Lauchlan v Western Australia - [2008] WASCA 227

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LAUCHLAN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 227

CORAM: BUSS JA
MILLER JA
MURRAY AJA

HEARD: 23 SEPTEMBER 2008

DELIVERED : 7 NOVEMBER 2008

FILE NO/S: CACR 148 of 2006

BETWEEN: DARREN BRADLEY LAUCHLAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :EM HEENAN J
Citation  :THE STATE OF WESTERN AUSTRALIA -v- LAUCHLAN & ANOR [2005] WASC 266
File No  :INS 101 of 2004

Catchwords:

Criminal law - Evidence - Confessions and admissions - Whether voluntary - Undercover police operation - Whether person to whom confession made a person in authority - Whether confession procured by inducement - Whether discretionary grounds for exclusion

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(a)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr B Fiannaca SC

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Cornelius v The King (1936) 55 CLR 235
McDermott v The King (1948) 76 CLR 501
R v Favata [2004] VSC 7
R v Lee (1950) 82 CLR 133
R v Marks [2004] VSC 476; 150 A Crim R 212
R v Tofilau (2003) 149 A Crim R 446
The State of Western Australia v Lauchlan [2005] WASC 266
Tofilau v The Queen (2006) 160 A Crim R 549
Tofilau v The Queen [2007] HCA 39; (2007) 81 ALJR 1688

BUSS JA: I agree with Miller JA.
MILLER JA: The appellant was indicted in the Supreme Court at Perth on a count of wilful murder. It was alleged that, on 19 September 2002, at Forrestdale he wilfully murdered Stephen Joseph Rossi (the deceased).
The appellant was tried in the Supreme Court at Perth before EM Heenan J (the trial judge) and a jury. On 1 November 2006, he was convicted on the charge of wilful murder.
On 4 May 2007, Wheeler JA granted to the appellant leave to appeal from his conviction. The grounds of appeal are in the following terms:
Ground 1
The learned Judge erred in law in finding that the admission made by the Appellant on 18 December 2003 ('the admission') was voluntary and admissible:
Particulars
i)The admission was made by the Appellant to a covert police officer, operating under the name Gary Butcher ('Gary');
ii)Before the admission was made the Appellant was offered inducements to make the admission;
iii)Following the inducements being offered, the Appellant made the admission to Gary;
iv)Gary was a 'person in authority';
v)The admission was not made voluntarily.
Ground 2
The learned Judge erred in ruling as admissible and not excluding, in the exercise of his discretion, the evidence of the admission made by the Appellant on 18 December 2003 ('the admission'):
Particulars
[The same particulars are set out in this ground as are contained in ground 1.]
The appellant's grounds of appeal relate to the conclusion of the trial judge on 7 December 2005 that (subject to some editing) certain confessional evidence to be led by the prosecution at the trial of the

appellant was properly admissible in evidence against him: The State of Western Australia v Lauchlan [2005] WASC 266.

The trial judge considered the admissibility of this evidence at a voir dire hearing which occupied four days in October and November 2005. The question before his Honour was whether confessional evidence upon which the prosecution sought to rely was admissible, or if admissible should be excluded in the exercise of the court's discretion. There were two aspects of the evidence which were the subject of the voir dire hearing. The first related to alleged admissions by the appellant of the killing of the deceased which it was said that the appellant had made in the course of a police undercover operation. The second related to evidence of discussions between the appellant and his co‑accused, one Lynda Susan Hammond (Hammond), intercepted by a listening device at an apartment in which the appellant and Hammond were staying and which it was alleged confirmed the accuracy of the earlier admissions made by the appellant.

Evidence on the voir dire

The evidence of the police undercover operation which occasioned the alleged admissions by the appellant was comprehensively summarised by the trial judge in his reasons at [8] ‑ [58] inclusive. Those reasons should be read in conjunction with these reasons.
The alleged admissions followed police investigation relating to the death of the deceased on 19/20 September 2002. On that night, the deceased's body was located off the roadway in Armadale Road, Armadale. Post‑mortem examination revealed that the deceased had died in consequence of multiple injuries, combined with opiate effect.
The prosecution case against the appellant was that he had caused the death of the deceased in circumstances constituting the crime of wilful murder. It was alleged that, some days prior to the death of the deceased, the appellant had arranged to purchase a quantity of heroin from him and to meet him for that purpose in Armadale Road, Forrestdale. It was alleged that a meeting took place at that location on the night of 19/20 September 2002 and that, at the meeting, the appellant demanded heroin, but refused to pay for it. It was alleged that the deceased refused to hand over the drug and, in consequence, the appellant assaulted the deceased by striking him repeatedly in the head with a blunt object. It was alleged that the deceased had tried to flee, but that the appellant had killed him by running him down with his (the deceased's) motor vehicle. It was further alleged that the appellant had then gone back and run over

the body on the roadway. It was alleged that he set fire to the body with petrol and had driven the motor vehicle into the bush, where it was destroyed by fire.

The prosecution case was that the appellant disclosed his involvement in the death of the deceased to his de facto wife, Hammond, and that she assisted him and provided a false alibi for him, to the effect that he was with her for the whole of the night of 19/20 September 2002.
Police became aware of the appellant's arrangement to meet the deceased on the night of his death. He was questioned by police officers about his association with the deceased and his activities on the night in question. He denied any involvement in the death of the deceased. He said that he had arranged to meet with the deceased on the night in question, but had cancelled that meeting because he was unable to raise the money needed to purchase heroin from the deceased.
There were six interviews between investigating police and the appellant, five of which were video‑recorded. The first five interviews took place between 20 September and 13 November 2002 and the final interview took place on 19 December 2003, following the appellant's admissions to an undercover police officer of his involvement in the death of the deceased. The first of the interviews was unrecorded. It led to a handwritten statement being made by the appellant. The second interview was recorded on video, but not under caution. All other interviews were recorded on video and after caution. On each occasion, the appellant either denied involvement in the death of the deceased, or declined to answer questions on the basis of legal advice, or declined to answer questions unless a lawyer was present.
In the final video record of interview, the appellant sought to persuade the investigating officers that he had made up the account he gave to the undercover operative. I shall refer in more detail to this interview.

