Lindsay v The King; Rankine v The King; Woods v The King

[2022] SASCA 138

Supreme Court of South Australia

(Court of Appeal: Criminal)

LINDSAY v THE KING; RANKINE v THE KING; WOODS v THE KING

[2022] SASCA 138

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Doyle and the Honourable Justice David)

21 December 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL

CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - MISCELLANEOUS MATTERS - JOINT TRIAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL PERSONS

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED

Application for permission to appeal against conviction.

Each of the appellants was convicted on a joint trial before a jury of the aggravated robbery and attempted aggravated robbery of two employees of the V Hotel.

The prosecution called evidence in the case against one of the appellants, Mr Rankine, of alleged admissions made to two undercover police officers whilst Mr Rankine was in police custody on unrelated offences. The evidence of the alleged admissions primarily comprised evidence given by the two undercover officers, who gave evidence under ‘court names’. The undercover officers were wearing audio recording devices at the time the admissions were alleged to have been made but the recordings were largely inaudible. It was agreed that none of the alleged admissions could be heard on the recordings. Mr Rankine was not told of the existence of the recordings as soon as practicable after they were made and was never provided with a copy of the audio recordings, even after he unsuccessfully sought production of the recordings by subpoena. Further, the undercover officers’ notes of the conversation in which the admissions were alleged to have been made, were not read to Mr Rankine as soon as practicable after the conversation.

Mr Rankine unsuccessfully sought an order excluding the evidence of the alleged admissions on the ground that the police officers had failed to comply with s 74D of the Summary Offences Act 1953 (SA) and on the ground of forensic unfairness.

The Judge directed the jury that the evidence of the alleged admissions was not evidence against Mr Lindsay nor Mr Woods.

Held by the Court (granting permission to appeal and allowing the appeal):

1.The Judge erred in finding that s 74D of the Summary Offences Act 1953 does not apply to an undercover police operation and therefore erred in failing to exclude the evidence of the alleged admissions and failing to warn the jury about the non-compliance with those obligations.

2.There is no practical inconsistency between the Criminal Investigations (Covert Operations) Act 2009 (SA) and the Summary Offences Act 1953 from which an intention to abrogate Part 17 of the Summary Offences Act 1953 in its application to covert operations can be discerned.

3.The Judge erred in failing to exclude the evidence of the alleged admissions in the exercise of the unfairness discretion.

4.The Judge erred in failing to give appropriate directions concerning the forensic disadvantage of Mr Rankine in contesting the alleged admissions.

5.There has been a miscarriage of justice in the trials of Mr Woods and Mr Lindsay resulting from the joint trial with Mr Rankine in circumstances where the evidence of the alleged admissions was wrongly received into evidence.

6.There is to be a new trial of each of the appellants on the Information in the District Court.

Criminal Investigation (Covert Operations) Act 2009 (SA) ss 4, 4(2)(d), 5, 6, 7, 12, 14, 16, 17, 18, 31, 32, 33, 35, 37, 40; Summary Offences Act 1953 (SA) Pt 17; ss 74C, 74D, 74E, 74E(1)(b), 74E(2)(a), 74E(6); Surveillance Devices Act 2016 (SA) s 4(2)(b)(ii), referred to.

Em v The Queen (2007) 232 CLR 67; Kernaghan v State of Western Australia (2015) 253 A Crim R 389; McKinney v The Queen (1991) 171 CLR 468; R v Belford; R v Bound (2011) 208 A Crim R 256; R v Swaffield; Pavic v The Queen (1998) 192 CLR 159, discussed.

Carr v The Queen (1988) 165 CLR 314; Davies v The Director of Public Prosecutions [1954] AC 378; Duke v The Queen (1989) 180 CLR 508; Kelleher v The Queen (1974) 131 CLR 534; Medcraft v The Queen [1982] WAR 33; Pavitt v Regina (2007) 169 A Crim R 452; R v Dolan (1992) 58 SASR 501; R v Franklin (2001) 3 VR 9; R v James (1983) 36 SASR 215; R v Juric (2002) 4 VR 411; R v Murphy (1996) 66 SASR 406; R v Rigney (1975) 12 SASR 30; R v Teitler [1959] VR 321; R v Turnball (1985) 17 A Crim R 370; R v Webbe and Brown [1926] SASR 108; Sidaros v The Queen (2020) 15 ACTLR 64, considered.

