Em v The Queen - [2007] HCA 46

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE AND HEYDON JJ
SOPHEAR EM APPELLANT
AND
THE QUEEN RESPONDENT
Em v The Queen [2007] HCA 46
4 October 2007
S59/2007
ORDER
Appeal dismissed.

On appeal from the Supreme Court of New South Wales
Representation
S J Odgers SC with A Francis for the appellant (instructed by Legal Aid Commission of New South Wales)
D C Frearson SC with J A Girdham for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Em v The Queen
Criminal law – Evidence – Confessions and admissions – Discretionary grounds for exclusion – Unfairness discretion – Police covertly recorded a conversation with the appellant in a park – Appellant made certain admissions – Appellant not aware that he was being recorded – Appellant under mistaken belief that admissions to police could only be used against him in criminal proceedings if recorded electronically – Police deliberately omitted the second part of the standard caution, namely that anything said or done by the appellant could be recorded and used as evidence in court – Interpretation of s 90 of the Evidence Act 1995 (NSW) – Whether admitting evidence of admissions in these circumstances was unfair – Reliability of the admissions – Whether right to silence impugned – Whether jury should have been warned by the trial judge that an admission made in these circumstances may be unreliable.
Words and phrases – "unfair".
Evidence Act 1995 (NSW), ss 84, 85, 90, 137, 138.

GLEESON CJ AND HEYDON J. After a trial in the Supreme Court of New South Wales before James J and a jury, Sophear Em ("the appellant") was convicted of murdering Joseph Logozzo; assaulting Joseph Logozzo with intent to rob him while armed with a dangerous weapon; and firing a firearm with disregard for the safety of Marianne Logozzo. He was sentenced to 25 years imprisonment for the first offence, 10 years imprisonment for the second offence and two years imprisonment for the third offence. At that trial the appellant was also charged with five other offences, namely that, being armed with a dangerous weapon, the appellant had robbed Michael Kress, his wife Beverly Kress, his daughter Alyson Kress, his son Jonathon Kress, and Ramzi Tamer, who was a friend of his daughter. In the course of the trial the appellant pleaded guilty to those charges. He received five concurrent sentences of imprisonment for 12 years in relation to them.
The appellant's appeal to the Court of Criminal Appeal (Giles JA, Grove and Hidden JJ) against conviction and sentence was dismissed[1]. By special leave, the appellant appeals to this Court against the Court of Criminal Appeal's order dismissing his appeal to it against conviction. The Notice of Appeal makes two complaints. One is that the primary judge erred in overruling an objection to part of a confession recorded by police officers in a suburban park on 15 May 2002. The other complaint is in the alternative; that the jury should have been given a warning about the unreliability of the confession. If the first complaint is made out, the appellant contended that there should be no order for a new trial, but that he should be acquitted of the Logozzo offences. For the reasons given below, the appeal should be dismissed.
[1]Em v The Queen [2006] NSWCCA 336.
The crimes
The Logozzo home invasion. The three counts to which the appeal relates concern a "home invasion" on 7 January 2002. The home invaded was that of the Logozzo family in Cecil Hills, a suburb of Sydney. Mr and Mrs Logozzo arrived at their residence shortly after midnight. They were confronted by two men wearing dark clothes, balaclavas and large ski goggles. One was armed with a rifle and the other with a pistol. The men forced the Logozzos into their house. Other occupants of the house were threatened with the weapons, forced to leave the upstairs bedrooms in which they had been sleeping, and made to lie on the downstairs lounge room floor. The man with the rifle pointed it at Mr Logozzo and forced him upstairs so that property to be stolen could be identified. In the course of a struggle on the stairs and in the lounge room Mr Logozzo was shot in the chest by the man with the pistol. Mrs Logozzo ran to her husband's aid and was shot in the hand by the man with the pistol. The intruders then fled. Mr Logozzo was taken to hospital but was pronounced dead.
The Kress home invasion. On 17 January 2002 another home invasion took place nearby, at the residence of the Kress family in West Hoxton. Late in the evening Mr Michael Kress, his wife Beverly, their son Jonathon (aged 16), their daughter Alyson (aged 17) and her boyfriend, Ramzi Tamer, were at the Kress residence. At about 11.30pm Mr Kress opened his garage and stood at the open door smoking a cigarette. A car which had been stolen the previous day stopped opposite his driveway. Three men alighted from the car dressed in dark clothing and balaclavas. Two were wearing ski goggles. One carried a pistol, one a rifle and one a knife. The man carrying the pistol ran up the driveway and said: "Get in quick, don't shout, if you shout, I'll shoot you." The men forced all the occupants of the house to lie on the floor of the downstairs bar area, tied their hands and placed masking tape over their mouths. Numerous items of property were stolen. The man with the pistol told them to keep their heads on the ground for another ten minutes and not to call the police on pain of death. The appellant, who was 19 at the time of the offences, admitted being one of the three men, but gave evidence seeking to exculpate himself, which James J did not accept.
The police investigation before the 24 April 2002 conversation
The police received information leading them to believe that two persons who committed the Logozzo home invasion might have been parties to the Kress home invasion, and that on each occasion an AK47 assault rifle and a .32 handgun were used. On 16 February 2002 police officers executing a search warrant at premises in Canley Vale in connection with an unrelated matter found a fishing licence in the name of Mr Kress and a watch owned by Alyson Kress which had been stolen during the Kress home invasion, black electrical cable ties similar to those used to restrain the Kress family, and a balaclava. At that time the appellant and a friend of his, Mao Vann, were living on the premises. The watch was found in Vann's room. During the search, the appellant was asked: "Who is Michael Kress?" He replied: "Might be a friend of ours."
On 22 February 2002 the appellant was interviewed by police officers in relation to the killing of a person on 9 February 2002. After being cautioned, he answered over 270 questions.
The police then discovered that SIM cards registered in the name of two persons having an address of 1/119 Chester Hill Road, Bass Hill had been used in a mobile phone stolen during the Kress home invasion. This caused police officers to execute a search warrant on 24 April 2002 at 1/119 Chester Hill Road, Bass Hill, which were premises then occupied by the appellant. Until then the appellant had not been the subject of police interest in relation to either the Logozzo or the Kress home invasions. The appellant was made to wait in the lounge room for an hour while the house was searched. He was then taken to his bedroom while it was searched. In the appellant's bedroom the police found a carry bag containing, inter alia, black clothing, a balaclava, ski goggles, cable ties, two pairs of gloves, a roll of grey duct tape, and a sheath knife. He admitted that he owned those items, apart from the cable ties, but he said under questioning later that they had been used for fishing. Another occupant of the premises, Arno Do, was arrested in relation to a firearm found in the search. Liane Tran, who also occupied the premises, was taken to the police station for questioning about the use of her SIM card in a mobile phone stolen during the Kress home invasion.
The 24 April 2002 conversation
On 24 April 2002, following the search of the premises, the appellant was arrested. He was taken to Bankstown Police Station. He was questioned in an interview room about both the Logozzo and the Kress home invasions by Detective Senior Constable Bradley Abdy and Detective Senior Constable Michael McLean. Detective Abdy told the appellant he was to be asked about the Kress home invasion and administered the following caution: "I want you to know that you don't have to say or do anything unless you wish as anything you say or do may be recorded and later given in evidence at court." He was given a document to the same effect and a written summary of Pt 10A of the Crimes Act 1900 (NSW)[2]. He was also told that the interview would be recorded on a "video and audio machine". The following conversation then took place. The appellant said: "I'm not going to say anything to you if you turn that on. I don't want to look like a dickhead." Detective Abdy said: "I can turn the audio tapes on and leave the video off if you want?" The appellant said: "No, nothing." Detective Abdy said: "Well how about I turn the tapes on and you state that objection on them?" The appellant said: "I won't say a word if you turn it on." Detective Abdy said: "What about we write down what you say?" The appellant said: "No." Detective Abdy said: "Mick and I are going to ask you some questions anyway and it is up to you what you say."
[2]This was in compliance with the following provisions of Pt 10A (now repealed) of the Crimes Act: ss 355(2), 356C(1) and 356M(1). See n 12 below.
The detectives then put a number of damaging circumstantial matters to the appellant in relation to the Kress home invasion. After a few minutes the appellant twice said that he did not want anything recorded on the tapes. After the second refusal he said: "But what do you want to know, like where is the gun and stuff?" The detectives then left the room. On their return the following conversation took place. Detective Abdy said: "Well Sophear what is it going to be are you going to talk to us or not?" The appellant said: "Not if it's on the tapes." Detective McLean said: "There I've turned it off, even our phones are off." As he said this he turned the machine off. The appellant said: "What about a wire, like in the movies?" Detective Abdy said: "I'm not going to sit here naked with you mate, you'll just have to trust us. We have been up front with you from this morning and we haven't tried to trick you."
The detectives then questioned the appellant for some time about the Kress home invasion and elicited admissions, including his possession of a silver pistol used in that home invasion. In answer to a question from Detective McLean: "Why did you pick that house anyway?", the appellant said: "They just looked rich, nice house, they had a Commodore in the driveway." The appellant declined to name the co-offenders. The detectives then left the room.
On their return, before questioning him about the Logozzo home invasion, the following conversation took place. Detective Abdy said: "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 or do anything unless you want to. But whatever you say or do may be recorded and later given in evidence at court." The appellant said: "I don't want anything recorded." Detective Abdy said: "It is the same as before. Nothing in this room is turned on."