An undercover police investigation

Police investigating the death of the deceased considered that the appellant was the prime suspect in relation to that death. The view they formed was that the appellant had killed the deceased at the prearranged meeting to conduct a heroin deal. They knew, however, that there would be insufficient evidence to establish a case against the appellant unless he gave some form of admission.
Some time after November 2002, when the appellant was released from custody at Wooroloo Prison (after serving a term of imprisonment in consequence of unpaid fines), the appellant, Hammond and their children left Western Australia and moved to Queenstown in Tasmania. The appellant there sought employment as a professional fisherman.
In about March 2003, Western Australian Police decided to seek the assistance of the Victorian Police Force to conduct an undercover operation by means of the 'homicide scenario' technique in the hope that this would snare the appellant by causing him to admit to his involvement in the death of the deceased.
The homicide scenario technique was described by the trial judge in The State of Western Australia v Lauchlan at [11] ‑ [15] in the following terms:
The basic features of the technique are that an undercover police operative will make contact with the target (in this case Darren Lauchlan), strike up an acquaintance and build rapport. Once this relationship has been established there follows a series of other meetings with the undercover police operative which take place over a duration of about nine weeks, in this case from 20 October 2003 to 19 December 2003. During this period the target is led to believe that the police undercover operative, and other police undercover operators who are introduced at various stages along the way, belong to an organised criminal gang controlled by a "crime boss" which runs widespread illegal activities ranging from protection rackets, to prostitution operations, illegal drug importation and supply, gun running, jewel robbery and other serious criminal activities.
This is accomplished by one or more of the undercover police operatives acting out prearranged scenarios, which are carefully designed to give the appearance of preparations for, completion of, or assistance in, the collection of moneys from protection rackets and prostitutes, the handling of firearms, including automatic weapons and submachine guns for delivery to outlaw motorcycle gangs, the reconnaissance of suitable landing grounds for an aircraft involved in drug importation, the collection of 'diamonds' from a jewel robbery, the preparation of parcels of drugs for distribution into a supply chain, and the collection of moneys from another "gang" member who had supposedly double-crossed the gang and is being forced to repay money owed. Despite the appearances and the carefully and deliberately induced belief that the actions portrayed in the various scenarios were either themselves criminal activities or part of the preparations for, or sequels to, serious criminal activities, no offences of any kind are actually committed.
All the individuals involved, including the stall owner paying the 'protection money', the prostitute paying the 'take' to the organisation, the jeweller who was in the process of being 'robbed', the motorcycle gang members who were collecting the firearms and the former gang member who was being 'pressured' to repay moneys which she had wrongly taken from the gang, were all undercover police operatives carefully carrying out fictional roles specifically designed for them. Throughout this process, as the 'target' was being enticed into ever closer co‑operation with the initial operative, he was being encouraged to believe that he may be accepted as a member of the gang and so be led into lucrative criminal activities. Indeed, by expressing his willingness to become involved in the play‑acting activities of assisting in the jewel robbery, the drug importation and distribution and other matters, the 'target' was induced to believe that he had already 'earned' a substantial slice of the profits and that the 'take' due to him by mid December 2003 was about $11,000 or more and would be paid to him.
As these scenarios were enacted and progressed the 'target' was repeatedly told that the key to success for the criminal gang was 'honesty, loyalty and trust' between its members and that all the gang members were carefully checked and evaluated by the 'crime boss' who had access through corrupt police officers and other corrupt officials, to police information. The 'crime boss' had the capacity to make any past problems 'go away' if they posed any threat to the gang or individual members. However, to be initiated into the gang and accepted as a member, a candidate had to be able to satisfy the 'crime boss' that there was nothing in his past which would, or might, attract undue police attention to him and thus imperil any of the operations of the gang. It was for this reason that detailed 'checking' was necessary via access to the 'corrupt officials' who were on its payroll.
All this was explained repeatedly to Darren Lauchlan by the prime undercover operator who had initially enlisted his involvement in the supposed illegal activities. It was reinforced by statements from the 'crime boss', a man named 'Gary', at an initial meeting with the target and it all came to a head at the ultimate interview between the 'target' Darren Lachlan and the 'crime boss' 'Gary' at a meeting in the Crown Casino Hotel in Melbourne on 18 December 2003. [11] ‑ [15]

The alleged admissions

At the meeting in the Crown Towers in Melbourne on 18 December 2003, police operatives secretly videoed what took place. The undercover operative, operating under the name Gary Butcher (Gary), himself wore an interception device ('wire'). Gary was, of course, an undercover police operative.