LINDSAY v THE KING; RANKINE v THE KING; WOODS v THE KING
[2022] SASCA 138

Court of Appeal – Criminal:    Kourakis CJ, Doyle and David JJA

KOURAKIS CJ.

Introduction

1. Each of the appellants was convicted on a trial before a jury of the aggravated robbery and attempted aggravated robbery of two employees of the V Hotel at Virginia just after 2:00 am on 9 October 2019.  The prosecution evidence against them comprised:

   (a)Evidence of the fingerprints of Mr Lindsay found on a cash box, and of the fingerprints of Mr Woods found on an ATM drawer, both of which had been taken during the robbery and discarded in a park by the early morning of 9 October 2019.

   (b)Evidence of communications between Mr Lindsay, Mr Rankine and Mr Woods in the hours leading up to the robbery indicative of an arrangement to gather together.

   (c)The use of a Hyundai motor vehicle hired by Ms Tonya Agius, the de facto partner of Mr Woods and a relative of Mr Rankine, as a getaway vehicle.

   (d)The presence of Mr Woods and Mr Lindsay together at the Highlander Hotel on the morning of 9 October 2019 where they spent money on poker machines.

   (e)Similarities between a still photograph of one of the robbers, who was carrying a tyre iron, taken from CCTV footage, and a photograph of Mr Rankine depicting his appearance some weeks after the robbery.

   (f)Admissions allegedly made by Mr Rankine on 27 October 2019 in a conversation with undercover police officers while he was detained at the Adelaide City Watch House, following his arrest on unrelated offences, that he had robbed the V Hotel and that one of his co-offender’s fingerprints were found on the cash box (the alleged admissions).

2. The undercover police officers were wearing audio recording devices but the recordings of the interview were largely inaudible for reasons which were not definitively explained.  In particular, none of the alleged admissions could be heard on the recordings.

3. Mr Lindsay and Mr Woods gave evidence in their respective defences.  They denied committing the robbery.  Their explanations for the presence of their fingerprints on the cash box and ATM drawer respectively were that they were passengers in the Hyundai on the morning of 9 October 2019, when it was driven by another man, Mr Peter Morrison, and that those items were in the car.

4. Mr Rankine did not give evidence. He unsuccessfully sought an order excluding evidence of the alleged admissions on the ground that the undercover police officers had failed to comply with all of the measures mandated by s 74D of the Summary Offences Act 1953 (SA) (the SO Act) for the recording of conversations between police officers and suspects and on the ground of forensic unfairness.

5. Mr Rankine’s defence was conducted in a way to suggest that Mr Morrison was the robber who was carrying the tyre iron.  In the course of cross-examination of a forensic expert who gave evidence comparing the photograph of Mr Rankine and the photograph of the robber taken from the CCTV footage, Mr Rankine’s counsel produced two photographs of Mr Morrison and asked a forensic expert, Dr Sorell, to compare the skin colouring of Mr Morrison in those photographs with the skin colouring of the offender carrying the tyre iron.  To counter the suggested possibility that Mr Morrison, and not Mr Rankine, was the robber carrying the tyre iron, the prosecution called Mr Morrison’s de facto partner, Ms Tarynne Borsi‑Watson, to provide an alibi for him.  She testified that Mr Morrison was with her from the evening of 8 October 2019 through to morning of 9 October 2019 and thereby gave Mr Morrison an alibi for the robbery of the V Hotel.  Ms Borsi‑Watson and Mr Morrison were also at the Highlander Hotel gambling on poker machines on the morning of 9 October 2019. 

6. When Mr Rankine was arrested for the robbery of the V Hotel, he denied the offending and claimed that he would never have committed an offence with Mr Woods because he and Mr Woods had fallen out over Mr Woods’ violent behaviour towards Ms Agius.  Mr Woods unsuccessfully sought a separate trial because of the prejudicial effect of that statement.

7. Mr Rankine has appealed against his conviction on the following grounds:

   (1)The Judge erred in finding that s 74D of the SO Act which requires police to make an audio-visual record of conversations with persons suspected of committing an offence and to adopt certain other procedural safeguards did not apply to an undercover police operation, and therefore erred in:

   ·       failing to exclude the evidence of the alleged admissions; and

   ·                failing to warn the jury about the non-compliance with those obligations.

   (2)The Judge erred in failing to exclude evidence of the alleged admissions in the exercise of the unfairness discretion.