The detectives then questioned the appellant about the Logozzo home invasion. Detective Abdy proposed turning the machine on, but the appellant began to cry. He asked to speak to a solicitor, and he was given an opportunity to do so. After the appellant returned to the interview room, the following conversation took place. Detective Abdy said: "What is it going to be mate? How about I just put the tapes in and you tell us whatever you want?" The appellant said: "No." Detective Abdy said: "What are you afraid of?" The appellant said: "I don't want to look like a dickhead." Detective Abdy said: "I told you before, I can leave the video out if you want." The appellant said: "No tapes." Detective McLean said: "We can record the conversation in our notebook and get you to sign it if you are happy with what has been written." The appellant said: "No I don't want to sign anything or have anything written down." Detective Abdy said: "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 the other people in the house. If it was an accident, tell us, if you didn't shoot him tell us that." The appellant said: "I just don't want to talk about it just now, I have too much going on in my head, I want to say what happened in court." Soon afterwards the appellant was released from custody.
The detectives then prepared a record of what had been said based only on their recollections, not on notes. It was set out as a word-for-word record, but Detective Abdy agreed it was unlikely that word-for-word accuracy had been achieved. However, in this Court counsel for the appellant conceded that there was no significant challenge at trial to the essential accuracy of the record, save in one relatively minor respect. At the trial, pursuant to s 281 of the Criminal Procedure Act 1986 (NSW)[3], the primary judge excluded evidence of what had been said on the ground that it had not been tape recorded.
[3]Section 281 provides:
"(1) This section applies to an admission:
(a)that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and
(b)that was made in the course of official questioning, and
(c)that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.
(2)Evidence of an admission to which this section applies is not admissible unless:
(a)    there is available to the court:
(i)a tape recording made by an investigating official of the interview in the course of which the admission was made, or
(ii)if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or
(b)the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.
...
(4)   In this section:
...
reasonable excuse includes:
(a)    a mechanical failure, or
(b)the refusal of a person being questioned to have the questioning electronically recorded, or
(c)the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.
…"
There are equivalents in other jurisdictions: see Kelly v The Queen (2004) 218 CLR 216 at 228-230 [32]-[36].
The investigation after 24 April 2002
On 30 April 2002 police officers attended the appellant's residence and asked him whether, if they brought some photographs of different types of guns, he would be prepared to look at them and show them the type of .32 calibre pistol which, according to what he had said on 24 April 2002, he had been in possession of during the Kress home invasion but had later sold. He said he would have a look but that he might not point anything out. The police advised him to speak to a solicitor.
In early May 2002 warrants (ST 02/149(c)-(f)) were issued by O'Keefe J, a judge of the Supreme Court of New South Wales, under s 16 of the Listening Devices Act 1984 (NSW) authorising Detective Abdy and Detective McLean each to wear a covert listening device transmitter and recorder for the purpose of recording conversations with the appellant.
On 13 May 2002 the detectives attempted to speak to him at his residence but he was not there.
The events of 15 May 2002
At about 11.55am on 15 May 2002 Detective Abdy and Detective McLean picked the appellant up from his residence. Each had been fitted with a covert listening device transmitter and recorder. Detective Abdy said they wanted to show the appellant some photographs and talk to him for five or ten minutes, and that they were not going to the police station. He went into their car. Detective Abdy said:
"Mate, we're just gunna go and have a talk to you, I think there's a park or something up here. We're 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're going to come back and talk to you. Remember we said we might come back and show you some photos of some guns?"
While driving to the park, Detective Abdy reminded the appellant of his visit to the police station on 24 April 2002. The conversation continued as follows. Detective Abdy said: "Remember they gave you a piece of paper that said you didn't have to say anything to the police?" The appellant said: "Yeah, I know that." Detective Abdy said: "You know that?" Detective McLean said: "And we told you that, you remember that?" Detective Abdy said: "And the same goes again. You don't have to say anything to the police if you don't want to, ok?" Very soon thereafter Detective McLean said: "You know. Mate, you don't have to talk to us if you don't want to." But the detectives did not then or at any other stage say that anything the appellant said might be recorded and given in evidence. In evidence and argument this omitted warning was described as "the second part of the caution".
A little later the appellant asked: "So what, what do you want to know?" Detective Abdy said: "We want to know, you said when you did the home invasion at Hoxton Park. Do you remember that? Mate, I'm struggling to remember, I'm struggling to remember what you said. You said you picked the, why did you pick that house out?" The appellant then said: "I don't want to talk about that any more."
The detectives then showed the appellant photographs of guns. In the course of the conversation the appellant said: "The one that was used at the shooting was an SK." He had earlier denied knowing anything about the Logozzo home invasion.
During the balance of the conversation, the detectives repeatedly assured the appellant that he was not being tricked[4]. Detective Abdy said: "Mate, 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." A little later the appellant said: "I know how you guys work ... you try to con us", to which Detective Abdy said: "I'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." A little later still Detective Abdy said: "Sophear, 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." Detective McLean said: "Mate, you know you're under arrest^[[5]^]. 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." A little further on Detective McLean said: "Like Brad [Abdy] said, we're not here about tricking anybody."
[4]At one point Detective Abdy is transcribed as saying: "We're not trying to trick you up" but the word "trick" appears to be an error for "trip".
[5]The context suggests and counsel for the appellant accepted that the word "not" is wrongly omitted before "under arrest".

In the course of the conversation the appellant denied involvement in the Logozzo home invasion. But thereafter he behaved in such a fashion as arguably to make admissions in relation to that home invasion. Then at page 25 of the transcript of the conversation, Detective Abdy said: "Maybe you might feel better if you tell us. It's not as though we're going to slap the handcuffs on you and take you away otherwise we'd be at the police station if we were gunna do that, wouldn't we?" Below, this will be referred to as "Detective Abdy's p25 statement". It had great significance in the trial, because James J rejected the whole of the conversation taking place after it, in which the appellant gave a detailed account of his arrival at the Logozzo residence, the struggle, the shootings and the departure.
Procedural history
The trial of the appellant before James J was not the first trial he had faced on the charges relating to the Logozzo home invasion. There had been an earlier trial before Shaw J, which commenced on 1 September 2003, at which Shaw J made an order rejecting evidence of both parts of the conversation at the park on 15 May 2002. He did so on three grounds. He held that the evidence was inadmissible on the ground that it was obtained improperly within the meaning of s 138 of the Evidence Act 1995 (NSW) ("the Act")[6]. Secondly, he held that the evidence should be excluded under s 90 of the Act[7]. Thirdly, he held that the evidence should be excluded under s 137 of the Act as unfairly prejudicial[8]. He rejected contentions that the evidence was inadmissible under s 84[9] and s 85[10] of the Act.
[6]Section 138 provides:
"(1) Evidence that was obtained:
(a)improperly or in contravention of an Australian law, or
(b)in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a)    the probative value of the evidence, and
(b)the importance of the evidence in the proceeding, and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d)the gravity of the impropriety or contravention, and
(e)whether the impropriety or contravention was deliberate or reckless, and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."
Section 139(1) provides:
"For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:
(a)the person was under arrest for an offence at the time, and
(b)the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and
(c)before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence."
Section 139(5) provides:
"A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if:
(a)the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning, or
(b)the official would not allow the person to leave if the person wished to do so, or
(c)the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so."
[7]Section 90 provides:
"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."
[8]Section 137 provides:
"In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
[9]Section 84 provides:
"(1)Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by:
(a)violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or
(b)a threat of conduct of that kind.
(2)Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced."
[10]Section 85 provides:
"(1)This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:
(a)    in the course of official questioning, or
(b)as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
(2)Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3)Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:
(a)any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and
(b)if the admission was made in response to questioning:
(i)the nature of the questions and the manner in which they were put, and
(ii)the nature of any threat, promise or other inducement made to the person questioned."
The Court of Criminal Appeal (Ipp JA, Hulme and Howie JJ)[11] disagreed with Shaw J's conclusions in relation to s 138. It did so because he failed to find sufficient facts to support the conclusion that the appellant was under arrest or that s 139 applied; he failed to give reasons on that point; he took into account irrelevant considerations; and in other respects the exercise of "discretion", as it was described, miscarried. The Court of Criminal Appeal rejected Shaw J's conclusions in relation to s 90 on the ground that he took into account irrelevant considerations. And the Court of Criminal Appeal rejected his conclusions in relation to s 137 on the ground that reception of the evidence could cause no prejudice to the appellant in the relevant sense.
[11]R v Em [2003] NSWCCA 374.
In 2004 a second trial took place before James J. That trial led to the appellant's convictions.
At that second trial James J admitted the evidence of the conversation in the park up to Detective Abdy's p25 statement. He said the meaning of that statement was: "if the accused spoke to the police he would not be arrested and what he said could not be used against him." James J held that it would be unfair, pursuant to s 90 of the Act, to use against the appellant admissions made after Detective Abdy's p25 statement.
This appeal relates to the correctness of James J's decision not to reject the park conversation before Detective Abdy's p25 statement, and the Court of Criminal Appeal's concurrence in that course.
Evidentiary gates through which the evidence passed
Before assessing the applicability of s 90 to the first part of the 15 May 2002 interview, the other gates through which that interview passed may be listed. These were fully considered at a voir dire conducted before Shaw J at which the detectives gave evidence but the appellant did not. The transcript of that voir dire was before James J.
Section 84. Before Shaw J the appellant argued that s 84 applied. Shaw J rejected that contention. He said:
"I believe the police behaved properly in all of the circumstances. I accept the submission of the Crown Prosecutor that [the police in] honest belief, in pursuit of evidence relating to a serious and tragic crime, behaved in a way which was understandable."
The submission that s 84 applied has not been put since.
Section 85. Before Shaw J the appellant contended that s 85(2) applied. Shaw J rejected the contention. It was not repeated in the appeal to the Court of Criminal Appeal against Shaw J's order rejecting the evidence on other grounds. It was, however, advanced to James J. Reliance was placed on s 85(3)(b). Reference was made to what was said to have been persistent questioning; to the claims of the detectives that they were not trying to trick the appellant; to a representation by them that there was an important difference between an intentional shooting and an accidental one; and to Detective Abdy's p25 statement. Counsel for the appellant relied on the appellant having answered the questions by saying: "I don't know" or "I can't remember" or by asking a question. Counsel for the appellant submitted that some of the information which the appellant admitted in his answers had previously been conveyed by the detectives, and Detective Abdy did accept that on 24 April 2002 the appellant had been told that on 7 January 2002 one of the armed men had got into a struggle with Mr Logozzo on the stairs; that the other victims were tied up on the floor; and that the offenders used a red car. James J rejected these submissions. He said:
"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."
