appellant did not at the conclusion of his Honour’s summing up ask that there be given the direction said on appeal to have been necessary. The appellant accepted that r 4 of the Criminal Appeal Rules applied, but submitted that the judge should have given the direction even in the absence of a request in fulfilment of the overriding duty to afford the appellant a fair trial: Crofts v The Queen (1996) 186 CLR 427 at 451; R v Stackelroth (CCA, 9 April 1997, unreported); R v McKenzie (CCA, 16 September 1998, unreported).
In R v Tofilau [2006] VSCA 40 the police set up “scenarios” in which undercover operatives, posing as members of an organised criminal gang, interacted with the accused and gained his confidence in the course of staged criminal offences. The accused made admissions in relation to the murder with which he was charged. No error was found in the trial judge’s discretionary decision to admit the evidence of the admissions, but there was reference to reliability in relation to directions to the jury.
Callaway JA said that, apart from the directions appropriate to propensity evidence -
“7 There are no doubt other directions that will prove to be necessary or desirable in relation to confessions obtained in this way. The common law develops in response to experience and I do not claim to foresee what that experience may show, but it will often be appropriate to direct the jury that –
(a)the manipulation involved in this technique of investigation has the capacity to undermine the probative value that might otherwise be given to a confession;
(b)a person who believes that it is in his or her interests, and safe to do so, may well make an untrue statement; and
(c)the jury should consider any explanation for the confession put forward by defence counsel or by the accused in the course of his or her evidence or record of interview.”
Vincent J said -
“188 Finally, there was certainly no justification for the exclusion of the evidence in the exercise of discretion by reason of its inherent unreliability. As I have indicated earlier, there could well be cases in which the tactics adopted to secure admissions of themselves could be regarded as so calculated to produce inherently unreliable evidence or in which the particular vulnerabilities of the individual may be such that a trial judge could reasonably form the view that the evidence should be withdrawn from the jury because it would be unjust to act upon it. In my opinion, the evidence in the present case presents no such difficulties. There was, as I would suggest in the summary of evidence and outline of arguments set out earlier, much to support the confessional statements. Whether or not they were accepted as truthful and reliable was finally for the jury to decide.
189 However it must not be forgotten that the admission of out of court statements against penal interest by an accused person is premised on the notion that, in general, persons do not inculpate themselves with respect to criminal conduct unless they are guilty. Whilst this kind of evidence must always be approached with great care as (inter alia) the premise itself does not always hold true, the issue of reliability can be seen to present particular problems when the individual perceives that it is both safe and beneficial to make the statement.
190 There has been no complaint concerning the trial judge’s instructions to the jury in this or indeed any other respect, including his directions with regard to the possible prejudicial impact of the evidence that had been presented for their consideration. However I should add that I agree with the views expressed by Callaway, J.A. in his judgment on this aspect.”
A direction of the kind suggested by the appellant may in some circumstances be appropriate, but whether it should be given must depend on the particular circumstances, including what was said in the addresses to the jury and the overall content of the summing-up. It is necessary first to refer to some more of the evidence.
The appellant gave evidence at the trial. In his evidence in chief he said that when the police came to the Bass Hill premises on 20 May 2002 saying they wanted to show him some pictures, he “knew that they wanted to talk about other matters”. He said he did not think that what he said to the police was being electronically recorded, but did not say that he was affected by that in what he said. When asked why he did not say in the conversation of 15 May 2002 that he did not do the murder and was not there, he said -
“A. At the police station I kept saying that. They wouldn’t believe me. So, I kind of thought that the next time they talked to me, because they wouldn’t believe me I would use my position to help my friends get away with it.”
In other answers the appellant said that he believed that the police “wouldn’t stop harassing the Chester Hill address unless I say something or do something”. Taken to the part of the conversation about driving at Cecil Hills which included his saying, “You can just say that I drove … “, he gave the evidence -
“Q. Why did you say that?
A. The police were implying that Arno or Liane were involved and I did not want that. So I thought if I said something along those lines, but not say that I drove, but say something along those lines, they will stop implying that Liane and Arno were involved.”