   (3)There was a miscarriage of justice because the Judge erred in failing to give appropriate directions concerning the forensic disadvantage of Mr Rankine in contesting the alleged admissions.

   (4)There was a miscarriage of justice because the Judge failed to give an accomplice warning in relation to the evidence of Ms Borsi-Watson.

8. I would grant permission to appeal and allow the appeal on the first three grounds.  The proviso cannot be applied when evidence of a confession which is a major pillar of the prosecution case has been wrongly admitted.

9. Part 17 of the SO Act was not complied with in that no attempt was made to make an audio‑visual recording of Mr Rankine’s conversation with the undercover police officers (the conversation) even though it was reasonably practicable to do so. More strictly, having regard to the onus cast by s 74D of the SO Act the prosecution failed to prove that it was not reasonably practicable to do so. In the alternative, the prosecution evidence did not establish that it was not reasonably practicable to make an audible recording of the whole of the conversation. Finally, it was reasonably practicable to read out the notes made of the conservation by the undercover police officers to Mr Rankine and to invite him to point out errors or omissions when he was arrested, if not earlier, but no police officer did so.

10. The contention of the Director of Public Prosecutions (SA) (Director) that the Criminal Investigations (Covert Operations) Act 2009 (SA) (Covert Operations Act) rendered Part 17 of the SO Act inapplicable to covert operations must be rejected; there is no direct or practical inconsistency between the two Acts from which an intention to abrogate the SO Act in its application to covert operations can be discerned.

11. The interests of justice did not require the admission of the evidence of the alleged admissions in accordance with s 74E(1)(b) of the SO Act.

12. The evidence should also have been excluded because it was forensically unfair to admit it, primarily, because no caution was administered even though the investigating detectives strongly suspected on reasonable grounds that Mr Rankine had committed the robbery and had commenced to gather evidence with the intention of charging him. The Judge’s directions on the forensic disadvantage of Mr Rankine in contesting the alleged admissions, which were made in circumstances which deprived him of any capacity to challenge the police account with independent evidence, were insufficient to avoid a miscarriage of justice and did not discharge the statutory requirement to direct the jury that the police had failed to comply with s 74D of the SO Act.

13. The Judge should have directed the jury that there was evidence on which they could find that Ms Borsi-Watson was an accomplice and that if they so found they should treat her evidence with caution.  However, no miscarriage of justice resulted from that failure because Ms Borsi-Watson’s evidence did not directly implicate Mr Rankine and there was circumstantial and direct evidence of his complicity.

14. I would direct that there be a new trial of Mr Rankine on the Information in the District Court.

15. Mr Woods appeals on the grounds that:

    (1)The verdict is unsafe and satisfactory.

    (2)The learned trial Judge erred in refusing his application for a separate trial.

    (3)The learned trial Judge erred in allowing the admission of the passages in Mr Rankine’s record of interview referring to Mr Woods and making the allegation that he had been violent against Ms Agius.

16. I would grant permission to appeal but dismiss Ground 1.  The evidence of the presence of Mr Woods’ fingerprint on the ATM drawer and the messages exchanged between Mr Lindsay and a phone used by Ms Agius and/or Mr Woods leading up to the commission of the robbery, together with the evidence that Mr Woods was playing poker machines at the Highlander Hotel later on that morning strongly supports the conclusion that he was one of the robbers.  His long-term association with Mr Lindsay, who was also present at the Highlander Hotel and whose fingerprint was found on the cash box that morning, reinforces that conclusion.  The verdict of guilty demonstrates that the jury rejected Mr Woods’ testimony.  I am not persuaded that the prosecution evidence failed to prove his guilt beyond reasonable doubt. 

17. Ground 3 is misconceived in that Mr Rankine’s statement was never admitted as evidence against Mr Woods.  I would refuse permission to appeal on this ground.  Its admission against Mr Rankine was grounds for a separate trial.  Putting aside for now the issue of the wrongful admission of Mr Rankine’s conversation with the undercover police officers, the Judge was right to decline to exercise his discretion to order a separate trial.  The prejudicial effect of the allegation of domestic violence was not such as to outweigh the considerations which supported holding a joint trial.  In that latter respect, I refer to the substantial body of prosecution evidence which was admissible against all of the appellants and the desirability that alleged co-offenders be tried together.  There was therefore no miscarriage of justice in holding a joint trial.