He said that the appellant's admissions of what he had been told before "were all given in response to non-leading questions by the police and, as spoken by the accused, sounded to me as answers given by the accused of his own accord and not as answers in which the accused was repeating what he had previously been told by someone else." James J concluded that the circumstances in which the admissions in the whole of the 15 May 2002 conversation were made were such as to make it unlikely that the truth of the admissions was adversely affected.
The appellant did not contend to the Court of Criminal Appeal that James J had erred in relation to s 85. In this Court counsel for the appellant accepted James J's conclusion; but despite doing so, and despite the jury's conclusion beyond reasonable doubt that the admissions were reliable, the appellant did not concede that they were in fact reliable. Counsel for the appellant also said that James J's finding did not mean that one could say the evidence "is likely to be reliable", and said that there could be "a real risk that it is unreliable, even though it is not excluded by reason of [s] 85." Whatever technical merit these distinctions have, it is not necessary to inquire into their practical merits because counsel for the appellant said that the appellant's case on s 90 did not rely on any unreliability argument. This was said to be because the basis for any such argument rested on the appellant's evidence late in the trial, and hence could not have been taken into account by James J when he overruled the s 85 objection at an earlier stage.
Section 138. Shaw J accepted the appellant's contention that the 15 May 2002 admissions should be excluded under s 138. The Court of Criminal Appeal reversed that decision. The appellant repeated the submission to James J. In particular, the appellant submitted that the evidence had been obtained improperly for one of three reasons.
(a)At the time of making the admissions, the appellant had been "under arrest" within the meaning of s 355(2) of the Crimes Act 1900 (NSW) and the provisions of Pt 10A of that Act had been contravened[12].
(b)At the time of making the admissions, the appellant had been "under arrest" within the meaning of s 139(5) of the Act; in consequence, s 139(1) of the Act applied, but the appellant had not been cautioned in accordance with s 139(1)(c) of the Act.
(c)Those conducting the questioning of the appellant had made a false statement within the meaning of s 138(2)(b) of the Act, and the other requirements of s 138(2)(b) were satisfied, so that evidence of the admissions was to be taken to have been obtained improperly.
[12]Part 10A of the Crimes Act was repealed by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Sched 4.16[3], and replaced by Pt 9 of that Act. In Pt 10A, s 356C(1) provided that a person who is under arrest may be detained. Section 356M(1)(a) provided that a person who is detained must be cautioned, orally and in writing, that "the person does not have to say or do anything but that anything the person does say or do may be used in evidence". Section 355(2) provided:
"A reference in this Part to a person who is under arrest or a person who is arrested includes a reference to a person who is in the company of a police officer for the purpose of participating in an investigative procedure, if:
(a)the police officer believes that there is sufficient evidence to establish that the person has committed an offence that is or is to be the subject of the investigation, or
(b)the police officer would arrest the person if the person attempted to leave, or
(c)the police officer has given the person reasonable grounds for believing that the person would not be allowed to leave if the person wished to do so."
Section 355(2)(a) and (c) of the Crimes Act corresponded in substance with s 139(5)(a) and (c) of the Act. The correctness of the first two contentions thus turned on the question of whether a full caution should have been given on the ground that the appellant was under arrest. It was submitted by the appellant to Shaw J that, while on 15 May 2002 Detectives Abdy and McLean did not believe there was sufficient evidence to establish that the appellant had committed the offences of 7 January 2002, they did believe that there was sufficient evidence to establish that the appellant had committed the offences of 17 January 2002. The latter submission was not put to James J. Instead reliance was placed on the evidence of another police officer. James J declined to act on that evidence, partly because that officer was not a person in whose company the appellant had been for the purpose of being questioned, and partly because he preferred another part of that officer's evidence.
The appellant also submitted that the detectives had given the appellant reasonable grounds for believing that he would not be allowed to leave if he wished. James J, after referring to the fact that the conversation took place in a park, that the detectives repeatedly told the appellant he was not under arrest, that the appellant had been under arrest on 16 February and 24 April 2002, that the detectives had not placed any physical restraint on the appellant, and that Detective Abdy at one point asked the appellant whether he wished to go back to the car, rejected the submission.
Hence neither s 139(5)(a) nor s 139(5)(c) applied, and nor did the equivalent parts of s 355(2). It followed that the detectives were not in breach of any duty to caution the appellant, and the first two contentions were rejected.
As to the third contention, based on s 138(2)(b), James J found that Detective Abdy's p25 statement was a statement of fact about the present intention of the detectives, namely that if the appellant spoke to them about the murder, it was not their intention to arrest him and prosecute him. James J also found that the detectives knew that the statement was false, and knew or ought to have known that it was likely to cause the appellant to make admissions. Hence s 138(2)(b) and s 138(1) were satisfied. But after considering s 138(3) he declined to exclude the evidence. He said that, "because of the probative value of the evidence, the importance of the evidence and the nature of the offence, the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was obtained in the way in which the evidence was obtained."
The appellant did not challenge this conclusion either in the Court of Criminal Appeal or in this Court. Even if the s 138 objection had succeeded, it would not have caused the exclusion of the first part of the 15 May 2002 conversation.
Section 137. The appellant submitted to Shaw J that the evidence should be rejected under s 137. Although the Court of Criminal Appeal did not find the matter clear, it thought that Shaw J had purported to apply s 137 in rejecting the 15 May 2002 conversation. The Court of Criminal Appeal disagreed with this outcome, on the ground that the arguments advanced to Shaw J did not justify applying s 137. One argument was that what the appellant said was not really an admission. The Court of Criminal Appeal rejected that argument on the ground that the question whether a statement by the appellant was an admission or not was a matter for the jury. Another was that the unfair prejudice caused by reception of the evidence was enormous. The Court of Criminal Appeal rejected that argument on the basis that there was no unfair prejudice arising from the probability of the jury using it for a purpose other than that for which it was tendered, or of the jury overreacting to it in an illogical or irrational manner. The only prejudice in the evidence was its capacity to prove that the appellant committed the offences, and that was not unfair.
The appellant did not rely on s 137 thereafter.
Police Commissioner's Code of Practice. The New South Wales Police Commissioner has published a Code of Practice for Custody, Rights, Investigation, Management and Evidence ("the Code"). It was in force at the material time. Amongst much else it establishes standards for questioning suspects. Before Shaw J the appellant contended, and Shaw J evidently agreed, that the Code had been contravened in that the appellant had been questioned so much after making it clear that he did not want to answer questions that the questioning amounted to "undue pressure". The Court of Criminal Appeal did not find it entirely clear whether this contravention was said to support exclusion under s 138 or s 90, but it disagreed with Shaw J: it held that even if there was a breach of the Code it was not sufficient to justify exclusion of the evidence. Neither that submission about the Code, nor any other, has since been advanced by the appellant.

Section 135. The appellant did not contend before Shaw J, James J, either of the Courts of Criminal Appeal, or this Court that his confession should have been excluded under s 135[13] of the Act.
[13]Section 135 provides:
"The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time."
The position of the appellant in summary. In relation to the first part of the 15 May 2002 conversation, the appellant has thus run, failed in and later abandoned some allegations; failed to advance others; and, to some degree, made express concessions. The resulting position is as follows. There had been compliance with s 281 of the Criminal Procedure Act, the statutory provision directed to the question of the form in which the results of official questioning may be tendered in evidence. There had been no violent, oppressive, inhuman or degrading conduct employed or threatened towards anyone, and hence there had been compliance with s 84, the provision particularly directed to interrogation methods. The circumstances were such as to make it unlikely that the truth of the admission was adversely affected, and hence there had been compliance with s 85, the provision particularly directed to unreliable confessions. The police had not acted improperly or in contravention of any Australian law (cf s 138), and in particular they had not acted improperly in failing to caution the appellant because s 139(1)(c) did not apply; hence there had been compliance with s 138, the provision particularly directed to the rejection of illegally or improperly obtained evidence. The probative value of the evidence was not outweighed by the danger of unfair prejudice (cf s 137), and was not substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or confusing, or cause or result in undue waste of time (cf s 135). There had been no breach of the Police Commissioner's Code.
Of course it is possible for accused persons to invoke s 90 successfully even if they fail to invoke, or successfully to invoke, any other ground of exclusion. The question is whether in the particular factual circumstances of this case the appellant has done so.
Uncontested factual findings
Before concluding that it was not unfair to admit the first part of the conversation in the park, James J made the following findings which are not challenged by the appellant:
"[T]he 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 ... [T]he accused understood that he did not have to say anything to the police."
He further found:
"[T]he accused would not have spoken to the police on 15 May if he had known the conversation was being recorded; ... the police knew on 15 May that the accused would not speak to police if he knew that the conversation was being recorded; ... the accused did not know that the conversation was being recorded and believed that the conversation was not being recorded; ... 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."
He found that the appellant believed on 24 April and still believed at the commencement of the conversation on 15 May that if a conversation he had with the police officers was not recorded, evidence of the conversation could not be used against him in criminal proceedings. James J found that this belief was one which the appellant had formed himself independently of anything said or done by the police officers. He found that up to the commencement of the conversation on 15 May 2002 the police officers had not set out to induce that belief in him. In these circumstances James J found that it was not unfair to use evidence of the first part of the conversation against the appellant.