His evidence in chief also included -
“Q. You have told us that one of the reasons why you answered the questions the way you did on that day …
A. Yeah.
Q. … was to stop the police from looking elsewhere?
A. Yes.
Q. … for the robbers. Were there any other reasons why you responded the way you did on 15 May?
A. Yes. I knew I was going to gaol for 17 January, and the police were paying – playing – I mean paying, regular visits to the Chester Hill address, and I wanted that to stop. And I thought that if I acted like a suspect, like just to them two police officers off the record, you know, I would never be charged with this. And when – and when I would go to gaol, and then if they were to keep harassing me, that would be find fine [sic] because they would only be harassing me, nobody else.”
In the course of his cross-examination the appellant said that on 15 May 2002 he “implied to these police that I may be involved” in the Logozzo home invasion but “would not say yes”; he said that he said to the police “You guys know that I did it” and “that I did both” as questions, and because although he had not done it he knew who had and was trying to protect his friends -
“Q. To deflect the police away from them and bring their focus upon you?
A. Yes.”
The appellant said that on 15 May 2002 he “devised a plan”, namely “to make these two police officers think I was involved in order for my friends to get away with it”, and that he would “say to the police these things that would implicate my involvement” so that his friends could avoid liability. He repeated that, pursuant to this plan, when he spoke to the police about them knowing that he was involved he did so “to protect my friends, and to keep the police away from Arno and Liane”. He agreed that he was lying to the police as part of a “strategy” to “deflect them away from the true criminals and focus on [himself]”.
The cross-examination included questions about 24 April 2002, with the appellant saying that he was willing to talk to the police but not to have electronic recording or recording by making a note -
“Q. Why not?
A. I didn’t want anything that I said to be used against me.
Q. You knew that they were going to ask you about the Kress home invasion?
A. Yes.
Q. And they also asked you questions about the Logozzo home invasion?
A. Yes.
Q. And you gave them answers in relation to both of those matters?
A. We spent most of the time talking about the Kress invasion.
Q. Yes?
A. And then at the end they started asking me about the Logozzo house.
Q. And did you not want anything you said recorded so that it could not be used against you, is that what was operating --
A. Yes.
Q. -- on your mind?
A. Yes.”

The Crown Prosecutor’s address to the jury included -
“Now he has come up with an explanation in the course of this trial that I would submit to you is to be discarded as completely and utterly untenable. He says to this Court that he told the police these things implying that he was the person who participated in the Logozzo home invasion. Why does he do that. Because he was looking after his friends.
He respects these people. He was attracting attention to himself so that they could avoid liability for their criminality. He was prepared to be on trial for murder and not tell anyone about who the true perpetrators were, according to him. He was prepared, according to him, to mislead the police by attracting blame to himself – to save them. He wanted them to escape the liability of their actions. That is what motivated him, he said, to imply to the police, these were his words, that he was the wrong doer. We say that it would more than imply. We would say that he confessed. He sought to explain that. I will deal with that in a moment but for the present purposes the Crown says to you on 15 May he confessed and on 24 April he made admissions with regard to the pistol, that implicated him too what he said to Arno Do.”
The Crown read to the jury the appellant’s evidence about not wanting anything recorded so that it could not be used against him, see [90] above, in context it seems to justify to the jury the covert recording of the conversation of 15 May 2002. A little later the Crown said, not entirely accurately -
“Now the accused has told us he wanted to speak to the police because he had made up his mind he devised the strategy in the car on the way to the park to mislead them by drawing to himself to let his friends of less than ten drinking occasions to get away with it.”
The Crown Prosecutor said -
“He says, that he is trying to implicate himself: He is trying to make them focus on him. If that were so why was it necessary you might ask to tell a lie about the pistol? Why not just tell them: ‘I did the Kress home invasion. I was the bloke with the knife.’ Why, lie, about, the pistol? Why attach himself to the pistol? The Crown says this: He was not lying about that. He was telling the truth. He was the person with the pistol. He believed he wasn’t being recorded. He believed he could say anything to the police because they couldn’t use it against him. He believed he was on pretty safe ground. The Crown says that you can take those utterances and treat them as a reliable acknowledgement of his involvement in both the Kress and the Logozzo incident. As reliable evidence, reliable admissions that he was the person who had the control over the pistol. He was the person who bought it. He was the person who sold it.”
In the address to the jury of counsel for the appellant, reasons for the appellant’s responses to the detectives on 15 May 2002 were prominent. Counsel began on that matter -
“He tells you he knew he was going to gaol for his involvement in the Kress home invasion and he tells you that he wanted to keep the police interested enough in him so that they would continue to pursue him, after he went to gaol and left the others who weren’t in gaol alone.