Gary made it clear to the appellant that he hoped that he would become a permanent member of the gang, but the checks which had been made by the gang revealed that police in Western Australia were 'hot for him' because of his suspected involvement in the murder of the deceased. Gary told the appellant that he needed to know exactly what the appellant's involvement was in this matter, in order to decide whether or not he would be a threat to the gang, or, alternatively, whether the problem was something which could be made to 'go away' because of the gang's connection with corrupt officials.
During the course of this meeting, the appellant initially said that he knew about the murder of the deceased, but said that he was not personally involved. He claimed that another man whom he knew had committed the crime. He gave a certain amount of detail about the circumstances of it.
Gary told the appellant that he did not accept his explanation. He said that his source had always been reliable and, according to that source, it was the appellant himself who was believed to have murdered the deceased. Gary said that he needed to know the truth in order to decide whether the appellant should become a member of the gang.
It is important to note that Gary stressed to the appellant that he was not required to participate any further in the discussion which was taking place. He was free to go and no harm would come to him. Gary would simply disappear and the appellant could be assured that he would not hear of or from any member of the gang in the future.
What then occurred was summarised by the trial judge in his reasons at [19] as follows:
At this point in the recorded interview Darren Lauchlan agreed that he had not given the complete story of the killing of Stephen Rossi before. He then proceeded to give a detailed account of how he, himself, had killed Rossi, how he had met by prearrangement at the scene in Forrestdale, how he had sought to get drugs from Rossi without paying, and that when Rossi refused they both got into Rossi's car whereupon Lauchlan struck Rossi repeatedly in the head with a clenched fist bearing a heavy weapon which caused Rossi injury and led him to stop the car and run away. Lauchlan said that he then took over the control of the car and ran Rossi down, striking him with the front of the vehicle and forcing him into the air and over the canopy to fall injured on the roadway. According to his version of events, Lauchlan then turned the car around and deliberately drove it over the prone body of Rossi. He stopped, went back and saw that the man was apparently dead. He then spread petrol on him from the car and set him alight. He then drove Rossi's car off down a track into the bush, took the weapon which had been used in the incident, wiped the vehicle down, sprinkled it with more petrol and set it ablaze, returning on foot to his own vehicle hidden nearby and then dumping the weapon in a council rubbish bin which, in the ordinary course of events, would be taken to the tip the following day. He said that he then returned home.

Transcript of Admissions made to Gary on 18 December 2003

The transcript of the video and audio‑recorded conversation between the appellant and Gary at the Crown Towers on 18 December 2003 is 88 pages in length. It is impossible to do more than select some excerpts from it. These will give the flavour of the discussion and indicate the extent to which Gary made it clear to the appellant that he was under no obligation to say anything. The relevant excerpts are as follows:
GARYTHE OTHER THING IS, YOU DON'T HAVE TO DO ANYTHING AT ALL WITH US. YOU DON'T HAVE TO SAY ANYTHING AT ALL TO ME. YOU CAN GET UP AND WALK OUT THE FRIGGIN' DOOR.
DARRENYEAH, YEAH.
GARYYOU'VE GOTTA KNOW THAT-
DARRENYEAH, I UNDERSTAND THAT, YEAH.
GARYYOU'RE NOT, YOU'RE NOT BEING FORCED OR PRESSURED TO DO ANYTHING, OKAY.
DARRENTHAT'S EXACTLY RIGHT, YEAH.
GARYI'LL, I'LL STICK YOU ON A PLANE, YOU AND YOUR MISSUS AND KIDS, AND IF YOU WANT TO, AND SEND YOU BACK TO TASI, LIKE.
DARRENSEE YA LATER, YEAH.
GARYAND I'LL DISAPPEAR, JOHN'LL DISAPPEAR, CHRIS'LL DISAPPEAR,
DARRENEVERYONE WILL GO.
GARYYOU WON'T KNOW WHERE THE HELL WE ARE.
...
GARYBUT THIS THING OVER IN PERTH IT, IT'S ABOUT A DEATH OF A DRUG DEALER OVER THERE.
DARRENOH, YEAH, YEAH, I KNOW WHAT YOU'RE ON ABOUT, YEAH.
GARYAND THE COPPERS, THE COPPERS HAVE GOT YOU IN THE PEA FOR THAT.
DARRENHAVE THEY? I THOUGHT SOMEONE HAD BEEN FOUND FOR THAT ALREADY.
...
GARYSO, AGAIN I WANT TO MAKE IT CLEAR, YOU CAN TELL ME TO GO JUMP IN THE LAKE AND WALK OUT THE DOOR AND NOT SAY ANYTHING TO ME. I COULDN'T CARE.
DARRENYEAH.
...
GARYSO, SO AGAIN, YOU KNOW, TELL ME TO GO TO BUGGERY-AND WALK OUT THE DOOR IF YOU LIKE. AND, AND LISTEN DARREN, THERE'LL BE NO HARD FEELINGS IF YOU DO THAT, RIGHT.
DARRENYEAH, YEAH.
GARYYOU DON'T HAVE TO SAY FUCKING JACK SHIT TO ME, OKAY.
DARRENYEAH.
GARYIF THAT'S, IF THAT'S YOUR DECISION THAT'S YOUR DECISION, AND I WON'T HAVE ANY HARD FEELINGS. AND I'LL MAKE SURE YOU GET FLOWN BACK HOME. NOT A PROBLEM, OKAY.
DARRENYEAH.
The appellant initially told Gary that he did not kill the deceased, but he was pretty sure that he knew who did. He made out that he was told by 'Warren Cain' about the deceased's death, but that the death had nothing to do with him because he was at home at all relevant times with his 'missus'.
Gary was not to be put off by the appellant's alleged false account of the death of the deceased. He said:
GARYNOW I CAN UNDERSTAND THAT YOU MIGHTN'T WANT TO TELL ME THAT YOU'VE BEEN INVOLVED IN A MURDER. HEY, THAT'S SWEET, AND I CAN UNDERSTAND THAT, ALRIGHT. BUT WHAT I'M SAYING IS WHAT I'M TOLD IS YOU'RE INVOLVED. AND IT'S NOT JUST, THEY'RE NOT JUST HAVIN' A GUESS. I MEAN, THEY'VE GOT WITNESSES AND SEEN CARS IN PLACES AND ALL SORTS OF THINGS. PHONE CALLS ABOUT DRUG DEALS AND THAT YOU ORGANISED ANOTHER DRUG DEAL. AND AS I SAID BEFORE I COULDN'T GIVE A FUCK WHAT, WHAT ACTUALLY
DARRENYEAH
GARYHAPPENED, AS LONG AS I CAN SORT OUT WHAT HAPPENED. YOU KNOW WHAT I MEAN?
DARRENYEAH.
GARYNOW, NOW THAT'S, AT THE MOMENT, WHAT I BELIEVE TO BE THE CASE, OKAY.
DARRENMM'HM.
Gary repeated, however, that the appellant was under no obligation to speak to him about the matter.
GARYNOW, LIKE I SAID, I CAN UNDERSTAND IF YOU DON'T WANT TO TALK TO ME ABOUT IT. THAT'S FINE, BUT IF YOU'RE INVOLVED AND YOU DON'T TALK TO ME ABOUT IT, WHICH YOU DON'T HAVE TO, YOU KNOW.
DARRENYEAH.