The Court of Criminal Appeal was prepared to determine the appeal on the assumption that the detectives were aware of the appellant's belief. That assumption is supported by the fact that the detectives did not believe that the appellant would have talked to them if he had thought the conversation was being recorded. Detective Abdy also believed that if he gave "the second part of the caution", warning that anything said might be recorded and used in evidence, the appellant might become aware that he was being recorded, and might refuse to talk.
There is one other relevant and unchallenged finding of fact made by the first Court of Criminal Appeal, namely that the appellant "showed throughout the investigations that he was well aware of his rights and would exercise them whenever he thought it was in his interests to do so."[14]
[14]R v Em [2003] NSWCCA 374 at [69] per Howie J (Ipp JA and Hulme J concurring).
The reasoning in the courts below
It was common ground between the parties that what the appellant said in the first part of the 15 May 2002 interview included "representations", "previous representations" and "admissions" within the meaning of those expressions as defined in Pt 1 of the Dictionary to the Act; and that since the evidence was tendered by the prosecution, s 90(a) was satisfied. James J held that s 90(b) was not satisfied because nothing that happened before or during the conversation of 15 May 2002 up to Detective Abdy's p25 statement made it unfair to use evidence of what was said before then.
The Court of Criminal Appeal agreed. In particular the Court of Criminal Appeal treated the case as being one in which the detectives did no more than fail to correct a belief of the appellant's which they knew to be erroneous, namely that the evidence could not be used against him. The Court of Criminal Appeal specifically rejected a submission, which had not been put to James J, that "albeit unintentionally, prior to [Detective Abdy's p25 statement] 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."[15] The "things said and not said" on which the appellant relied before the Court of Criminal Appeal as confirmatory were four in number. The first three were[16]:
"(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 … again that the detectives did not say that anything the appellant said may later be given in evidence in court."
The fourth was[17]:
"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."
[15]Em v The Queen [2006] NSWCCA 336 at [60] per Giles JA (Grove and Hidden JJ concurring).
[16]Em v The Queen [2006] NSWCCA 336 at [61] per Giles JA (Grove and Hidden JJ concurring).
[17]Em v The Queen [2006] NSWCCA 336 at [62] per Giles JA (Grove and Hidden JJ concurring).
The Court of Criminal Appeal rejected these arguments[18]:
"[F]ailing 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 [Detective Abdy's p25 statement] 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 ... I do not think that occurred at any earlier time."
[18]Em v The Queen [2006] NSWCCA 336 at [65] per Giles JA (Grove and Hidden JJ concurring).
The appellant's arguments: the law
The appellant's first complaint is that the first part of the 15 May 2002 conversation should have been excluded on the ground that it was unfair, within the meaning of s 90, to receive it in evidence.
Central arguments. Counsel for the appellant said that the word "unfair" in s 90 was not defined in the Act, and could not be defined comprehensively and precisely. The "concept of unfairness" had "been expressed in the widest possible form" in s 90[19]. It was submitted that the court had to consider the whole of the circumstances in which the admission was made, and examine the effect of those circumstances on the fairness to the appellant of its use at the trial.
[19]R v Swaffield (1998) 192 CLR 159 at 193 [67] per Toohey, Gaudron and Gummow JJ.
The origins of s 90 lie in the Australian Law Reform Commission's Report on Evidence[20]. In the Bill annexed to the Commission's Interim Report[21], there were clauses corresponding broadly to ss 84, 85 and 138. There was no clause corresponding to the common law discretion, discussed in R v Lee[22], to exclude otherwise admissible confessions on the ground that it would be unfair to use them in evidence against the accused. The Report said[23]:
"Several commentators made the point that the Lee discretion has been used to deal with the situation where the accused has chosen to speak to the police but on the basis of assumptions that were incorrect, whether because of untrue representations or for other reasons. The [proposed equivalent to s 85] does not deal with that situation. It is concerned with circumstances affecting the truth of the admissions, not the choice whether or not to make the admission. The interim proposals included a discretion enabling the judge to exclude evidence obtained illegally or improperly. That discretion is capable of dealing with the matter but not in the way that the Lee discretion does. The Lee discretion focusses on the question whether it would be unfair to the accused to admit the evidence. The discretion to exclude illegally or improperly obtained evidence requires a balancing of public interests. It would, therefore, be less effective than the Lee discretion in the situation where the confession was obtained because the accused proceeded on a false assumption. There is a need for a discretion to enable the trial judge to exclude evidence of admissions that were obtained in such a way that it would be unfair to admit the evidence against the accused who made them. Such a discretion should be added to the proposal."
[20]Australian Law Reform Commission, Evidence, Report No 38, (1987).
[21]Australian Law Reform Commission, Evidence, Report No 26 (Interim), (1985).
[22](1950) 82 CLR 133 at 151-155 per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ.
[23]Australian Law Reform Commission, Evidence, Report No 38, (1987) at 90, par 160(b) (footnote omitted).
The draft Bill annexed to the Report contained a clause 79, which is similar but not identical to s 90. The Report said: "This clause enacts an exclusionary discretion similar to that known as ... 'the Lee discretion' in existing law."[24] The appellant did not contend that the common law and s 90 were identical, but said that they had considerable similarities, and that the common law was of some assistance in applying s 90. The appellant submitted that the primary focus of s 90 was on any incorrect assumptions made by accused persons and the reasons why they made them. The appellant submitted that the purpose of the corresponding common law discretion was "to protect the rights and privileges of the accused person."[25] Among those rights and privileges is an entitlement to remain silent (statute apart) when questioned by police officers, and hence "the accused's freedom to choose to speak to the police", and a relevant issue is "the extent to which that freedom has been impugned."[26]
[24]Australian Law Reform Commission, Evidence, Report No 38, (1987) at 234, Appendix A, par 199.
[25]R v Swaffield (1998) 192 CLR 159 at 189 [52] per Toohey, Gaudron and Gummow JJ; see also at 197 [78].
[26]R v Swaffield (1998) 192 CLR 159 at 202 [91] per Toohey, Gaudron and Gummow JJ.
Arguments not calling for decision. The appellant also submitted that the specificity of ss 84, 85 and 138 contrasted with the generality of s 90. The appellant submitted that as a result of ss 84, 85 and 138, violence and the like, unreliability and unlawful or improper obtaining are not the touchstones of "unfairness" under s 90, for otherwise s 90 would not have independent work to do. But the appellant also submitted that the factors identified in ss 84, 85 and 138 were not irrelevant under s 90 – a submission which need not be dealt with, since the appellant did not submit that what the detectives did bore any resemblance to the conduct described in ss 84, 85 and 138.
On the other hand, the appellant submitted that the factors to be weighed under s 138(3) were irrelevant to the s 90 discretion. He submitted that s 90 derived from R v Lee and s 138 from Bunning v Cross[27], and that the factors relevant to the "public policy" discretion in the latter case were quite distinct from the fairness described in R v Lee. The argument is not without support in authority[28] but one difficulty is that in R v Lee[29] Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ said:
"No question of discretion can arise unless the statement in question is a voluntary statement in the common law sense. If it is non-voluntary it is ... legally inadmissible. If it is voluntary, circumstances may be proved which call for an exercise of discretion. The only circumstance which has been suggested as calling for an exercise of the discretion is the use of 'improper' or 'unfair' methods by police officers in interrogating suspected persons or persons in custody. It was with such cases in mind that Latham CJ, in McDermott v The King[30], said that the trial judge had 'a discretion to reject a confession or other incriminating statement made by the accused if, though the statement could not be held to be inadmissible as evidence, in all the circumstances it would be unfair to use it in evidence against him.' In the same case Dixon J[31] said: 'In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused.' In our opinion the rule is fully and adequately stated in those two passages. What is impropriety in police methods and what would be unfairness in admitting in evidence against an accused person a statement obtained by improper methods must depend upon the circumstances of each particular case, and no attempt should be made to define and thereby to limit the extent or the application of these conceptions."
Their Honours thus evidently thought that police impropriety was relevant to the exclusionary discretion on which s 90 is based. However, it is possible to decide the present appeal against the appellant without engaging in the process described in s 138(3), and hence the correctness of the appellant's submission that it is impermissible to take into account the propriety of the police conduct need not be dealt with.
[27](1978) 141 CLR 54.
[28]For example, R v Swaffield (1998) 192 CLR 159 at 189 [52] per Toohey, Gaudron and Gummow JJ.
[29](1950) 82 CLR 133 at 150-151.
[30](1948) 76 CLR 501 at 506-507.
[31](1948) 76 CLR 501 at 513.
The appellant submitted that s 90 did not create a discretion, and hence that the Court of Criminal Appeal erred in applying the standard of review described in House v The King[32] that is normally applied to discretionary decisions. It is unnecessary to resolve this argument, since whatever standard of review is applied, the conclusions of James J and the Court of Criminal Appeal are correct.
[32](1936) 55 CLR 499.
The language in s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning. Whether or not the appellant was correct to submit that the primary focus of s 90 was on incorrect assumptions made by accused persons, there is no doubt that it is one focus of s 90, and it is one which is relevant to the way in which counsel submitted the appellant's incorrect assumption should be viewed. In any particular case, the application of s 90 is likely to be highly fact-specific. Certainly it is on the facts of this particular case that the result must turn.
The appellant's arguments: the facts
The way the appellant's argument was put in this Court was different from the way it was put to the first Court of Criminal Appeal. There it was[33]:
"[A]s the police knew that the accused would not answer questions if he believed the conversation was being recorded, the police intentionally tricked him into believing that the ... conversation was not being recorded and, thereby, obtained admissions that they would not otherwise have obtained but for the trick."
Now the vice is said to lie not in tricking the appellant into a belief that the conversation was not being recorded, but in exploiting the appellant's belief that it could not be used in evidence.
[33]R v Em [2003] NSWCCA 374 at [101] per Howie J (Ipp JA and Hulme J concurring).