But without saying anything that fairly and squarely put him in the gun, so to speak, for the Logozzo home invasion.”
A little later counsel said, although using the wrong date -
“If you listen to the tape and consider what Sophear Em told you in the witness box, doesn’t it sound like someone who’s trying to do enough to keep the focus on him to the exclusion of the others and not saying too much so that he would actually be implicated in the commission of these offences.
What is the effect of the answers that the Crown relies upon as admissions.
Do those answers do much more than show that he knew something about what had happened on the 17th of January [sic]. Isn’t he just giving them what they want to hear, and what they believe.”
Specifically as to the conversation of 15 May 2002, counsel said -
“In any event, Sophear Em told you in the witness box that what he was doing that day was trying to imply that he was involved, because he knew that he was going to gaol for what he had said and what the evidence revealed about his involvement on 17th of January.
And because that was his state of mind, he decided to keep the police interested in him, and they would then he hoped focus their attention on him. He would be in gaol. Wouldn’t cause him any grief, particularly because he knew that he hadn’t committed a crime. He didn’t expect that he could possibly be charged because he wasn’t guilty.”
And again -
“What was said by him was very far removed from whole hearted admissions which would allow you to accept beyond reasonable doubt that he was involved. Isn’t there a possibility that he had those things. He was plainly – he knew he was going to gaol. ‘I didn’t do it so I can’t be charged’ at least there is a bit and up side. My friends won’t think well of me. It is not so simplistic. When you think about it he was nineteen years old he mixed in a particular milieu far removed from ours but we are all young once. It is not hard to understand how you might try in a situation he found himself in knowing he was going to gaol for 17 January why not at least protect his friends?
The transcript of counsel’s address was incomplete. More may have been said to the same effect, but counsel emphatically put to the jury that any admissions in the conversation of 15 May 2002 were unreliable because the appellant was only protecting his friends and thought that what he said would not “cause him any grief”.
Earlier in the summing up James J said that he would review some of the evidence, but would not attempt to review it all: he said, “You have heard addresses by the Crown Prosecutor and by counsel for the accused in which some parts of the evidence have been referred to”. He said the same as to the arguments put by the Crown Prosecutor and counsel for the accused. His Honour gave general directions about honesty and reliability of witnesses, including the appellant.
Having identified that the Crown relied on evidence of what it said were admissions made by the appellant, particularly in the conversation of 15 May 2002, and that the appellant disputed that he had made admissions, his Honour in due course said of that conversation -
“Questions you will have to determine about the alleged admissions include:
1. Are you satisfied that the accused said what the Crown says that he said?
2. If you are satisfied that the accused said what the Crown says that he said, are you satisfied that the accused was intending by what he said to make a truthful statement?
With respect to some of the alleged admissions the accused says that he was not intending to make a truthful statement and that he had some other purpose in saying what he did.
3. If you are satisfied that the accused said what the Crown says that he said and that the accused was intending by what he said to make a truthful statement, does what the accused said amount to an admission and what weight should be given to it.”
Referring to the transcript of the conversation, his Honour identified particular passages and what the appellant had said in his own evidence about them. This included -
“I have referred to some answers and explanations given by the accused in his evidence about some particular parts of the conversation on 15 May sought to be relied upon by the Crown as being admissions.
However, when he was giving evidence the accused gave some answers and some explanations which would apply to a number of the passages relied on by the Crown as being admissions.
The accused said that he gave some of his answers on 15 May to protect his friends who he knew had committed the offences on 17 January, in order to deflect or divert police investigation away from them and to focus the police investigation on himself.
He said in evidence-in-chief: ‘I will use my position to help my friends get away with it.’
He said in cross-examination: ‘My plan was to make these two police officers think I was involved in order for my friends to get away with it.”
In cross-examination he said: ‘I was going to say to the police things that would implicate my involvement.’ So that his friends could avoid criminal liability.
The accused said that he was prepared to imply that he was involved in the offences in the Logozzo home: ‘Because if I did not do this crime, how could I be charged for it.’
He agreed with the Crown Prosecutor that he was confident in the belief that ‘nothing could happen to you because you didn’t do it.’