Gary made it clear to the appellant that he understood that the appellant might have tried to 'throw a furphy', but he asked him to get 'fair dinkum' and said the time had come for it. He added, 'We sort it out now, or, or that's it'. He added that, either way, he would shake the appellant's hand when they left. He then asked, 'Is there more you want to say or not?" The appellant then proceeded to give an account of what had happened between himself and the deceased. He said (inter alia):
DARRENYEAH, YEAH. SO, UM, WE'VE WENT OUT THERE, RIGHT, AND I'M TELLING YOU STRAIGHT OUT NOW RIGHT, I'M GOING TO TELL YOU THAT I'VE DONE IT.
...
DARRENSO, THIS HAS HAPPENED, RIGHT, AND I'VE LEFT ME MISSUS AND THAT, UM, AT HOME, I'VE GONE THERE,
GARYSO, HAVE YOU BEEN ON YOUR OWN?
DARRENYEAH
...
DARRENRIGHT. NOW, HE AH, HE REFUSED TO GIVE, WHEN WE MET HIM THERE, HE REFUSED TO GIVE ME IT.
GARYWHO'S WE?
DARRENOHH, ME
...
DARRENRIGHT, HE'S REFUSED TO GIVE IT TO ME AND AN ARGUMENTS' BROKEN OUT BECAUSE
GARYTHIS IS THE SIX?
DARRENYEAH
GARYOHH, YEAH
DARRENAND LIKE ME BROTHER'S SPENT HEAPS OF MONEY, HE GOT A TWO HUNDRED THOUSAND DOLLAR PAY OUT YEARS AGO FOR HIS CAR ACCIDENT AND BASICALLY SPENT
GARYAND HE'S SPENT A LOT OF IT WITH THIS BLOKE
DARRENHE'S SPENT MOST OF IT ON THIS BLOKE
...
DARRENAND UM, SO, HE~S AH, HE SAID TO ME NO AND THAT, AND I SAYS WELL IF YOU DON'T HAND IT OVER TO ME I'LL JUST BELT SHIT OUT OF YOU AND TAKE IT - RIGHT.
GARYIS HE A BIG BLOKE THIS FELLOW OR WHAT?
DARRENYEAH, HE'S A BIG FELLA,HE'S ABOUT A HUND.. A REAL BIG BLOKE, YOU KNOW
GARYALRIGHT
DARRENBUT I'M PRETTY GOOD, I'M PRETTY GOOD WITH ME (INAUDIBLE)
...
DARREN'CAUSE WHEN YOU'RE IN THE CAR, YOU HAVEN'T GOT MUCH LEVERAGE YOU KNOW, YOU CAN'T PULL IT RIGHT BACK AND REALLY GET INTO HIM YOU NEED SOMETHING A BIT HEAVY SO YOU CAN FUCKING KNOCK THEM OUT HARD, ANYWAY, I HIT THE PRICK ABOUT THREE TIMES OR SOMETHING AND HE FUCKING DIDN'T, DIDN'T, IT CUT HIS HEAD AND THAT BUT IT DIDN'T FUCKING PHASE HIM AND HE FUCKING GOT OUT OF THE CAR AND BOLTED
GARYYOU'RE JOKING
DARRENYEAH, OHH. I'VE NEVER SAID THIS TO ANYONE, YOU'RE THE ONLY ONE I'VE TOLD, ANYWAY, SEE,
...
DARRENYEP. YEAH AND ANYHOW, HE'S UM, HE'S GOT OUT OF THE CAR AND BOLTED, NOW THERES NOT FAR,
...
DARRENYEAH, HE TRIED TO BOLT. SO I FUCKIN' GOT OUT, RAN AROUND THE OTHER SIDE OF THE CAR, STARTED IT UP. FUCKIN' TOOK OFF AND HIT HIM. AND HE WENT OVER THE ROOF OF THE CAR.
GARYOH, RIGHT, YEAH, YEP, YEP, YEP.
DARRENLANDED ON THE ROAD. AND THE FUCKIN' BIG PRICK HE GOT BACK UP AGAIN.
GARYAFTER THAT?
DARRENYEAH.
GARYYOU'RE KIDDIN' ME.
DARRENNO, HE FUCKIN' GOT BACK UP AGAIN. I'D BELTED THE SHIT OUT OF HIS HEAD, CRACKED HIS SKULL OPEN. AND I'D RUN HIM FUCKIN' OVER. HE WENT OVER THE ROOF. AND HE GOT BACK UP AND HE'S TRYIN' TO WAVE CARS DOWN AND THAT.
GARYYOU'RE KIDDING ME
DARRENSO FUCK, I PULLED OVER THE SIDE AND I BACK BACK UP.
GARYARE THERE MANY,
DARRENI BACK BACKED UP AND I WOUND THE WINDOW DOWN AND I SAYS, HEY, STEVE, YOU KNOW, FUCKIN' OKAY I'LL TAKE YOU FUCKIN' HOME. DON'T WORRY ABOUT IT, YOU KNOW. I GOT THE DRUGS, WE'LL LEAVE IT AT THAT. AND THE DUMB PRICK'S JUST FUCKIN' STOOD THERE AND STOPPED WAVIN' CARS DOWN. AND I'VE BACKED UP AND I'VE DROVE OVER THE OTHER SIDE OF THE ROAD WHERE HE IS. AND HE'S STANDIN' NEAR THE SIGN, AND HE'S COME UP NEAR THE FRONT OF THE CAR. AND I'VE FUCKIN' TRAMPED IT AGAIN, BRRRRR, AND HE WENT UNDER THE CAR THIS TIME.
GARYOH, SO YOU GO OVER HIM.
DARRENSO I WENT OVER HIM. AND THEN I KEPT GOIN'. AND THEN I WENT AROUND-
...
DARRENNO THERE'S GOING TO BE NOTHING ON MY CAR, NO. NAH, IT WAS HIS CAR I DONE HIM IN. RAN HIM OVER IN, RIGHT. AND THEN I TOOK OFF DOWN FOREST ROAD TO NICHOLSON ROAD LIGHTS. TURNED LEFT. GONE UP THERE, UP SWAMP ROAD; BECAUSE I KNOW THE AREA BECAUSE I OWNED A HOUSE THERE.
...
DARRENYEAH. SO I WENT DOWN THIS TRACK AND I TOOK THE CAR THERE, AND I BURNT THE WHOLE LOT.
GARYHIS CAR?
DARRENYEAH, HIS CAR. EVERYTHING INCINERATED,
The appellant then told Gary that he had the bag, the weapon and his jacket. He took $400. He set fire to the body of the deceased with petrol:
DARRENYEAH. AND ON HIS BODY I JUST PSSSST WITH JUICE AND LIT HIM ON FIRE. JUST IN CASE THERE WAS ANYTHING OF MINE ON HIM.
GARYOH, YOU BURNT - ON HIM?
DARRENYEAH.
GARYOH, YEAH.
DARRENSO I LIT HIS BODY ON FIRE AS WELL, AND TOOK OFF. AND THEN I WENT AROUND WHERE I WAS SAYING, AND DOWN SWAMP ROAD. I PUT THE CAR THERE, GOT OUT AND I BURNT THE WHOLE-
GARYTHE CAR.
DARRENTHE CAR. AND THEN I GOT INTO MY CAR 'CAUSE I ALREADY HAD MY CAR SET UP THERE,
Gary then told the appellant that he would have to look at what he had been told. He said:
GARYI'M NOT SAYIN' THESE ARE PROBLEMS. WHAT I'M SAYIN' IS, THESE ARE THINGS THAT WE'VE GOTTA LOOK AT TO MAKE SURE WHETHER THERE IS A PROBLEM OR NOT. YOU KNOW WHAT I MEAN?
The appellant added:
DARRENBUT I'VE NEVER TOLD ANYONE. YOU'RE THE FIRST, YOU THE ONLY PERSON I'VE TALKED TO ABOUT IT.
GARYAND YOUR BROTHER.
DARRENOH, ME BROTHER, YEAH, YOU KNOW, APART FROM WHAT I'VE ALREADY TOLD YOU. I MEAN, PEOPLE THAT I'VE TOLD YA.
GARYYEAH.
DARRENME MISSUS, ME BROTHER AND YOU.
GARYYEAH.
DARRENYOU'RE THE ONLY PEOPLE THAT KNOW, THAT I'VE OPENED UP WITH.
GARYOH MATE, AS LONG AS YOU'-RE UP-FRONT WITH ME, . YOU KNOW. THAT'S ALL I'VE BEEN ASKING FOR ALL ALONG, YOU KNOW.
GARYNO THAT'S RIGHT, YEAH, YEAH.
GARYJUST THE FUCKIN' TRUTH. THAT'S ALL, YOU KNOW.
DARRENYEAH, THAT'S THE TRUTH MATE ...
The interview ended with Gary calling in Operatives 'Alex' and 'John'. To them, he said, 'I'm happy with Darren, mate. He's, um ... I think we've got a new bloke with us'. He told Alex and John to take the appellant back (to his 'missus'). It was then approximately 2.39 pm on 18 December 2003.
The transcript of the video and audio recorded discussion between the appellant and Gary was made available by the trial judge to the jury. A warning was given that there might be limitations in the transcript, and the prime source of the conversation was the recording itself:
HEENAN J: Mr Foreman, ladies and gentlemen, you will have an opportunity to look at this of course later in the case. I am not going to give it to you now or go through it with you. What I do wish to tell you, however, is that the prime evidence in this regard is what is contained on the video and on the audios and the transcript, of course, is a recording made by a qualified typist-receptionist-word processor of that conversation.
As with all transcripts, there is a risk of occasional error and of course one does not have the nuance from the phraseology that comes from the conversation, so what is seen in black and white on a page as a transcript of a conversation is not as good a medium of conveying the true meaning of what occurred as the conversation itself, so if you get to the point where you wish to use this transcript, I think you need to bear in mind that it is somebody else's version of what was said; that the prime source is the recording itself.
If in doubt about what is in the transcript you should prefer your own assessment of the audio or video recording, realising that occasionally mistakes get made, but with that warning you are of course permitted to use the transcript.
The appellant was returned by Alex and John to an apartment in St Kilda, where the appellant was staying with Hammond for the duration of their visit to Melbourne. This apartment was fitted with authorised listening devices. Conversations were recorded during the afternoon and evening of 18 December 2003. The appellant described to Hammond his interview with Gary and told her how he had admitted to the killing of the deceased, and what effect this had had upon him. Further admissions were made by the appellant of his involvement in the murder of the deceased. The conversations also implicated Hammond as a knowing accomplice in providing assistance to the appellant in providing a false alibi and otherwise.