Further, there was a divergence between the appellant's written submissions to this Court and his oral submissions. The written submissions claimed to challenge James J's finding that up to the start of the conversation on 15 May 2002 the detectives had not set out to induce the mistaken assumption that if a conversation were not recorded, evidence of it could not be given against the appellant. In support of that challenge the appellant relied on his release without charge on 24 April 2002 despite having made full admissions about the Kress home invasion and his agreement to talk to the police provided that what he said was not recorded either electronically or by notes. However, that challenge was abandoned in oral argument. In oral argument the position taken up was that the detectives had not contributed to or caused the formation of the appellant's belief; they had merely acted in a way which contributed to its continued existence.

According to counsel for the appellant, the effect of the detectives' conduct could be seen in several ways. One was the contrast between the formality of events on 24 April 2002, involving cautions and with recording machines and notebooks available, and the effect on the appellant of the informality of the discussion in the park, during which he was repeatedly told that he was not under arrest, was not to be taken to the police station and was not being tricked. Another was the contrast between the full caution given to the appellant on 24 April 2002 and the shorter version given on 15 May 2002, omitting the part relating to the recording of what was said and its possible use in evidence. Another, taken in juxtaposition with assurances that the appellant was not under arrest and was not obliged to talk if he did not want to, was Detective Abdy's statement: "We want to try and eliminate who else was involved". It was said that this "would have conveyed the message to the appellant that, outside the confines of arrest at the police station, the detectives were unable to use the conversations against him and they were instead seeking information to assist their investigation". It was said that all these circumstances "conveyed the message to the appellant that recorded conversations at the police station could be used against him in contradistinction to informal 'chats' with the police outside the station which could only be used for 'information purposes' when conducting investigations regarding the involvement of others."
A somewhat different, perhaps inconsistent, submission was also advanced. It was that on 24 April 2002 the appellant had stipulated that he would only speak if the detectives agreed not to record electronically or write down what was said, to which the detectives agreed, and that they demonstrated continuing agreement to the terms of their dealings by releasing him without charge even though he had made a full confession to the Kress home invasion. Hence if they wished to alter the terms of those dealings, rather than assuring him that he was free to leave, they should have made the alteration very clear on 15 May 2002. It was submitted that the prosecution should not be allowed to take advantage of a departure from those terms.
The appellant also relied on a claim that he had been "pressured to speak".
The appellant's arguments: analysis
Pressure? The last submission can be rejected at once. It is true that the detectives tried by various means to get the appellant to talk to them about the January crimes. But, as James J found without challenge at either level of appeal, the appellant was not under arrest, and the detectives had not given the appellant reasonable grounds for believing that he would not be allowed to leave if he had wished to. A reading of the whole of the recorded conversation up to Detective Abdy's p25 statement confirms the correctness of James J's finding that the questioning was not hostile, overbearing, unduly persistent, confusing or too leading. That finding was not challenged, and it is fatal to the submission that the detectives pressured the appellant to speak.
The appellant's subjective mental state. At common law[34], the onus of demonstrating that it would be unfair to accused persons to use the evidence lay on them. The onus lies in the same place under s 90[35].
[34]R v Lee (1950) 82 CLR 133 at 152-153 per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ.
[35]Compare ss 84 and 85, where the burden of proving the facts necessary for admissibility rests on the prosecution.
The appellant's submissions depend to a considerable extent on whether the police conduct "conveyed" or "would have conveyed" any particular "message", on the effect on the appellant of any contrasts between the behaviour of the detectives on 24 April 2002 and their behaviour on 15 May 2002, and on the idea that the detectives "confirmed" the appellant's belief. In this respect the submissions face the difficulty that these are allegations going to the appellant's subjective mental state. All that can be concluded about that mental state depends on circumstantial inference. Here circumstantial inference falls well short of the best evidence, direct evidence from the appellant. The appellant's failure to give evidence on the voir dire thus increased his difficulties in discharging the onus of proof. An example is afforded by the appellant's argument that after leaving the police station on 24 April 2002 he believed the police would not be charging him because of an agreement he had made with them not to use what he had said to them. That that was his mental state is contradicted by an admission in his evidence in chief that after he returned home on 24 April 2002 he thought he "was going to be charged, arrested and taken away to gaol."
Contrary to the appellant's submissions, it cannot be concluded that the police reinforced or contributed to the continuation of the appellant's mistaken assumption that what he said could not be used against him. The reasons why that is so are that once it was clear that the appellant believed that what he said could not be used in criminal proceedings, there is no evidence that he turned his mind to the question again, or that he had any doubt about it which might cause him to question it, or that he had any desire to search for confirmation.
The effect of the appellant's concessions. It follows from concessions which the appellant necessarily and rightly made that the use against him of the first part of the 15 May conversation was not unfair.
The appellant accepted that the mere fact that a conversation was being secretly recorded was not sufficient to make it "unfair" to the defendant to admit the recording into evidence. Yet decisions to record conversations with a particular accused person secretly are made because no recording would be possible if that accused person knew of the recording. Thus secret recordings often could not be made without some kind of trickery – a positive representation or conduct suggesting, and leading to the false assumption, that there was no recording being made, a deliberate failure to correct that false assumption, or conduct confirming that false assumption.
The scheme of the Listening Devices Act 1984 (NSW), pursuant to which the detectives made their recordings, is that by reason of ss 5 and 10 it is a criminal offence to record a private conversation without consent of all parties unless an exception applies. The relevant exception is a warrant granted by an "eligible Judge" pursuant to the various safeguards set out in s 16. If no exception applies, evidence of the private conversation is inadmissible (s 13). This implies that if an exception applies, the evidence is admissible subject to the general law of evidence.
Hence the appellant's concession that if his mistaken assumption consisted only in a belief that the conversation was not being recorded its use in evidence would not be unfair was rightly made. To reach the opposite conclusion would be for the judiciary, by exercise of its capacity to reach a judgment characterising conduct as "unfair" under s 90, to create an automatic and universal rule of exclusion in place of a provision calling for case-by-case judgment. For the courts to adopt such a rule would be to substitute their view about the merits of the statutory scheme involving judicially sanctioned covert surveillance as an aid to the detection of crime for that which has been adopted by the legislature.
It is true that the appellant's mistaken assumption went beyond a belief that the conversation was not recorded to a belief that evidence of the conversation could not be given. And counsel for the appellant submitted that there was a "big difference" between speaking while falsely assuming that no recording was being made of what was said, and speaking while falsely assuming that what was said could not be used in criminal proceedings. The difference was said to be that in the former instance, accused persons would assume that, although the admission was unrecorded, police officers who heard it could give oral evidence of it. This would give accused persons the "limited benefit" of being able to advance an argument about the unreliability of the police evidence of what was said. In the second instance, ex hypothesi they could not: if accused persons falsely believed that what they said could not be used in evidence, "a very significant factor in exercising [their] right to silence is missing."
One difficulty with the submission is that it attributes improbably subtle reasoning to the appellant, which cannot be inferred from the circumstances and which is unsupported by testimony from the appellant. But the most fundamental difficulty with the submission is that the appellant's belief that evidence of the conversation could not be given was integrally connected with his belief that the conversation was not being recorded. That is because, as counsel for the appellant said: "[T]he appellant incorrectly assumed that the conversation was not being electronically recorded and, as a result, incorrectly assumed that anything he said could not be used in evidence." (emphasis added) To conclude that while it is not unfair to use an admission which its maker did not believe was being recorded, it is unfair to use an admission which its maker did not believe could be used, when the reason for the second false assumption is the existence of the first, is illogical.
The reliability of the evidence. At one point the appellant conceded that, as at common law, the reliability of evidence was a factor affecting the fairness of its use. Later the appellant withdrew that concession, and later still the appellant denied that the concession had ever been made. The appellant's final position appeared to be that it was irrelevant to the application of s 90 that the impugned evidence was reliable, although s 90 was capable of being triggered by conduct falling short of that described in s 85 but creating the risk of an unreliable confession.
The appellant's original concession was correct. It is supported by common law authority[36]. Indeed in R v Swaffield[37] Toohey, Gaudron and Gummow JJ said: "Unreliability is an important aspect of the unfairness discretion but it is not exclusive." Here the evidence was completely reliable in that there is no doubt about what the appellant said: the recording device worked efficiently. The appellant advanced only one reason why what he said was unreliable, and it was a contention put forward in the appellant's evidence at the trial. The contention was that the appellant falsely told the detectives of his involvement with the crimes in order to protect his friends. This does not reveal error in James J's decision to admit the evidence for two reasons. The first is that since the appellant did not give evidence on the voir dire, the contention was not before James J at the moment when the evidence was admitted. The second is that while ultimately the acceptability of the appellant's contention was for the jury, it lacked plausibility to a very significant degree. Not only is it the case, as James J found without any present challenge by the appellant, that the circumstances were such as to make it unlikely that the truth of the admissions was adversely affected, but even if the appellant's contention had been advanced in evidence on the voir dire, it could not have caused James J to regard the reliability of what the appellant said as suspect. It is highly implausible that anyone fearing prosecution for murder would admit to the murder in order to protect unnamed friends.
[36]R v Lee (1950) 82 CLR 133 at 153 per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ; R v Swaffield (1998) 192 CLR 159 at 189 [54], 195 [71], 196 [74], 197 [77]-[78] per Toohey, Gaudron and Gummow JJ.
[37](1998) 192 CLR 159 at 197 [78].