Another explanation the accused gave for saying some of the things he said to the police, for example that he had sold a pistol to a man at Cabramatta, was that he wanted the police to stop searching people’s houses. He also said in his evidence that on 15 May he had given a number of answers which he had intended to be non-committal, for example the answer, ‘probably’.”
The summing-up included further reference to the appellant’s evidence that he said things to deflect investigation from his friends, and in a review of the Crown’s address that the accused thought on 24 April 2002 that, because the conversation was not being recorded, what he said could not be used against him, and that he could talk about having a pistol with impunity. The transcript of the summing-up from about this point onwards was not available. However, his Honour squarely brought out for the jury’s consideration whether any admissions in the conversation of 15 May 2002 were unreliable because the appellant was seeking to deflect attention from his friends and believed that he was not himself at risk.
There was evidence before this Court from counsel for the appellant at the trial -
“5.I do not believe that I sought a direction from James J that he warn the jury that admissions made by the appellant to the police on 15 May 2002 may be unreliable if the appellant believed they could not be used against him. Although there is a degree of uncertainty brought on by the passage of time I believe if I made such a request I would remember it. I do not believe such a warning was given by the trial judge.”
In Carr v The Queen (1988) 165 CLR 314 Brennan J said at 325 -
“A warning is needed when there is a factor legitimately capable of affecting the assessment of evidence of which the judge has special knowledge, experience or awareness and there is a perceptible risk that, unless a warning about that factor is given, the jury will attribute to an important piece of evidence a significance or weight which they might not attribute to it if the warning were given. It is not possible to define a priori the circumstances in which a warning is necessary: the circumstances which show whether a perceptible risk of miscarriage of justice exists in relation to the assessment of evidence include the charge, the evidence and the conduct and atmosphere of the trial.”
That the appellant believed that he was not at risk was not, on his evidence, founded on belief that what he said could not be used against him; it was because he was innocent. The Crown put to the jury that belief that what he said could not be used against him was a mark of reliability, not unreliability. The reliability of what he said was for the jury, and the matters bearing upon it as relied on by the Crown and the appellant were fully before the jury. That the appellant may have believed that what he said could not be used against him, not articulated by him in his evidence, could cut both ways as to reliability, but was something well open for the jury’s appreciation and evaluation. In my opinion, a direction to the effect suggested was not necessary. Unreliability of any admissions in the conversation of 15 May 2002 was prominent in the appellant’s case at the trial. The unreliability was in his evidence attributed to his strategy to protect his friends, but a feature of the strategy was that the appellant did not think himself at risk. That he was not at risk because he didn’t do it, but also because the conversation was not being recorded and what he said could not be used against him, was a difficult conjunction, but it was exposed for the jury and it was well open to the jury to undertake the necessary assessment; I do not think there was a risk as described by Brennan J.
Sentence appeal – Ground 1
The judge said that he imposed fixed terms of imprisonment -
“ … because, if I were to impose sentences containing a period during which the prisoner would be eligible for release on parole, that parole period would be subsumed in the non-parole period of subsequent sentences. The fixed terms will be equivalent to what would have been the non-parole periods, if I had imposed sentences containing non-parole periods and parole periods.”
The appellant accepted that the Kress robberies were serious offences, and that the judge was entitled to regard them, as he did at his [78], as “much worse offences than the kind of armed robbery offence described in par 162 of the Chief Justice’s judgment in the guidelines decision of R v Henry (1996) 46 NSWLR 346 at 388 (162) for which the Chief Justice said a total sentence of imprisonment for four to five years should generally be imposed.”
The appellant submitted that, given that the appellant was aged 19 when the offences were committed, that he was found by the judge to have been “to some degree immature” and that he had a relatively minor criminal record, a fixed term of 12 years as the equivalent to a non-parole period after a discount of about 10 per cent for the plea of guilty was simply excessive. As to immaturity, attention was drawn to the report before the judge of Mr Peter Champion, a clinical psychologist, which included that as at December 2004 the appellant was “perhaps only now beginning to fully mature” and referred to “indications of a significant level of unthinking peer dependency, and a measure of personal inadequacy”. It was said that youth and immaturity required a lower sentence: R v Makisi (2004) 151 A Crim 245 R at [33].