Transcript of admissions made by appellant at St Kilda Road apartment on 18 December 2003

The listening device installed in the apartment picked up (inter alia) the following discussion:
MR LAUCHLAN:   So he's laid it on me ...[Indecipherable] ... ya know ... [Indecipherable] ... Hey?
MS HAMMOND:   [Indecipherable]
MR LAUCHLAN:   He's eager I can tell ya ... [Indecipherable] ... so I've told him what's happened so far. Ya see what I mean ya know, like I was thinking of you, ... [Indecipherable] ... He says 'Don't give me her, I want you, I want you bad ... [Indecipherable] ... ya know. He goes, 'Oh well, you know, it's up to you now ya know, I'll go with my information, I'll have to' ... [Indecipherable] ... Alright? ... [Indecipherable] ... He says ...
Whispering becomes so low conversation indecipherable.
MS HAMMOND:   [Indecipherable]
MR LAUCHLAN:   [Indecipherable] ... how you were in the car ... [Indecipherable] ... I smacked the cunt in his fucken head mate, fucken ... [Indecipherable] ... I hit the fucken brakes ... [Indecipherable] ... I told him everything right.
MS HAMMOND:   Yep.
MR LAUCHLAN:   Fucken everything ... [Indecipherable] ... fucken hell ... [Indecipherable] ... he goes 'I love this ' {laughter}.
Child enters bedroom. Jack slamming doors.
MR LAUCHLAN:   And he goes 'Look', he goes ' ... [Indecipherable] ... '. He goes 'have you done a good job on the car', I said 'Yeah' ... [Indecipherable] ...
MS HAMMOND:   [Indecipherable]
MR LAUCHLAN:   I don't know. He says, .. [Indecipherable]... 'I'll make these cunts go away ... [Indecipherable] ... but you're gonna have to tell me the truth, right, because I can't fix things that I don't know, if I don't know ... [Indecipherable] ...
MS HAMMOND:   What?
MR LAUCHLAN:   And in the end ... [Indecipherable] ... and then he called John back up and says 'Yeah he's in, he's part of the crew' ... [Indecipherable] ... 'Well done Darren', and then Chris ... [Indecipherable]...
MS HAMMOND:   Yep. That's good.
MR LAUCHLAN:   [Indecipherable] {laughter}
In further conversation, the appellant said:
MR LAUCHLAN:    Yeah so I said 'I didn't go there with any intention to kill the cunt, I thought he knows me background and I thought ... [Indecipherable] ... the fuckwit. He's a silly cunt isn't he?!' ... [Indecipherable]
MS HAMMOND:    Yeah.
MR LAUCHLAN:    So he fucken should of, it would've saved a lot of drama, he'd still be fucken alive and only be a little bit fucken ... [Indecipherable] ... fucken phone bills and everything would have been fucken sweet. It's fucken a lot less than we deserve and that he owed us anyway. The fucken cunt ... [Indecipherable] ...
In a further passage recorded by the listening device, the appellant said:
MR LAUCHLAN:    {laughter} ... and then he got back up the cunt ... [Indecipherable] ... He got back up, and he made it across the other side of the fucken road and he was hanging onto the fucken sign. ... [Indecipherable] .. I reversed back... [Indecipherable] ... Just don't worry Steve, that's it, that's it, OK here we go, ya know, keys in the car, ... [Indecipherable] . .. and he believed me, the cunt believed me ... [Indecipherable] ... until I crossed the road and walked in front of the fucken car, fuck instead of getting in the back, he bloody walked across the front to the drivers side ... [Indecipherable] ... I'm gonna run the cunt over this time. .. . [Indecipherable] ...
MS HAMMOND:    [Indecipherable]
MR LAUCHLAN:    [Indecipherable] ... I stopped cause I fucken smashed into ... [Indecipherable] ... ya know, the body, ... [Indecipherable]
Towards the end of the series of conversations taped on the listening device, there is the following passage:
MR LAUCHLAN:    Fuck I'm glad that's over.
MS HAMMOND:    {laughter}
MR LAUCHLAN:    It's just been playing on my mind for so fucken long mater, ever since this started.
MS HAMMOND:    Mmmm.
MR LAUCHLAN:    I've just fucken known this was gonna come out.
The transcript of the discussion between the appellant and Hammond was made available to the jury. The trial judge gave the jury a strong direction about the limitations in its use:
I am obliged to instruct you that the purpose of admitting this transcript is not to provide independent evidence of the conversation but only as to aid you in understanding what the conversation is that is recorded on the tape and that you cannot use the transcript as a substitute for the tape if you are not satisfied that the transcript correctly sets out what you heard on the tape. So at some stage in these proceedings, right from the beginning, I suggest, you should concentrate on seeing what you are satisfied can be drawn from the listening product itself and this transcript can only be used in an attempt to assist you to understand that. It is not evidence itself, it is not independent. It is somebody else's version of repeated listening under enhanced conditions to what was said and you can only use it if you are satisfied that it accurately sets out what is said on the primary recording.
Now, I think you will find that there is a great degree of variability in the quality of these recordings and certainly the author of this transcript has not been able to identify all that was said, and there are many references in the transcript to "indecipherable". You may be able to pick up what the author of the transcript thought was indecipherable or you may not. You may be able to be satisfied that something which the author of the transcript has recorded as being said was said, or you may not, but unless you are satisfied of what was actually said you cannot use the transcript to substitute for that.
On 19 December 2003, an undercover operative met the appellant at the St Kilda apartment and drove the appellant to a venue where the appellant understood there would be further gang activity. The appellant was left alone in the vehicle and police arrived at the scene and arrested him. He was then charged with the murder of the deceased. Hammond was arrested shortly afterwards and charged with being an accessory after the fact to the murder of the deceased.
After the appellant's arrest on 19 December 2003, he engaged in a final video recorded interview with the investigating officers. He sought to explain away his admissions to Gary in the following way:
A.I told him the truth to start with and then he offered ‑ ‑ they offered me all this money and says, um, 'Well, my information's been for 15 years and I go with my information', and that. 'So you can walk out if you like,' you know. 'If you're going to say you haven't done nothing just walk away ', because of the fucking - - the heat on me all the time. So, I thought about for a while and I bullshitted to him and says that I - - 'Yeah, fair enough, okay, I done it and - - done this and done that', and- - - to get the money out of him^? So that they'd pay me some money.
...
Q.And you confessed to Gary, the policeman, about what you did, in detail, to Stephen Joseph Rossi at Forrestdale on Thursday night the 19th of September 2002?
A.Yeah. I told him a load of bullshit at the end. The first time I told him the truth. But then he says I can walk out the door and then I was thinking of all the money that I was going to miss out on, so I just told him that I'd done it so they'd take me on board?
...
A.[I] just made up a fucking bullshit story from what I remembered from the police. You know, from the phone boxes, from the fucking car and all the fucking bullshit that had fucking gone on, and, um, just fucking made up the story myself from what I'd known.

Outcome of the voir dire

In the course of the voir dire, it was submitted on behalf of the appellant that his alleged confession to Gary at the Crown Towers in Melbourne on 18 December 2003 was involuntary, had been deliberately induced in response to promises of financial advantage, and was made under an inducement by an implicit threat of violence to him if he did not co‑operate in disclosing information to Gary. It was further submitted that any assurances made by Gary to the appellant that he would not be harmed were to be seen in the context of statements made by 'an all‑powerful crime boss successfully running a highly organised and widespread criminal operation involving standover tactics, firearms and ready to resort to effective sanctions against members who betrayed or threatened the safety of the gang' (The State of Western Australia v Lauchlan at [25]).
It was also contended on behalf of the appellant that there had been no disclosure made by Gary, or any other undercover operatives, that they were police officers acting in the course of their duty, and that the appellant had not been cautioned. It was contended that this was a departure from normal police interview techniques to such a degree that any statements made by the appellant were inadmissible.
The final contention was that the undercover police operation had the eventual object of achieving a confession and, by reason of this object, the appellant was denied his right to silence. This was a right which he had previously exercised in relation to interviews with investigating detectives in Western Australia.
It was submitted in the alternative that if the admissions were admissible, they should be excluded in the exercise of a discretion because of the impropriety and unfairness on the part of the undercover operatives and/or because the method of police interrogation was contrary to the public interest because it denied the appellant an effective right to silence.
In reaching the conclusion that the admissions made by the appellant were properly admissible in evidence, the trial judge said:
... I am satisfied that no offences were committed by anything which was done. Similarly, I am satisfied that no express threat was ever made to Darren Lauchlan about the consequences of him not co-operating or assisting the gang or of what might befall him if he decided to withdraw. Indeed, every effort was made to assure him that he was free to withdraw without adverse consequences, especially during the final critical interview with 'Gary' at the Crown Towers Hotel.
... the videotape of the final interview at Crown Towers Hotel on 18 December 2003, does not suggest that Lauchlan at any time felt threatened or harboured any fears for himself, Lynda Hammond or their children. He came voluntarily from Tasmania to Melbourne on several occasions and returned alone. No force or threats were made to induce him, Lynda Hammond and the children to come to Melbourne and stay at the flat at St Kilda. He had never expressed any fears or dissatisfaction. His entire demeanour during the critical interview of 18 December 2003 was that of a person who was relaxed and speaking freely.
I am satisfied that Darren Lauchlan was acting voluntarily throughout the whole course of these scenarios and, in particular, during the course of the critical discussion with 'Gary' on 18 December 2003. No blackmail was used or threatened in any of the dealings between 'John' or other members of the gang and Lauchlan. [56] ‑ [58]

References by the trial judge to legal principle

The trial judge made extensive reference to established authority relating to the admissibility of confessional statements. His Honour also surveyed the cases dealing with the discretion to exclude unduly prejudicial evidence.
There was specific reference to a number of decided cases relating to the 'homicide technique' utilised by the undercover police in the present case. There was, in particular, reference to three decisions of the Supreme Court of Victoria, all relied upon by counsel for the prosecution on the voir dire. Those decisions were R v Tofilau (2003) 149 A Crim R 446, R v Favata [2004] VSC 7, and R v Marks [2004] VSC 476; 150 A Crim R 212.
The time at which the trial judge determined the voir dire was well before the decision of the High Court of Australia in Tofilau v The Queen [2007] HCA 39; (2007) 81 ALJR 1688, (Tofilau) which was an appeal from the decision of the Court of Appeal of the Supreme Court of Victoria in Tofilau v The Queen (2006) 160 A Crim R 549. At the time his Honour dealt with this matter, the decision in R v Tofilau was only a first instance decision (Osborn J). It is the decision of the High Court in Tofilau which now authoritatively states the principles relevant to the admissibility of 'scenario evidence'. That decision endorses the view taken by the trial judge in this case.