18. However, I am satisfied that there has been a miscarriage of justice resulting from the joint trial with Mr Rankine in circumstances in which Mr Rankine’s alleged admissions were wrongly received into evidence.  I would grant permission to appeal on Ground 2 and allow the appeal.  Mr Rankine’s admissions coloured the evidence of the text exchanges between the appellants leading up to the robbery.  If they were properly admissible against Mr Rankine, their prejudicial effect against Mr Woods would have been an inevitable incident of the joint trial.  The Judge’s direction to the jury that the admissions were only evidence against Mr Rankine would adequately have addressed the risk of a miscarriage of justice in that context.  However, because Mr Rankine’s admissions were wrongly received into evidence, there has been a miscarriage of justice in Mr Woods’ trial.  I am not persuaded that the prosecution evidence proved his guilt beyond reasonable doubt.  Nor have I had the advantage of hearing Mr Woods’ testimony.  The jury’s verdict may have been affected by the prejudicial effect of hearing Mr Rankine’s admissions.  Finally, even if I were satisfied of Mr Woods’ guilt, the proviso should not be applied to affirm his conviction when Mr Rankine, in whose trial the material prejudicial to Mr Woods was admitted, will be retried without the alleged admissions being adduced.  I therefore would not apply the proviso.

19. Mr Lindsay appeals on the following grounds:

    (1)The learned trial Judge erred in not ordering that the trial of Mr Lindsay be heard separately from the trial of Mr Rankine because of the prejudicial effect against Mr Lindsay of the evidence that Mr Rankine had told undercover police that one of the persons with whom he had committed the robbery had left a fingerprint on the cash box.

    (2)In the alternative to Ground 1 that the Judge erred in not excluding the statement made by Mr Rankine to the undercover police officers from the evidence. 

20. The second ground, like Mr Woods’ Ground 3, is misconceived.  The statement made by Mr Rankine to the undercover police officers was never evidence against Mr Lindsay.  The Judge so directed the jury.  It was a necessary consequence of the holding of the joint trial, however, that the jury would hear that evidence, admissible only against Mr Rankine, when at the same time considering the charges against Mr Lindsay.  Accordingly, Ground 2 adds nothing to the first ground.  I would refuse permission to appeal on Ground 2.

21. If it were the case that Mr Rankine’s admissions were properly received into evidence against him, their prejudicial effect on Mr Lindsay was a necessary consequence of the proper exercise of the Judge’s discretion to not order separate trials.  The interests of justice strongly supported a joint trial of the accused for the robbery of the V Hotel.  The admissible evidence against all three of them was inextricably linked.

22. However, it is a necessary consequence of my conclusion that the evidence of Mr Rankine’s alleged admissions should not have been received into evidence on Mr Rankine’s trial, that there has been a miscarriage of justice in Mr Lindsay’s trial.  The miscarriage of justice is the collateral prejudicial effect on Mr Lindsay of the evidence of Mr Rankine’s admissions and reference to a co-offender’s prints having been located which should not have been adduced and heard by the jury at all.  I am not persuaded that the prosecution evidence proved Mr Lindsay’s guilt beyond reasonable doubt.  The jury’s rejection of his evidence may have been affected by hearing the evidence of the admissions alleged against Mr Rankine.  I have not had the benefit of hearing Mr Lindsay’s testimony.  Moreover, to affirm Mr Lindsay’s conviction when the material prejudicial to Mr Lindsay will not be led on Mr Rankine’s new trial is, in itself, a reason not to apply the proviso. I would therefore order that there be a new trial of the charges against Mr Lindsay.

    The prosecution case

23. The doors of the gaming room of the V Hotel were locked at 2:00 am on 9 October 2019.  Mr Sebastian Hudson was in the hotel office behind the gaming room.  Two other employees, Ms Jodie McLeod and Mr Raymundo Aviles, were in the gaming room counting coins from the gaming machines.

24. At about 2:17 am on 9 October 2019 Mr Hudson heard Ms McLeod scream.  He stood up from his desk and saw a man, dressed in black running towards him with a tyre iron.  The man yelled at Mr Hudson to sit down as a second man carrying a handgun entered the room.  Both men demanded that Mr Hudson open the safe but he told them that he could not.  The man with the tyre iron then took two ATM drawers and a cash box from the table and the other man took the money and some empty ATM drawers which were on the floor next to the safe. 