The judge noted the submission that he should take into account the appellant’s youth and immaturity and his lack of any relevant criminal history, and plainly did so. While youth and its immaturity are of significance in the sentencing process, the judge was entitled not to give them great weight in the present case because, as was said in R v Gordon (1994) 71 A Crim R 459 at 469 -
“Where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the protective function of the criminal courts would cease to operate unless deterrence and retribution remained significant considerations in sentencing that youth: Pham (1991) 55 A Crim R 128 at 135; Allam (unreported, Court of Criminal Appeal, 15 April 1993) at p 4; Hawkins (1993) 67 A Crim R 64 at 66”: .
The judge correctly took a strong view of the objective seriousness of the Kress robberies, including (and this is also material to the significance of the appellant’s youth and immaturity) that the appellant participated in the Kress robberies on 17 January 2002 notwithstanding that he knew that in the Logozzo home invasion on 7 January 2002 Mr Logozzo had been shot and killed. I note that the appellant submitted that this was not a significant aggravating circumstance, since the risk of injury to the victims would have been obvious even without the object lesson of the Logozzo home invasion, and even suggested that tying up the occupants of the Kress home worked in his favour because it should be seen as an endeavour to prevent a repetition of what had then occurred; I see no error in the judge’s approach. No other complaint was made in the application concerning his Honour’s regard to the appellant’s subjective circumstances.
The maximum penalty for the Kress robberies was imprisonment for 25 years. The sentences are high but in my opinion the objective seriousness of the offences was such that they were within the judge’s sentencing discretion.
Sentence appeal – Ground 2
The appellant submitted that the judge erred in that he did not turn his mind to special circumstances in relation to the Kress robberies, and that he should have found special circumstances by reason of the appellant’s youth, immaturity and relatively minor criminal record. If he had done so, it was submitted, the non-parole period would have been a lesser proportion of the overall sentence, and since the 12 years was the equivalent to what would have been the non-parole period the judge should have imposed fixed terms of imprisonment less than 12 years and the commencement of the 25 years for murdering Mr Logozzo should have been earlier.
The Crown responded to the effect that, even if there were matters capable of constituting special circumstances, special circumstances went to variation of the statutory ratio and did not have to be found if there was no question of variation of the statutory ratio; and that there was no such question in the present case because of the manner in which the judge accumulated the sentences with the sentences in respect of the Logozzo home invasion.
The judge did turn his mind to special circumstances in relation to the Kress robberies. He said -
“80 I do not consider that I should find that there are any special circumstances within s 44 (2) of the Crimes (Sentencing Procedure) Act , otherwise than in the accumulation of sentences. Under the sentences I am about to impose there will be quite a lengthy period during which the prisoner will be eligible for release on parole, which will be equal to one quarter of the total sentences.”
The appellant’s submission preferred form over substance. The judge did not mean, by fixed terms equivalent to what would have been the non-parole periods, non-parole periods after variation for special circumstances. Since there was no question of extended supervision while on parole, there was no question of variation of the statutory ratio; the supervision while on parole could come in the lengthy period equal to one quarter of the total sentences. The Crown’s response is correct.
Sentence appeal – Ground 3
The appellant submitted that the Logozzo home invasion and the Kress home invasion were part of the same course of conduct. He said that there were many similarities between the offences in the Logozzo home invasion and the offences in the Kress home invasion, and that the differences apart from the identities of the victims and the particular outcomes of the injury to Mr Logozzo and the death of Mr Logozzo were of little significance (for example, in the Kress robberies the victims were tied up). He submitted that greater concurrence was required than was afforded by the judge, and that the concurrence afforded by the judge was very limited, only for one year with the sentence commencing on 20 May 2002 and for two years with the sentences commencing on 20 May 2013. In his submission, fulfilment of the sentencing objectives of the protection of society, personal and general deterrence, retribution and reform would be achieved even if there were greater concurrency of the sentences, and that greater concurrency was warranted lest the appellant’s prospects of rehabilitation be crushed: Postiglione v The Queen (1997) 189 CLR 297 at 304.