Did the courts below misdirect themselves? The appellant submitted that it was not necessary for a finding of unfairness under s 90 in circumstances similar to the present for police officers deliberately to induce a person being questioned to hold an erroneous belief. The appellant also submitted that James J and the Court of Criminal Appeal wrongly assumed that this was crucial. So far as James J is concerned, the submissions put to the Court of Criminal Appeal and the somewhat different submissions put to this Court were not put to him. The question he dealt with appears to have been that which the parties were content for him to deal with, and where a conception as amorphous as "unfairness" is under consideration, it was not an error to fail to depart from the course they charted. Further, as the Court of Criminal Appeal pointed out, James J considered the whole of the circumstances and did not limit his attention to the detectives' intention[38]. So far as the Court of Criminal Appeal is concerned, it did not require that the appellant's mistaken assumption be caused by deliberate inducements by the detectives. It did not concentrate on the mental state of the detectives, but instead, after recording the appellant's submissions as set out above, rejected them. The Court of Criminal Appeal's references to the fact that whatever effect the conduct of the detectives had on the appellant's state of mind, it was unintentional, merely mirrored the appellant's submissions[39]. Its method, which conformed to the parameters set by those submissions, objectively analysed what the detectives did and whether that tended to confirm the appellant's mistaken assumption. It did not rest on the flaw which the appellant attributed to it.
[38]Em v The Queen [2006] NSWCCA 336 at [58]-[59] per Giles JA (Grove and Hidden JJ concurring).
[39]Em v The Queen [2006] NSWCCA 336 at [60] and [66] per Giles JA (Grove and Hidden JJ concurring).
The significance of the park. The mere fact that the recording of the conversations was made in a park and not a police station cannot make it unfair to admit it into evidence. Section 281 of the Criminal Procedure Act requires confessions to be recorded; it does not require them to be recorded in a particular place, and many admissible confessions are made in places other than police stations. No provision in the Evidence Act or in any other statute requires them to be recorded in a particular place. Nor does the Police Commissioner's Code. The conduct of the detectives cannot be seen as undermining the statutory regime in s 281 and its equivalents elsewhere requiring confessions to be recorded. That is so partly because the appellant eschewed any such point as relevant only to s 138, on which he was not relying; and partly because whatever other criticism could be made of the detectives, they cannot be criticised for failing to comply with s 281: they did comply with it.
The analogy with mistake in equity. The appellant's argument endeavoured to extend to s 90 a principle permitting a court of equity to rescind a contract where one party entered it under a mistake deliberately not corrected by the other[40]. That extension should not be made for the following reasons. Section 356M(1)(a) of the Crimes Act as it stood at the relevant time made it mandatory for police officers to warn persons being questioned that what they said could be used in evidence. Section 139(1) of the Act rendered a failure to give that warning a ground for excluding the evidence under s 138. The Police Commissioner's Code reflects the same requirements[41]. In the circumstances of this case there was no express obligation of any kind on the detectives to warn the appellant that anything he said could be used in evidence. The appellant has not established that an implied obligation to have done so should be created by recourse to the doctrine of "unfairness" in s 90. It would be unusual to do so where the legislature had chosen not to do so; to do so would be to make a choice that the legislature had specifically declined to make.
[40]Taylor v Johnson (1983) 151 CLR 422 at 432 per Mason ACJ, Murphy and Deane JJ.
[41]At 48.
Counsel for the appellant submitted that it was unfair to permit the reception of evidence obtained from the appellant where the appellant was operating under a disability – a significant mistake of which the detectives were aware. The difficulty is that every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute, and a mistake of the kind the appellant was operating under was simply a species of ignorance or stupidity.
Was the appellant's freedom to speak or not to speak impugned? In one formulation, the appellant's submissions identified as the central question whether his freedom to speak or stay silent had been impugned in the first part of the 15 May 2002 conversation. When all the circumstances analysed above are considered, it is impossible to conclude that that freedom was impugned. The appellant knew he was speaking to police officers. He knew they were investigating two home invasions, one involving a murder. He knew, having been cautioned several times on 22 February and 24 April 2002, that he was not obliged to speak to the police officers. He spoke to those officers knowingly and willingly. He gave a version of events. In his evidence before the jury he claimed that he planned to give that version – according to him, a non-incriminating mixture of denials, admissions, lies, evasions, jokes and questions[42]. Apart from the admissions he made, that account of the version of events lacked credibility, but he certainly wanted his version of events to be accepted by the detectives. He had an awareness of his rights and a capacity to act on them. While s 281 compelled the detectives to record what was said if they wanted to tender it, the appellant possessed no right not to be recorded once the listening device warrants had been obtained from O'Keefe J. The appellant was free to leave. The questioning was not overbearing. As counsel for the appellant conceded, neither legislation nor the Police Commissioner's Code created any obligation on the detectives to caution him. The appellant did not know the conversation was being recorded, but he accepted that that did not make it unfair to receive the evidence. The appellant did not contend that he spoke because of any threat of violence, or any illegality, or any impropriety. He did not contend that the circumstances were likely to affect the truth of the admissions. He thought that the conversation could not be used against him in criminal proceedings, but that cannot of itself make it unfair for the conversation to be received in evidence. The detectives kept secret from him the fact that the conversation was being recorded, and hence his freedom to speak was affected in the sense that a factor that was important to him was kept secret from him. But that is true of virtually all cases of lawfully authorised secret surveillance. Virtually all persons who are the subject of that type of surveillance have been deprived of the opportunity to make an informed choice about whether or not to exercise their right of silence. It is difficult to see the practical difference, for this appellant, between speaking where his freedom of choice to speak was impaired by ignorance about the fact that what he said was being recorded, and speaking where his freedom of choice to speak was impaired by ignorance about the fact that what he said could be used against him. He did not speak on 24 April 2002 until it was made clear that what he said would not be used against him since it was not being recorded; his decision to speak on 15 May 2002 where he thought what was being said was not being recorded was governed by a mental state in which the supposed lack of recording was inextricably linked with the supposed incapacity to use the material.
[42]See below at [85].

In my own reasons in Swaffield, I also referred to the principles stated in Van der Meer[127]. I made reference by way of comparison to s 90 of the Uniform Evidence Acts, even though it was not there applicable[128]. I acknowledged that s 90 "reflects the common law unfairness discretion" and permitted changing social circumstances to be considered[129]. In discussing such changing circumstances, I accepted that "[m]odern surveillance technology and covert police operations are potentially effective means for [bringing wrongdoers to justice]"[130].
[127](1998) 192 CLR 159 at 211 [129].
[128](1998) 192 CLR 159 at 211 [130].
[129](1998) 192 CLR 159 at 211 [131].
[130](1998) 192 CLR 159 at 217 [147].
After reviewing overseas authority, I remarked[131], in words to which I adhere (and which were cited in the second Court of Criminal Appeal in these proceedings[132]):
"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 an 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 … 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 … in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent." (footnotes omitted)
[131]Swaffield (1998) 192 CLR 159 at 220-221 [155].
[132][2006] NSWCCA 336 at [74].
Swaffield, like this case, involved the secret recording of a conversation by an undercover police officer who, in disregard of the relevant Judges' Rules in Queensland, did not administer any caution at all to the suspect. The entire Court in that appeal concluded that the accused's admissions had rightly been rejected by the intermediate court. The joint reasons decided that this was so because the police conduct had impugned the suspect's freedom to choose whether to speak to the police or not. My own reasons represented a variation of the same principle. Consistency with the Court's approach in Swaffield requires that principle also to be applied in this appeal.
Conclusion: the meaning of s 90:The unfairness provision in s 90 of the Act was clearly intended to confer a "power or discretion" on a court in criminal proceedings to reject prosecution evidence that was at least as broad as that provided by the previous common law. It may even be that s 90 casts a wider net[133]. For the purpose of deciding this appeal, it is unnecessary to resolve that question. Whilst the several provisions of the Act governing the exclusion of evidence may overlap in particular circumstances, each provision, when invoked, should be applied according to its own terms.
[133]cf Swaffield (1998) 192 CLR 159 at 193 [67], 211 [131].
The history of s 90 demonstrates that the section was preserved, and intended to apply, so as to address a particular and well-identified problem. It would be a serious departure from the text, inimical to the purposes of s 90, to impose on its broad language restrictions imported from the language of other exclusionary provisions in the Act. Essentially, that was the mistake that undermined the validity of the decision of Shaw J on the s 90 issue. It is a mistake that this Court should itself avoid. It would be no more tolerable to gloss s 90 by deliberate implication than to do so by a verbal slip, which is all that appears to have occurred in the reasoning of Shaw J.
There is nothing in the language, history or purpose of s 90 that would licence overlooking the statutory objective of protecting criminal suspects against unfairness in favour of other concerns (such as the need to clear up a serious murder where the accused has repeatedly insisted to police on his right to silence).
Application of s 90 in this appeal
Standard of review: The second Court of Criminal Appeal considered that, in reviewing the exclusionary ruling of James J, it was subject to the constraints that House v The King[134] imposes on appellate review of "discretionary" decisions[135]. As already indicated, that was an error. Whether the function of the court under s 90 is described as involving a "power" or a "discretion" does not matter. Clearly, the judgment required is an evaluative one. This suggests that the appellate court should not ignore the antecedent exercise of the "power or discretion" or any advantages that the earlier court(s) enjoyed in making the contested decision.
[134](1936) 55 CLR 499.
[135][2006] NSWCCA 336 at [78].
However, if, having reviewed all the circumstances, the appellate court comes to a firm conclusion that the admission of the challenged evidence "would be unfair to a defendant", it would be unthinkable that it would then deny relief and ignore the unfairness. The fundamental obligation of the Court of Criminal Appeal is to determine whether or not "there [has occurred] a miscarriage of justice"[136]. In a case such as the present, the appellate task is akin to that presented when a challenge is made to a judge's ruling that particular evidence is "relevant"[137]. The court acknowledges the function of the original decision-maker, and makes full allowance for the advantages he or she had in the circumstances. But, if it reaches a firm conclusion of its own, it is required to give effect to that conclusion. It is not subject to restraint on the basis that the decision is "discretionary" in the sense that, say, a decision to grant an adjournment, to award costs or to order security clearly is.
[136]Criminal Appeal Act 1912 (NSW), s 6(1).