The decision of the trial judge

Voluntariness

The trial judge concluded that his viewing of the videotaped interview between the appellant and Gary at the Crown Towers on 18 December 2003 satisfied him that there was no overbearing of the appellant's will, whether by inducements, threats or due to any other reason. His Honour said:
He was composed, apparently at ease, and speaking freely. His responses were to a significant extent elicited by questions raised by 'Gary' and, indeed, his second and final explanation of the events involving Mr Rossi's death followed because his first (false) description of those events was rejected by 'Gary'. Notwithstanding this, he did speak freely and I am satisfied that the statements which he made were not those of a person whose will had in any way been overborne.
There is further evidence to support this conclusion, namely the listening device intercepts of the conversations between Lauchlan and Hammond at the St Kilda flat later on the evening of 18 December 2004 after the episode at the Crown Casino when Lauchlan explained to Hammond what had transpired and how he had given the details of Rossi's death to 'Gary'. Not only does that material from the St Kilda flat intercepts tend to confirm the accuracy of the events described by Lauchlan to 'Gary' about his involvement in Rossi's death, but it also confirms that he provided the information to 'Gary' in the exercise of his own free choice. [92] ‑ [93]
I have looked at the videotaped interview and I endorse the view of the trial judge that the appellant was composed, at ease and speaking freely. There is no sign of any overbearing of the appellant's will.

Exercise of discretion

The trial judge considered the question whether the admissions of the appellant could be categorised as so unreliable, because of the offer of money, that they should be excluded as unsafe in the exercise of his discretion, or because their prejudicial effect outweighed any probative value. His Honour's conclusions were as follows:
I do not have any doubt that the confessional statements are highly probative of the alleged involvement of Darren Lauchlan in the death of Stephen Rossi, notwithstanding his explanation given later to the interrogating police officers in Melbourne that the story which he gave to 'Gary' was false because of his desire to be accepted by the gang. As such, the evidence is extremely incriminating and, consequently, damaging to Lauchlan's own personal interests but this does not mean that it is prejudicial in the sense that it might mislead or distract a jury from the proper task of reaching a verdict of guilty or not guilty upon the evidence in the case or give rise to false or collateral issues.
... I am satisfied that this aspect of the evidence can be dealt with by an appropriate direction to any jury in due course.
... I am satisfied that this is ultimately an issue of fact to be decided by the jury at the trial. The final admissions of guilt in the interview at the Crown Towers appear to be very convincing and incriminating. Whether they will be accepted, either alone or with other evidence, as constituting proof beyond reasonable doubt of Lauchlan's involvement in the murder will be for a jury to determine. I am not in the least satisfied that there is anything about the evidence to characterise it as so unreliable or unsuitable to be withheld from a jury because of want of reliability. [96] ‑ [98]

Other issues

The trial judge dealt with the question whether there had been any subversion of the accused's right to silence and concluded at [113]:
The privilege against self-incrimination is the right of any citizen, where it applies, to decline to answer questions put by persons in authority or by any other person, because of the tendency which the answer might have to incriminate him. As pointed out earlier, any incriminating answer, given to a police officer or to a lay person, is capable of constituting an admission. The fact that the privilege is not invoked because the suspect is talking to a layman, or to someone whom he believes to be a layman and not a police officer does not shield the answer. Any tacit assumption that there is some form of amnesty for an offender who makes admissions to a layman, or in an unguarded moment, is quite wrong. If the admissions are made because of a mistake by the accused which has been induced by investigating police officers, such as a belief that discussion with a solicitor or counsel is privileged, whereas in reality it is being unlawfully intercepted, would give rise to an exclusion because the admission was obtained in breach of an occasion of privilege. But the present case and its methodology involves no subversion of this privilege. [113]
The trial judge also dealt with aspects of the evidence which constituted propensity evidence and concluded that an aspect of the evidence which came within this description (an incident at Queenstown in Tasmania) was inadmissible. Nothing turns on this in the present appeal.
The trial judge dealt with the evidence from the listening devices at the St Kilda apartment. The objection to reception of that evidence was based on the ground that the appellant's entire response to the undercover operation was involuntary and unfair and that the evidence was therefore such that it should be excluded in the exercise of the judicial discretion as being contrary to public policy.
The trial judge concluded that there could have been no implied threat, hope of advantage, or any other relevant matter that affected the appellant's admissions in the St Kilda apartment. He described what had been intercepted as follows:
What was intercepted by these listening devices was a dialogue between a suspect and his partner in which each discussed the former's disclosure of involvement in criminal activities which were known to the latter and which Lauchlan had recently made to a third person. The intercepted conversation tends to establish the truth of the disclosures implicating Lauchlan in Rossi's violent death and the accuracy of the account which he gave to 'Gary' in the undercover police operation. It is also a further admission itself. I see no reason, therefore, to exclude any of that intercepted conversation from evidence in the case against Darren Lauchlan.

Submissions on appeal

The original submissions of the appellant were made in a comprehensive case filed on behalf of the appellant by his counsel on 27 April 2007. That was at a time when the High Court hearing in Tofilau had commenced, but before it had concluded.
The respondent's submissions followed on 22 June 2007. This was before judgment was delivered by the High Court in Tofilau on 30 August 2007.
In view of the decision of the High Court in Tofilau, the appellant (now acting in person) filed supplementary submissions. These were answered by the respondent.
It is only necessary, for the purposes of this appeal, to refer to the supplementary submissions. Before doing that, it is necessary to make reference to the decision of the High Court in Tofilau.

Tofilau v The Queen

The High Court was actually concerned with four appeals which are the subject of the judgment in Tofilau. In addition to Tofilau's case, they were Marks v The Queen, Hill v The Queen and Clarke v The Queen. Each case raised the same issue. It was stated by Gummow and Hayne JJ at [26] as follows:
Undercover police, posing as criminals, tell a murder suspect that, to join their gang and profit from their activities, he must tell their boss the truth about his involvement in the murder. They tell him that, if he does that, the boss can and will make any problems 'go away'. The undercover police play out various scenarios designed to show the suspect how successful and powerful they are as criminals. Any initial protestations of innocence by the suspect are met with insistence upon the need to tell the truth because charging and conviction are inevitable if the gang's help is rejected. Is the suspect's subsequent confession to those who play the roles of boss and gang members a voluntary confession? [26]
In describing the facts in Tofilau's case, Gummow and Hayne JJ at [74] said:
It is not necessary to describe the techniques used by the undercover police officers. Considerable emphasis was given to instilling in the appellant a sense of confidence that association with what he was led to believe was a criminal gang would bring not only financial and personal reward but also protection against police investigation. The appellant participated in or observed what appeared to be serious criminal activity by gang members. In fact, the 'criminal' activity was staged. From time to time reference was made in conversation between the appellant and members of the gang to the appellant's connection with the death of Ms Romeo. Over time it was made plain to the appellant that it was important that the appellant tell the gang the whole truth about his background. If he did, the problem could be handled.
The covert operations culminated in March 2002. Police served a notice on the appellant foreshadowing an application to the Magistrates Court for permission to take a sample from him for DNA analysis. (He had refused to give such a sample when he was interviewed in 1999.) One of the gang members, on being told that the notice had been served, exhorted the appellant to tell the truth. He told the appellant that he did not believe what the appellant had earlier said and that he believed that the appellant had killed Ms Romeo. The appellant then admitted to killing Ms Romeo by strangling her with something she had round her neck. As the trial judge put it, the appellant was 'effectively persuaded' by one of the covert operatives to give a full and frank account of the killing to the gang's boss.
The appellant was then taken to a meeting, in a hotel room, with the man whom he understood to be the 'boss'. What happened in that room was videotape recorded. The 'boss' told the appellant that he did not have to say anything, that he could 'get up and walk out now' but that the 'boss' could not help him if he did. The boss went on to say.
'But we can help you, we can make this go away but you'll have to tell me everything that happened so that I make sure that we cover all the bases.'
The appellant then described to the 'boss' how he had killed Ms Romeo. He said that he had disposed of the scarf he had used to strangle her by leaving it in a car behind the units where Ms Romeo lived. [74] ‑ [76]
It will be seen that the factual scenario in Tofilau's case bore characteristics which were almost identically utilised in the present case.
In Tofilau, a majority of Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ (Kirby J dissenting) were all agreed that the appeals of the four appellants should be dismissed insofar as they contended that their confessions were involuntary by reason of inducements held out by persons in authority and on the basis of 'basal involuntariness' because their wills had been overborne. In one case, where it was contended that the confession should be excluded on discretionary grounds for reasons of unfairness and public policy, and because it was obtained illegally or improperly, that appeal was also dismissed.
It is convenient to refer to the conclusions of Callinan, Heydon and Crennan JJ on these essential issues.