James J said that he was “unable to make any finding in favour of the prisoner that he has good prosects of rehabilitation or that he is unlikely to re-offend”. It is nonetheless proper to bear in mind the prospect of rehabilitation of a relatively young offender over what must on any view be a lengthy period of imprisonment; but not at the expense of recognition that the appellant committed serious and distinct offences. That the offences were all committed in the course of home invasions, and that the home invasions were ten days apart, does not detract from their distinct criminality as offences on two separate occasions against separate groups of persons. Considerable accumulation was required, and the aggregate sentence should fairly and justly reflect the total criminality of the offender’s conduct: Veen v The Queen (No 2) (1988) 164 CLR 465.

The extent of accumulation is part of the sentencing task of exercising a discretion in accordance with established principle, and in my opinion it was well within the judge’s discretion to arrive at the accumulation which he did.
Sentence appeal – Ground 4
Mao Vann was a co-offender with the appellant in the commission of the Kress offences on 17 January 2002. He pleaded guilty to one charge of aggravated robbery and asked that a further four charges of aggravated robbery be taken into account on a Form 1.
Vann also pleaded guilty to a charge of murder, the shooting at a cinema on 8 February 2002, and to a charge of supplying a prohibited drug as a result of possession of 2.7 grams of heroin and associated indicia of supply on the search of the Canley Vale premises on 16 February 2002. He was sentenced for the murder on 28 October 2004, prior to his sentencing for the aggravated robbery offence and the drugs offence. He was sentenced to imprisonment for 19 years commencing on 16 February 2002 and expiring on 15 February 2021, with a non-parole period of 14 years and 3 months commencing on 16 February 2002 and expiring on 15 May 2016.
Vann was sentenced for the aggravated robbery offence and the drugs offence on 17 February 2006. On 31 March 2006 the sentencing judge purported to vacate the sentencing and resentence him. Even then the expression of the sentencing went awry. In the Crown appeal next mentioned it was accepted that the judge intended to impose a sentence of 12 years imprisonment for the aggravated robbery offence with a non-parole period of 4 years, to commence on 16 February 2014 so that Vann would have an effective non-parole period of 2 years on top of the non-parole period for the murder and so that the period of his sentence would expire 3 years after the expiry of the period of his sentence for the murder. As expressed, the intended 2 years was 1 year and 9 months. The sentence for the drugs offence was wholly subsumed within the sentence for the murder.
The Crown appealed against the sentences, contending that they were manifestly inadequate. On 25 August 2006 this Court upheld the appeal: R v Vann [2006] NSWCCA 260. Hislop J, with whom Beazley JA and Hulme J agreed, said -
“24 In my opinion a non parole period of 4 years, being one third of a total sentence of 12 years, is unacceptably lenient, the more so when the sentence is structured to reduce the effective non parole period to 1 year and 9 months. This was a very bad home invasion in which a family and their visitor were terrorised by three men wearing balaclavas and carrying respectively a knife, a pistol and a rifle. The victims were threatened, robbed, bound and gagged. The level of criminality was of a very high order. The non parole period does not address the criminality particularly in terms of deterrence and denunciation.
25 His Honour found special circumstances in his Remarks on Sentence dated 31 March 2006. These were of limited significance and the matters his Honour considered constituted special circumstances had been taken into account by him in determining the head sentence. They do not demonstrate that a period of 8 years parole is required.
26 The head sentence of 12 years is within the range which was reasonably open to his Honour and I would not vary it.
27 In my opinion the non parole period is manifestly inadequate having regard to the high level of criminality involved in this offence. If it was not for the need to have regard to the principles of totality I would not have varied the statutory ratio. However, having regard to principles of totality and the fact that the respondent has some prospects of rehabilitation and will need to adjust following a long period in prison I would impose a non parole period of 7 years to commence on 16 February 2014 and expire on 15 February 2021.
28 The sentence imposed for the drug offence was wholly subsumed in the sentence for murder. There is force in the Crown’s argument that an actual punishment should have been imposed. However, having regard to the other sentences imposed on the respondent and as this is a Crown appeal I consider it unnecessary to intervene in that regard.”
The Court quashed the sentence for the aggravated robbery offence and resentenced Vann -
“ … to imprisonment for 12 years to commence on 16 February 2014 and expire on 15 February 2026 with a non parole period of 7 years to commence on 16 February 2014 and expire on 15 February 2021.
The appellant’s sentence appeal was heard prior to the Crown appeal in the sentencing of Vann. The parties provided supplementary written submissions after the Crown appeal was decided.