[137]cf Smith v The Queen (2001) 206 CLR 650.
Even if this view of the "power or discretion" in s 90 were incorrect, and the decision under the section was to be classified without qualification as a "discretionary" one, a clear conclusion that to admit evidence would be "unfair" to the defendant would allow a finding of error of the innominate kind, occasioning a miscarriage of justice. It would authorise appellate intervention as, in my view, is required here.
Uncontested considerations: To explain why use of the contested evidence would be unfair to the appellant, it is not necessary to engage in sophisticated reasoning. Decisions of the kind presented by s 90 often have to be made quickly, even instantaneously, in the course of the running of a criminal trial by reference to all the facts and circumstances as then known.
I will not delay in this analysis to contest a number of the propositions endorsed in the reasons of other members of this Court, who reach a conclusion opposite to my own. I am prepared to concede that the mere fact that a conversation with a suspect is secretly recorded does not alone make later use of any admissions contained in the recording "unfair" to the suspect[138]. I also accept that the existence of warrants under the Listening Devices Act militates in favour of a secret recording of a private conversation comprising admissible evidence[139]. However, such a warrant does not absolve a court of the obligation to decide, in accordance with s 90, whether particular evidence adduced in criminal proceedings should be excluded as unfair to a defendant. In granting such a warrant, a judge has no means of anticipating later unfairness to a defendant arising out of attempted use of the recorded evidence and the way the questioning proceeds.
[138]Reasons of Gleeson CJ and Heydon J at [67].
[139]cf reasons of Gleeson CJ and Heydon J at [68].
I accept that, for example, the administration of a defective caution to a suspect does not give rise to a "right" to the exclusion of subsequent recorded evidence[140]. The unfairness to which s 90 refers must be found taking into account all the circumstances relevant to the procurement of the impugned admissions.
[140]cf reasons of Gummow and Hayne JJ at [119].
I agree that it would be a mistake to attribute over-subtle reasoning to the appellant[141]. However, there is a clear and not particularly subtle distinction between a belief (often correct) that unrecorded evidence of admissions to police cannot be used in a subsequent criminal trial and a false assumption (encouraged by things said and done by police) that on a particular occasion police were not in fact recording a conversation.
[141]Reasons of Gleeson CJ and Heydon J at [71].
I will not consider postulated analogies to mistakes in equity[142]. Taking into account matters of that kind would gloss the statute and divert the court's attention from the judgment it must make as to "unfair[ness] to a defendant". I agree that such unfairness could arise because the circumstances in which an admission was made render it unreliable[143]. However, as noted above, it was recognised in Lee, and confirmed in other cases down to Swaffield, that reliability is "not … the sole touchstone" of unfairness[144]. In the present case, the fact of the sound recording would seem to preclude challenge to the reliability of the record of the May conversation. However, it is not the case that every electronically recorded admission, whenever and however made, is ipso facto admissible. Section 90 demands consideration of "the circumstances in which the admission was made". The fact that the admission is recorded is only one such "circumstance".
[142]cf reasons of Gleeson CJ and Heydon J at [76]-[77].
[143]Reasons of Gleeson CJ and Heydon J at [73].
[144]Swaffield (1998) 192 CLR 159 at 189 [54].
It remains for the court to evaluate the proposed "use [of] the evidence" in the context of "criminal proceedings". The answer is not supplied by a judgment as to the motives of the detectives in adopting the course of conduct that they did. It may be accepted (as all the judges below agreed) that Detectives Abdy and McLean were frustrated, and anxious to secure evidence to solve a most serious crime. However, the governing consideration is not whether the detectives deliberately intended to deprive the appellant of his right to a fair trial. It is whether their conduct had that effect in the proceedings in which the contested evidence was admitted.
I consider that the conduct did have that effect. To explain why, it is necessary for me to refer to five important considerations.
Omission of a full caution: The most important consideration favouring the conclusion that use of the contested evidence was unfair to the appellant was the detectives' intentional failure to administer to him the second part of the caution set out in the Police Code of Practice. That caution includes the following warning: "We will record what you say or do. We can use this recording in court. Do you understand that?"
There is nothing unusual in the second part of the caution. Giving such a caution is a regular feature of police practice in dealing with suspects, in Australia and in other common law countries. It is therefore a feature that will be normal in conduct anterior to "a criminal proceeding" to which s 90 of the Act applies. It recognises a suspect's "right to silence" and the character of an accusatorial trial. The rights of suspects in this respect are not to be undermined by courts unless derogation is expressly authorised by Parliament.
The failure of the detectives to administer the second part of the caution to the appellant was incontestably a conscious one. It rested in the detectives' fear that, had the caution been given, the appellant would have said nothing, as was his legal right. For the purposes of s 90 of the Act, the vice of the incomplete caution did not lie in the detectives' deliberate transgression of the Police Code of Practice. Rather, it lay in their resulting failure to alert the appellant, whom they had under their control, to a vital consequence of continuing the conversation into which he had been drawn.
The importance of the second part of the caution has been explained in many cases. In Miranda v Arizona[145], the Supreme Court of the United States explained:
"The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make [a suspect] aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system – that he is not in the presence of persons acting solely in his interest."
[145]384 US 436 at 469 (1966) (emphasis added).
Although these remarks were made in the context of the requirements of the Fifth Amendment to the United States Constitution, they usefully explain the purpose of the caution obliged, in Australia, by both Judges' Rules and Police Instructions or Codes of Practice. In New South Wales, the caution might not be required under binding legislation. However, it is incontestable that it represents an established feature of police practice. It is founded on what is by now a "fundamental rule of the common law"[146]. It reflects the recognition, as noted in the Police Code of Practice, that[147]:
"If you fail to caution at the appropriate time, or if the suspect does not fully understand it, any subsequent conversation or admission might be ruled to be improperly obtained and inadmissible. Particular care should be taken in relation to vulnerable persons."
[146]Petty (1991) 173 CLR 95 at 99.
[147]At 48.
In the present case, the detectives were quite aware of their obligation to give the appellant a full formal caution. At the beginning of the May conversation, they reminded him of the "piece of paper" they had given him in April. Notwithstanding this, their oral caution was limited to an intimation that "the same [went] again" in that the appellant "didn't have to say anything to the police". The omission of the second part of the caution was significant. It was clearly intended to influence the appellant's thoughts and actions. It was knowing, apparently carefully planned and, in the result, effective.
If it was necessary on 15 May 2002 to repeat the first part of the caution, it was equally necessary to repeat the second part. Either this Court is serious about the right to silence and the need for police and like officials to caution suspects about the incidents of that right, or it is not. To condone the consequences that flowed after providing half a caution is, in effect, to accept that giving half the caution is adequate and the deletion of the other half results in no unfairness to a suspect.
Recognising that millions of cautions containing both parts of the specified warning must have been administered over many decades, in this country and elsewhere, I find it impossible to brush aside the intentional administration of an incomplete caution to the appellant on the part of Detectives Abdy and McLean, both sworn officers of police. I acknowledge their frustrations. I am willing to accept the sincerity of their objectives. But if their conduct on this occasion is vindicated by this Court, we must face the reality that what they did will be repeated. By condonation, it may well become a common or general practice. I will not willingly accept that development. It carries with it the seeds of the destruction of a suspect's right to silence and the undermining of the accusatorial character of criminal proceedings.
Before leaving this point, I would note that it would be incorrect to infer, if that is what is intended, that counsel for the appellant conceded that there was no obligation on the part of the detectives to caution the appellant[148]. To the contrary, it was a repeated theme of the appellant's submissions to this Court that a caution was required when the May conversation commenced and that it had to be the full caution, not just the first half.
[148]Reasons of Gleeson CJ and Heydon J at [78].
In this Court, the obligation to caution was expressly argued for the appellant to be one "arising from the circumstances of this case"[149]. Moreover, as was acknowledged from the Bench at the time this argument was put (encapsulating what was being submitted), "you either give it all or you give nothing. A misleading character, in a way, arises from giving half of it."[150]
[149][2007] HCATrans 142 at 39.
[150][2007] HCATrans 142 at 39.
Trickery and informed choices: The foregoing conclusion is reinforced by the fact that trickery was used by the detectives to overcome the appellant's obvious initial unwillingness to speak about the Logozzo home invasion, and to deprive him of an "informed choice" as to whether to make admissions or not to speak until appearing in court with the benefit of legal advice.
The detectives arrived at the appellant's home and took him for what was presented as an informal chat in a public park on a specific and limited subject. They repeatedly emphasised that he was "not under arrest" and "not going to … the police station". They reassured him on a number of occasions that he was not being "tricked" or "conned". It was not, therefore, a neutral conversation with public officers in which he was allowed to say what he wished. It involved a course of conduct consciously designed to deceive the appellant into believing that he was engaged in an off-the-record conversation[151]. The detectives' reference to his earlier interview with them, following which he had not been arrested but released, renders still more apparent the unfairness of the trickery. It compounds the unfairness occasioned by the administration of only half of the official caution. Necessarily, the deception influenced everything that the appellant then proceeded to say and do in the course of the May conversation. It caused the attempted use of admissions contained in that conversation (including the first part thereof) to be unfair to the appellant. It violated the appellant's right in law to choose whether or not to make admissions that would later be used against him in his trial[152]. It engaged the application of s 90 of the Act.
[151]cf Cleland v The Queen (1982) 151 CLR 1 at 13; R v Oickle [2000] 2 SCR 3 at 42-43 [68].
[152]Swaffield (1998) 192 CLR 159 at 201 [89]; cf Blackburn v Alabama 361 US 199 at 207 (1960) quoted Oickle [2000] 2 SCR 3 at 43-44 [70].