1. When they left, Mr Hudson walked out of the office and noticed a third man in the strong room emptying coins from plastic canisters into a rubbish bin.  That man carried the bin with him as he moved towards the entrance.

2. Mr Hudson described the man carrying the tyre iron to police as being of Aboriginal appearance, dark skin, about 5’ 10” tall, and athletic build.  He told police that the man with the tyre iron was wearing a black balaclava over his face but his eyes were exposed.  He wore a black poncho covering his body to his feet.  In his evidence, Mr Hudson testified that after viewing the CCTV he believed that the offender’s head covering was a t‑shirt and not a balaclava.

3. Ms McLeod said that she observed two men holding guns standing in front of her in the cashier area.  A third taller man was holding a tyre iron.  Ms McLeod, in her statement to police, described the men as African or Sudanese in appearance.  In her evidence Ms McLeod explained that her attribution of Sudanese ethnicity arose from her fatigue having worked a 10 hour shift and the chaotic and frightening scene.  She maintained in evidence that all three had darker skin.  Ms McLeod testified that the offenders were dressed in black clothing and wore black fabric face masks which covered their hair and the bottom half of their faces.  One of the men with a gun demanded money from Ms McLeod and warned her not to press any alarms.  She told him to take whatever coins he wanted.  She saw the taller man struggling to carry away a green bin filled with coins.

4. Mr Aviles, a security guard, gave evidence that he heard Ms McLeod crying while he was collecting drop boxes from the bottom of the poker machines.  He approached the counter and saw Ms McLeod crying.  Mr Aviles heard Mr Hudson saying ‘please don’t hurt anyone, just take the money’. 

5. Mr Aviles described a man he saw carrying a metal bar as taller than the other two, about 180 cm in height.  His face was uncovered.  He said that he had ‘dark skin and his eyes [were] light brown sort of thing’.  The two shorter men were perhaps 165 cm in height. 

6. The robbery was executed within about 90 seconds.  Close to $13,000 in coins, a cash box, a drop box from a poker machine and ATM drawers were taken.

7. CCTV from the V Hotel depicts a small silver hatchback park at the front of the hotel and three males exit the vehicle immediately before the robbery.  Stickers can be seen on the car in the same locations that the rental car firm, AVIS, places stickers.  The CCTV footage shows three people returning to the Hyundai.  Ms Agius had hired a grey Hyundai S093BZC from the AVIS desk at the Adelaide Airport on 27 September 2019 at 4:46 pm.  Avis reported it stolen on 4 October 2019. 

8. CCTV footage from inside the hotel at the time of the robbery shows a male offender with a tyre iron.  At one point his face covering came down making his nose and eyes visible.  Dr Sorell, a digital evidence specialist, enhanced the still images from the CCTV and placed them next to arrest photographs of Mr Rankine to compare the features of their faces.  He was called to provide the foundation for the receipt of those images.  Dr Sorell gave police a statement commenting on similarities between the facial features of the offender and the facial features of the Mr Rankine including darker skin pigmentation on the forehead, a lighter patch below the left eye and upper cheek and consistency in the hairline and eyebrow shape.  However, that evidence was not led before the jury.  I interpolate here that some similarity between the offender and Mr Rankine would have been apparent to anyone who had viewed the CCTV footage and who saw Mr Rankine at the time of his arrest.

9. Mr Rankine’s counsel addressed the jury on some similarities between the photograph of Mr Morrison, which he had produced to Dr Sorell, and the offender with the tyre iron. 

10. Records of the mobile phone service subscribed to by Mr Lindsay (the 396 service) showed that he had regular contact with a service used by Mr Rankine (the 7473 service) between 6:52 pm on 8 October 2019 and 1:03 am on 9 October 2019.  Contact between those services resumed between 6:00 am to 7:00 am on 9 October 2019. 

11. At 7:12 pm on 8 October 2019 Mr Lindsay sent a message to Mr Rankine saying ‘Trevor’.  At 10:05 pm Mr Lindsay sent a text to Mr Rankine saying: ‘My number 0488 763 969’.  Shortly afterwards Mr Lindsay sent a follow up text to Mr Rankine service saying: ‘Hurry up or I’m going’.  The mobile phone used by Mr Rankine was in the area of Gepps Cross shortly after 1:00 am on 9 October 2019.  It was further north than Gepps Cross just after 3:00 am.