In sentencing Vann the judge was apprised of the sentence imposed on the appellant. As noted in the Crown appeal -
“13 His Honour found mitigating circumstances in that the respondent’s criminal record was ‘slight’, he was not regarded by the Court as being beyond reformation and rehabilitation, the evidence did not indicate a course of criminal conduct and he had pleaded guilty. His Honour took into consideration all of these matters. He regarded the offence as very serious. He considered the sentence imposed by James J on Em was ‘a sentence having regard to the objective criminality with which I respectfully concur’; he was unable to distinguish the respondent and Em in their criminality and concluded the respondent should be sentenced to a similar sentence to Em for the s 97(2) offence with the same discount for his late plea.”
The appellant submitted that the effect of Vann’s sentencing was that 5 years was accumulated onto the murder sentence and 4 years and 9 months non-parole period was accumulated onto the murder non-parole period. He said that this compared unfavourably with an effective addition of 10 years to the appellant’s period of imprisonment, the period from 20 May 2003 to the commencement of the murder sentence on 20 May 2013. He submitted that parity principles required that the sentence for the offence of murdering Joseph Logozzo commence earlier, suggesting 20 May 2008 rather than 20 May 2013; so that the appellant’s overall sentence would expire on 20 May 2033 and his non-parole period would expire on 20 May 2024.
The Crown submitted that the effective addition of 10 years was more correctly 9 years, because 1 year of the sentences for the Kress offences was concurrent with the sentence for the offence of firing a firearm with disregard for the safety of Marianne Logozzo. The appellant said that this should be seen as an accident of the structuring of the sentences, and that realistically the concurrency was intended to affect the sentence for the murder offence rather than the home invasion offences. I do not agree; the sentencing was carefully structured, and in my opinion the Crown’s submission should be accepted.
That said, there is a difference in the sentencing. Is there disparity giving rise to a justifiable sense of grievance: Lowe v The Queen (1984) 154 CLR 606 at 610, 613, 623; Postiglione v The Queen at 301?
The Crown submitted that it was relevant that the Vann sentence was imposed on a Crown appeal “and there are the usual double jeopardy constraints”. The appellant responded that parity principles apply notwithstanding that the comparator sentence is the result of a Crown appeal, since “[t]hat does not alter the justifiable sense of grievance”: R v Sharpe [2002] NSWCCA 96 at [21] per Smart AJ, Adams J agreeing; see also R v Christie [2000] NSWCCA 354 at [15] per Fitzgerald JA, Newman and Greg James JJ agreeing. The Crown did not develop its submission, and these cases should be followed.
Nonetheless, for a number of reasons I do not think that the appellant has made good a justifiable sense of grievance. First, the appellant was sentenced for the five home invasion offences, whereas Vann was sentenced for one home invasion offence with four others taken into account on a Form 1. Although the sentences for the five home invasion offences were made concurrent, the judge could properly take this into account in his accumulation with the sentence for the offence of murdering Joseph Logozzo. Secondly, the judge specifically took into account that the appellant participated in the Kress robberies on 17 January 2002 notwithstanding that he knew that in the Logozzo home invasion on 7 January 2002 Mr Logozzo had been shot and killed; this could not be said of Vann. Thirdly, the judge declined to find special circumstances; despite the appellant’s submissions to the contrary, I do not think he erred in this respect. In the complex discretionary exercise of determining concurrency and accumulation according to totality considerations, the difference in the sentencing does not in my view offend parity principles.
The result
I propose the orders -
1. In the conviction appeal, appeal dismissed.
2. In sentence appeal, grant leave to appeal but dismiss the appeal.
GROVE J: I agree with Giles JA.
HIDDEN J: I agree with the orders proposed by Giles JA and with his Honour’s reasons.
As to the first ground of appeal against conviction, the evidence admits of the inference that the police were aware during the conversation of 15 May 2002 that the appellant believed that what he said could not be used against him if it was not recorded, even though they did nothing to induce or confirm that belief prior to the offending passage at p 25 of the transcript. From that there flows the further inference that they took advantage of that belief to gather evidence against the appellant through a conversation which they knew, and he did not, was being recorded. There might be cases in which conduct of that kind by police might lead to relevant unfairness. However, for the reasons given by Giles JA, this is not such a case.
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LAST UPDATED: 23/11/2006

[2006] NSWCCA 336

3 November 2006

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