Selection of the park venue: Of itself, the fact that the meeting with the detectives on 15 May 2002 took place in a suburban park might seem innocuous. However, given the context, the detectives' selection of that venue for their second extended conversation with the appellant was far from so. Indeed, it was part of the deliberate deception designed to emphasise in the appellant's mind the distinction between a formal interview at the police station and an off-the-record chat in the park.
The detectives' repeated statements throw this fact into sharp relief: "[Y]ou don't want to go to the cop shop and talk"; "[W]e didn't even take you to a police station … we're not trying to trick you or anything"; "We've brought you to a God damn park. We're not, we haven't got you in the police station."

Whilst trickery, deception and covert operations are an inevitable part of modern policing, the detectives' conduct on 15 May 2002 transgressed the threshold of acceptable police investigative behaviour in a material respect[153]. It rendered unfair the reception and use in criminal proceedings of the appellant's subsequent admissions. In effect, it deprived the appellant of his right to silence.
[153]cf Tofilau [2007] HCA 39 at [188].
With all respect, it is impossible to reconcile the outcome favoured by the other members of this Court in this case with the unanimous conclusion reached in Swaffield. Even if what the detectives did here was not illegal as such, there remains "the broader question" of whether it "was in violation of" the appellant's "right to choose whether or not to speak to the police"[154]. In Swaffield, no caution at all was administered. Here, the caution administered was incomplete, and even its limited effectiveness was undermined through trickery and deception, including that arising from the non-official venue chosen for the conversation.
[154]Swaffield (1998) 192 CLR 159 at 202 [94]. See also at 224-225 [165].
It is true, as Gleeson CJ and Heydon J point out, that many admissions are made by suspects at venues other than police stations[155]. However, this was not a case in which an admission was spontaneously volunteered or accidentally blurted out in an unexpected place. It is obvious that the detectives selected the park as a venue with a view to deceiving the appellant. It assisted them to deprive him of a free choice to speak to the police about the Logozzo offences. It denied him the right that he asserted in the April conversation to withhold his version until he was on trial in a court. As in Swaffield, the resulting admissions ought to have been excluded to avoid unfairness to him. This Court should so order so as to vindicate the appellant's right to silence, out of which he was tricked.
[155]Reasons of Gleeson CJ and Heydon J at [75].
Rejecting an unconvincing discrimen: My conclusion is further reinforced by what was the unconvincing discrimen that led to James J's exclusion of part only of the May conversation as from p 25 of the record. It was at that page that Detective Abdy reassured the appellant:
"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?"
Understood in its context, this was but one in a long series of reassurances by the police designed to distinguish an inferentially recorded conversation at the police station from a purportedly unrecorded off-the-record chat in the park. Statements to the appellant to the effect that "you might feel better if you tell us" and "one of these days you're gunna have to want to talk about it" were not significantly different from the pseudo-ingratiation with which the earlier 25 pages of the conversation were replete. If the "circumstances in which the admission was made" were such as to make it unfair to the appellant to use the evidence following p 25, the unfairness was, in my view, established long before the exchange recorded on that page. It was erroneous and artificial to choose the passage on p 25 as the point after which the record became inadmissible when that record was the product of a tactic that was unified, well planned and designed to procure the precise admissions that it did.
Ignorance and stupidity: Finally, there is a statement in the reasons of Gleeson CJ and Heydon J with which I disagree.
Gleeson CJ and Heydon J state that "every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute"[156]. Their Honours suggest that the appellant's incorrect belief about the availability of any admissions in the May conversation at a trial was simply a species of such "ignorance or stupidity". This approach implies that the educated and the clever enjoy a special position under the law which the ignorant and stupid do not. I could never agree with such a view.
[156]Reasons of Gleeson CJ and Heydon J at [77].
It is true that a well-advised, clever accused would probably not have gone to a park with detectives expecting to engage in an off-the-record conversation in such a place. Indeed, in all likelihood, no attempt would have been made to deceive and trick such a person, or to administer to him or her only half of the official police caution.
However, the law, including the Act, exists to protect all defendants in criminal proceedings against relevant unfairness, not just the educated and the clever. The law is not silent for vulnerable people who are "ignorant" about their rights and who are regarded as "stupid". This point was made by this Court in 1950 in a powerful passage in Lee[157]:
"It is, of course, of the most vital importance that detectives should be scrupulously careful and fair. The uneducated – perhaps semi-illiterate – man who has a 'record' and is suspected of some offence may be practically helpless in the hands of an over-zealous police officer. The latter may be honest and sincere, but his position of superiority is so great and so over-powering that a 'statement' may be 'taken' which seems very damning but which is really very unreliable. The case against an accused person in such a case sometimes depends entirely on the 'statement' made to the police. In such a case it may well be that his statement, if admitted, would prejudice him very unfairly. Such persons stand often in grave need of that protection which only an extremely vigilant court can give them. They provide the real justification for the Judges' Rules in England and the Chief Commissioner's Standing Orders in Victoria, and they provide … a justification for the existence of an ultimate discretion as to the admission of confessional evidence."
As far as I am concerned, nothing has changed in this respect since 1950. The expansion of covert police operations and techniques only heightens the continuing force of what the Court then said[158].
[157](1950) 82 CLR 133 at 159.
[158]Tofilau [2007] HCA 39 at [203].
To adapt the words of Tobriner J in People v Dorado[159], to limit the protection s 90 of the Act offers to defendants who are "stupid and ignorant" would be "to favor the defendant whose sophistication or status had fortuitously" made the need for protection unnecessary (or less necessary) in that defendant's circumstances. That could not be the purpose of s 90, and that provision should not be applied as though it were.
[159]398 P 2d 361 at 369-370 (1965) quoted Miranda 384 US 436 at 471 (1966).
Conclusion on application of s 90: In the light of the reasoning in Swaffield, it cannot seriously be suggested that a failure to provide a caution, whether contemplated by the Judges' Rules or a Police Code of Practice, is irrelevant to the fairness to the defendant of the use of evidence gathered after that failure. This is so whether no caution at all was administered (as in Swaffield) or whether the caution was only half given and then undermined by deception, tricks and the venue chosen for the conversation (as was the case here). The result is the same. The consequent admissions are subject to exclusion as their use would be unfair to the defendant. This Court should be consistent in its approach to such defaults. It should visit them with similar consequences.
Conclusions
Exclusion of evidence and acquittal: For the foregoing reasons the decision of James J to admit the first 25 pages of the May conversation was erroneous. Having regard to the circumstances in which the admissions recorded in those pages were made, it was unfair to the appellant to permit their use.
The appellant sought to have the evidence excluded pursuant to the power or discretion that s 90 of the Act confers. Shaw J was correct to conclude that the evidence should have been so excluded, although in his reasons he incorrectly included a reference to immaterial considerations. When the first Court of Criminal Appeal identified this error, it should have conducted its own analysis of the record, and concluded that s 90 of the Act applied nonetheless. When it failed to do so, James J should have so ordered. Because his conclusion gave rise to a miscarriage of justice affecting the appellant, the second Court of Criminal Appeal erred in failing to correct it. The suggested discrimen for permitting the evidence before, but rejecting it after, p 25 of the record was insubstantial and unconvincing.
In his notice of appeal to this Court, the appellant at first sought an order for a retrial. However, in the course of oral argument, counsel for the prosecution conceded that, absent the evidence of the admissions made by the appellant on 15 May 2002, the case against him in respect of the Logozzo offences was insufficient to justify a retrial[160]. Necessarily, that concession precluded any later application of the "proviso" in the matter[161]. That this is the case serves to emphasise the grave consequences of the unfairness to the appellant occasioned by the course that the detectives embarked upon on 15 May 2002.
[160][2007] HCATrans 142 at 75.
[161]Criminal Appeal Act 1912 (NSW), s 6(1).
The appellant remains convicted of the Kress offences, to which he pleaded guilty. He must serve the sentences imposed on him in respect of those offences. However, the convictions entered and sentences imposed in respect of the Logozzo offences cannot stand. In light of the prosecution's concession, a new trial should not be ordered.
Adhering to established law: Self-evidently, resolving a serious murder is a matter of very high public importance for any society. However, s 90 of the Act (as well as the antecedent common law) provides that such resolution may not be achieved by reliance on admissions procured in circumstances that render their use unfair to the suspect[162]. In evaluating fairness courts must take into account a suspect's right to silence and the concomitant entitlement "to choose whether or not to speak to the police"[163]. As the Supreme Court of the United States has recognised[164]:
"The quality of a nation's civilization can be largely measured by the methods it uses in the enforcement of its criminal law."
[162]cf Tofilau [2007] HCA 39 at [148].
[163]Swaffield (1998) 192 CLR 159 at 202 [94].
[164]Miranda 384 US 436 at 480 (1966) quoting Schaefer, "Federalism and State Criminal Procedure", (1956) 70 Harvard Law Review 1 at 26.
Necessarily, by its decisions, this Court sets the standards for police interrogation of suspects in this country. We are either serious or not serious about upholding the basic principles of the accusatorial trial; the "fundamental rule" of the accused's right to silence; and the privilege to speak only after a full and proper police caution is administered. The inference is becoming inescapable that despite a long line of decisions including McDermott, Lee, Petty, and Swaffield this Court has shifted its direction[165]. It is not now resolved to preserve the previously stated values. Such an alteration to the law is not warranted by the language of s 90 of the Act. It is not justified by analogical reasoning from basic common law principles. In my view, such a change should not be made by the Court but only by Parliament, accepting the seriousness of the step that is then taken, and imposing its own alternative restrictions and protections for the rights of suspects.
[165] Tofilau [2007] HCA 39 at [203]-[209].
Orders
The appeal should be allowed. The orders of the Court of Criminal Appeal of New South Wales dated 3 November 2006 should be set aside. In place of those orders, this Court should order that the appellant's appeal to that Court be allowed. The subject convictions should be quashed and in their place a judgment of acquittal should be entered in respect of the relevant counts of the indictment.