Conclusion on inducement

The conclusion of Callinan, Heydon and Crennan JJ on this issue was in the following terms:
The Director is correct in submitting that a person to whom an accused has made admissions cannot be a person in authority at least unless that person is perceived by the accused, on reasonable grounds, to have the lawful authority of the state to investigate the circumstances. On that test, the undercover officers were not persons in authority, because each appellant lacked reasonable grounds for thinking that the undercover officers had lawful authority to investigate the offence of which that appellant, it was thought, was guilty. The only reasonable belief which the appellants could have had about those persons was that they were gangsters, not authorised police officers, and that, as the Director submitted, '[t]hey do not call upon the power of the State. They call upon the power of evil.' Accordingly, the admissions of the appellants were not the result of inducements rendering them inadmissible. [323]

Conclusion on basal involuntariness

The judgment of Callinan, Heydon and Crennan JJ makes it clear, at [325], that the doctrine of 'basal involuntariness' has the advantage that no 'person in authority' requirement need be satisfied. Their Honours made reference to Cornelius v The King (1936) 55 CLR 235 (at 246), R v Lee (1950) 82 CLR 133 at 144; McDermott v The King (1948) 76 CLR 501 at 512 and quoted the passage of Dixon J from the latter case at 512 in the following terms:
... in McDermott v The King Dixon J also said:
'It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man's will.'
It was upon the latter part of that proposition in particular that the appellants fastened. They said that the voluntariness test posed an inquiry into whether each appellant "truly had a freedom to speak or remain silent" - a 'free choice' - that is, 'a choice unconstrained by any pressure, hope of advantage or benefit or force or coercion or compulsion, a true free choice'. They also stressed the opening words of the proposition, and they noted that Dixon J said of the discretion to exclude confessions:
'In part perhaps it may be a consequence of a failure to perceive how far the settled rule of the common law goes in excluding statements that are not the outcome of an accused person's free choice to speak.' [327] ‑ [328]
Following an exhaustive review of all aspects of the concept of 'basal involuntariness', their Honours said:
'Basal involuntariness: general factual aspects
It is now necessary to apply Dixon J's test to the facts in order to assess the submissions that each appellant had no choice but to confess. First some general aspects of the facts will be noted. Then the circumstances peculiar to each appellant will be considered.
Here the undercover police officers did not use violence on any appellant, and they did not threaten it. They did not threaten any illegal act directed against any appellant and they did not threaten any illegal act against any third party whose position might cause an appellant to speak who otherwise might have remained silent. They did promise to procure a corrupt police officer to terminate the police investigations, but they never in fact intended to do any such thing. They did tell Clarke that the police had DNA evidence linking him with the crime: that was untrue, but it was not intrinsically unlawful. They thus did nothing unlawful. There was no duress or intimidation. To ask whether they did anything 'illegitimate' begs the question: if what they did fell outside Dixon J's test, it was not; if it fell within it, it was.
The police officers were at times importunate. They were insistent that each appellant confess his guilt. By their questioning they applied pressure. The question whether each appellant confessed involuntarily thus turns on whether the importunacy was so persistent, and whether the insistence and the pressure were so sustained or undue, as to overbear his will. That depends on the particular circumstances applying to each appellant. [374] ‑ [376]
The facts of each of the four cases were reviewed and in each case the challenge to the admissibility of the confessional material on the basis of 'basal involuntariness' failed.
All members of the majority agreed that in none of the cases before the court, was there compulsion of the kind that would deny 'basal voluntariness'. In each case, the appellant could and did choose not only whether to say anything about the murder which was being investigated, but also what he said about that subject. The conclusion of Gummow and Hayne JJ at [30] represents the view of the majority:
In none of the present cases was there compulsion of the kind that would deny 'basal voluntariness'. In each case, the appellant could and did choose not only whether to say anything about the murder, but also what he said about that subject. That he spoke at all because he thought that he would profit from doing so does not mean that he was not free to choose whether he spoke or remained silent about the murder. His statements were made voluntarily. [30]

Conclusions on discretionary exclusion

On the question of discretionary exclusion, Callinan, Heydon and Crennan JJ (speaking of Clarke's appeal) said:
The police had failed – and their failure was not said to be culpable – to collect sufficient evidence against Clarke to charge him. The crime being investigated was very serious[see, in relation to the seriousness of the crime, Cleland v The Queen (1982) 151 CLR 1 at 17 per Murphy J]. It had remained unsolved for 20 years. The scenario technique was one which had been in use for a long time in Canada, and had been approved by the Canadian courts. It was not embarked on as an unthinking frolic by junior officers. It had been deliberately selected by the superiors of those involved in the light of Canadian experience. No alternative was available if the investigation was to continue. It was reasonable for the police to seek to employ this technique, new in Australia, in carrying out their important duty to investigate an old crime. The technique was employed in a discriminating way, with considerable care being taken to avoid illegality. No doubt psychological pressure was built up, but conventional police interrogation of the most proper kind naturally involves pressure. Counsel submitted that the process was 'designed to circumvent the [appellant's] right to silence'. Clarke was in fact an experienced criminal who understood that he did not have to answer anyone's questions. He had not claimed any right to silence when interviewed by non‑undercover officers soon after the murder. He actively cooperated in the questioning by the undercover officers. The questioning took place in the course of a relationship which he entered freely, and did not exploit some pre-existing or collateral relationship. The interrogation elements in the conversations were patent, and consistent with the roles which he believed the undercover officers were occupying. He had not been charged, and there was no proper basis to charge him. There was no illegality and no breach of Police Standing Orders. Part III Div 1 Subdiv 30A of the Crimes Act did not apply. The failure of other investigative methods which made it necessary to conduct the undercover operation also made it necessary for a process of active 'elicitation' to take place. The admissions eventually obtained formed a significant part of the prosecution case. The operatives stressed the need to tell the truth. The undercover officers did not prey upon any special characteristics of Clarke related to his gender, race, age, education or health. The means of elicitation were not so disproportionate to the problem confronting the police as to be inherently unfair or contrary to public policy.
This conclusion was essentially agreed with by each of the other members of the majority.

The present appeal

The first ground of appeal challenges the admissibility of the appellant's admission to Gary on the basis of voluntariness. The particulars identify five bases upon which it is contended that the admission was not voluntary. The first is that the admission was made to a covert police officer, the second that the appellant was induced to make the admission, the third that the admission was only made after inducements were offered, the fourth that Gary was a person in authority and the fifth that the admission was not made voluntarily.

The principles and reasoning of the High Court in Tofilau, when applied to the facts of this case, answer these contentions. It is true that Gary was a covert police officer, but as the High Court found in Tofilau (see Callinan, Heydon and Crennan JJ at [323]), a person to whom an accused has made admissions cannot be a person in authority at least until that person is perceived by the accused on reasonable grounds to have the lawful authority of the State to investigate the circumstances. On this test, Gary was not a person in authority, because the appellant lacked reasonable grounds for thinking that he (an undercover officer) had lawful authority to investigate the offence of which it was thought the appellant was guilty. The only reasonable belief that the appellant could have had about Gary was that he was a gang boss, not an authorised police officer. It follows that the admission made by the appellant to Gary was not made by way of inducements which rendered the admission inadmissible, and was not made to a person in authority.
Even assuming that the ground of appeal extends to a contention that the admission is inadmissible because of 'basal involuntariness', there was no compulsion in the present case of the kind that would deny 'basal voluntariness'. The appellant could and did choose to say what he said about the killing of the deceased. The fact that he thought he would profit from doing so does not mean that he was not free to choose whether he spoke or remained silent about that killing. There was no sustained or undue insistence or pressure, no duress or intimidation, and there was no unlawful conduct on the part of Gary and his colleagues. The appellant's statements were therefore voluntary (Tofilau per Gummow and Hayne JJ at [30]).
It follows, in my view, that there is no substance in ground 1.
The second ground of appeal contends that the trial judge erred in ruling the admission of the appellant admissible and not excluding it in the exercise of his discretion. The same particulars are given as are supplied with ground 1.
However, the principles and reasoning of Callinan, Heydon and Crennan JJ in Tofilau at [413] also answer this ground of appeal. When applied to the facts of the present case, the principles reveal:
(a)the crime being investigated was very serious;
(b)the scenario technique was an established technique deliberately selected by those involved in the investigation of the appellant in the light of the Canadian experience;
(c)there was no alternative available if the investigation was to continue;
(d)it was reasonable for the police to seek to employ the scenario technique in carrying out their important duty to investigate the death of the deceased;
(e)the technique was employed in a discriminating way with considerable care being taken to avoid actual illegality;
(f)there was no circumvention of the right to silence, because the appellant clearly understood that he did not have any obligation to answer questions which were put to him by Gary;
(g)although he had claimed his right to silence when interviewed by police officers after the discovery of the deceased's body, he spoke freely when he made his admission to Gary and in the clear knowledge that he was not obliged to speak;
(h)the appellant had not then been charged and there was no proper basis to charge him at that time;
(i)Gary did not prey on any special characteristics of the appellant related to his 'gender, race, age, education or health' (Tofilau per Callinan, Heydon and Crennan JJ at [413]; and
(j)the means of elicitation were not so disproportionate to the problem confronting the police as to be inherently unfair or contrary to public policy.
It should also be remembered that, in this case, Gary made it clear to the appellant at the Crown Towers on 18 December 2003 that he was under no obligation to speak about the killing of the deceased. As the trial judge found at [50], he was repeatedly told that he could withdraw and Gary and the members of the gang would disappear, and the appellant would never hear of them again. Gary stressed that the appellant did not have to talk to him about the killing of the deceased at all. As the trial judge found at [51]:
'Gary' stressed that Lauchlan did not have to talk to him about it and was free to leave but that, if he wished to join the gang, 'Gary' would need to have a full truthful account of any involvement so that, if possible, he could 'fix things' and make any trouble go away.
In my opinion, there was no basis upon which it could be said that the trial judge should, in the exercise of his discretion, have excluded the admission made by the appellant to Gary.

The St Kilda Road admissions

There is no ground of appeal which contests the admissibility of the conversation between the appellant and Hammond in the apartment at St Kilda on the night of 18 December 2003 which was recorded by an authorised listening device and in which the appellant gave a description of his interview with Gary and described how he had admitted to the killing of the deceased, and the effect which it had upon him. The trial judge concluded at [21] that these exchanges amounted to further admissions by the appellant of his involvement in the murder of the deceased.
At the hearing of the appeal, the appellant contended that aspects of the transcript of the conversations with Hammond were inaccurate. One example was given, but it is of no consequence in the appeal. I have already quoted the trial judge's strong direction to the jury on the limitations of the transcript. It could not be said that there was any risk that the jury would have misused the transcript.

Supplementary submissions of appellant

The appellant has endeavoured in supplementary submissions to distinguish Tofilau from his own case. A number of the submissions begin with the words 'Darren Lauchlan states' and thereafter the appellant seeks to give evidence. However, he did not give evidence at either the voir dire hearing or the trial itself. He is not now able to put forward any evidence of what his position was.
There are four points made by the appellant in his supplementary submissions, and I shall deal with each in turn.

Submission 1

In this submission, the appellant contends that Tofilau's case can be distinguished because Tofilau had relatives who resided in Carlton only five minutes' drive from the hotel room at the Crown Towers where he made his admissions. The appellant seeks to say that he was resident in Tasmania and had no relatives, friends or acquaintances in Victoria. His spouse was pregnant and he had two infant children. They were all at the apartment in St Kilda during the time he was meeting with Gary at the Crown Towers. He contends that 'this fact made the meeting intimidating and a fear of implied duress'.
Not only did the appellant fail to give evidence at either the voir dire or the trial, but he did not, in his final video record of interview with police after his arrest, say anything about having been in fear or 'implied duress'. There is no evidence upon which this conclusion can be drawn, and the submission has no substance.

Submission 2

This submission seeks to distinguish Tofilau's case on the basis that Tofilau confessed to disposing of a scarf he had used to strangle Ms Romeo, and then, later during his interview with police, he was shown the scarf that was found and could not explain how he knew where it was. I am not certain how this is relevant to the appellant's case, but the appellant contends that he was verbally coerced to make the admissions he did to Gary and that he was 'overwhelmed with thoughts of what potentially could happen to his family and himself (reprisals)'.
Again, the point must be made that the appellant did not give evidence at either the voir dire or the trial. He cannot now give evidence as to what his state of mind was.
The appellant has a subsidiary contention. It is that he told Gary that he had hit the deceased with a piece of steel resembling a dumbbell and yet Dr Clive Cooke said in evidence at the trial that he presumed that the deceased had been killed by a blow from a tree branch, or a piece of wood. The appellant contends that his admission to Gary must therefore have been a fabrication about the murder of the deceased.
This latter contention is not a basis upon which any admission made by the appellant to Gary could be ruled inadmissible. If there was an inconsistency between what the appellant said to Gary and the opinion expressed by Dr Cooke as to the cause of death of the deceased, that was a matter for the jury to consider. There is no ground before the court which contends that the verdict was not in accordance with the evidence and is unreasonable or cannot be supported: Criminal Appeals Act 2004 (WA), s 30(3)(a). The submission therefore has no substance.

Submission 3

In this submission, the appellant contends that Tofilau's case can be distinguished because the officer‑in‑charge of the police undercover team in that case gave evidence at the trial of Tofilau that he had been provided with only basic information about the circumstances regarding Ms Romeo's death. The appellant says that, in his case, undercover police provided him with facts relating to the death of the deceased. There is reference by the appellant in his submission to a statement of Mr Warren Cain, but no evidence was given at the trial by Mr Cain. Any reference to what he may have said in the statement is therefore irrelevant.
I am unable to accept that the appellant's submission has any substance. Whatever Gary may have said about the facts of the case, the jury still had before it the statements of the appellant. These were to be considered not only in the light of what he said to Gary, but in the light of what he said later to Hammond at the St Kilda apartment.

Submission 4

This submission makes reference to Tofilau's case and to the question of 'duress or intimidation'. The appellant suggests (again) that because he and his family had been brought to Melbourne, because he was searched as he entered the Crown Towers hotel room in which Gary was situated and because no weapons were found upon him, that these circumstances 'admitted Lauchlan to a state of implied duress'.
I repeat that the appellant gave no evidence at either the voir dire or his trial. He is not now able to seek to give evidence about his state of mind.
The submission goes on to relate the circumstances in which the appellant had been present when 'crimes' were committed at the behest of Gary and contends that 'any person would feel under pressure if they displeased a person of this alleged criminal activity that at least a disappearance could result'. There is again a contention that there was pressure, intimidation and duress placed upon the appellant.

The appellant gave no evidence about this matter upon the voir dire or at the trial, and he cannot now put forward these views. There is no substance in the fourth submission.
There were no other oral submissions made by the appellant when he argued the appeal.

Conclusion

In my opinion, the appellant has failed to make out either ground 1 or ground 2 of the grounds of appeal. Further, the supplementary submissions that he has filed (which relate only indirectly to the grounds) are of no substance.
The appellant's case is, in all material respects, indistinguishable from that of Tofilau. The principles expressed by the High Court of Australia in Tofilau govern the disposition of this appeal.
In my opinion, the appeal should be dismissed.
MURRAY AJA: I agree with Miller JA. I have nothing to add to his Honour's reasons. The appeal should be dismissed.

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Citations

Lauchlan v Western Australia [2008] WASCA 227

Most Recent Citation

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