12. A telephone service used by Ms Agius and/or Mr Woods (the 7980 service) also exchanged messages with Mr Lindsay on 8 October 2019.  At 10:11 pm Mr Lindsay attempted unsuccessfully to call the 7980 service.  At 10:13 pm Mr Lindsay sent a text to the 7980 service saying: ‘Your not coming with us ok don’t get angry with us when you miss out ok’.  A follow-up text, a minute later, said: ‘You watch this’.  At 10:36 pm the 7980 service sent a text to Mr Lindsay saying: ‘I’m on my way’.  At 10:48 pm Mr Lindsay replied: ‘Ok just park at the front with it’.  It was followed quickly by another message which said: ‘Knock on the door’ and a little later, at 10:51 pm, with two messages which read ‘Steven will be inside’ and ‘I’ll be in the shower’ respectively.  At 11:03 pm the 7980 service sent a message to Mr Lindsay saying: ‘He just left’.  Mr Lindsay enquired by text: ‘How long ago’ and the 7980 service replied: ‘When I sent u the msg’.  At 11:35 pm Mr Lindsay replied to the 7980 service: ‘Yeah he’s here’ to which the 7980 service replied at 11:36 pm: ‘Okay’.

13. The clear inference from the above is that the message sent from the 7980 service at 10:36 pm was sent by Mr Woods and the messages sent from that service at 11:03 pm were sent by Ms Agius.

14. At about 7:00 am on 9 October 2019 the witness, Ms Vater, was walking her dog at Kentish Green Park in Para Vista, just north of Grand Junction Road near the corner of Nelson Road and Montague Road.  Ms Vater found the drop boxes and the cash box which had been taken in the V Hotel robbery.  Police later identified Mr Lindsay’s thumbprint on the cash box and Mr Woods’ fingerprint on an ATM drawer.

15. The Hyundai involved in the robbery is shown on CCTV footage arriving at the Highlander Hotel carpark on the morning of 9 October 2019.  CCTV footage taken inside the Highlander Hotel shows Mr Lindsay and Mr Woods gambling on poker machines that morning.  At about 10:50 am, Mr Woods drove the Hyundai out of the carpark with Mr Lindsay seated in the front passenger seat.  Mr Morrison and Ms Borsi-Watson were seated in the rear seats.  Police observed the Hyundai in the rear carpark of the Highlander Hotel at that time.  They attempted to stop it, but it evaded them.

16. At about 1:00 pm on 11 October 2019, Mr Woods was arrested for unrelated offences.  He was in possession of a mobile phone which was seized by police, but that phone was not connected to the 7980 service.  The charges were later withdrawn but he remained in custody between 11 and 29 October 2019.  At about the time of his arrest Mr Woods was using a dark-coloured Mini Cooper.  He was arrested for the V Hotel robbery on 7 January 2020.

17. Mr Lindsay was arrested for the V Hotel robbery on 14 October 2019.  He made a successful bail application on 21 October 2019 in the Adelaide Magistrates Court but he remained in custody pending a review of the decision to grant him bail.  The review was heard in the Supreme Court on 23 October 2019.  In open court, the prosecutor referred to the items found by Ms Vater in Kentish Green Park and informed the Court that Mr Lindsay’s fingerprints were found on the cash box.

18. Mr Rankine was arrested on 4 November 2019, about a week after his conversation with the undercover police officers.  Witness statements which were before the Judge for the purposes of the application to exclude evidence of the alleged admission showed that when Mr Rankine was told that he was being arrested for the V Hotel robbery and that he could have a solicitor or friend present during any interrogation, he responded that he did not want to answer any questions.  He challenged the officer to inform him of the evidence on which they relied, saying ‘What’s the so-called evidence that I’ve done armed robbery or whatever the fuck?’.  At one point, in an apparent reference to his detention from the time of his arrest for the unrelated offences, he said, ‘Yous had all fucking week to try and do this shit’.  Later, when specifically questioned about the V Hotel, he said ‘It wasn’t me’.  When Mr Rankine was told that Dr Sorell had made the photographic comparison and could not rule him out as being one of the robbers, he mocked the police for relying on evidence that he could not be ‘rule[d] out’, saying ‘it could be me or it could be twenty other people or whatever’.  The arresting officers did not tell Mr Rankine that it would be alleged that he had made admissions to the undercover police officers.  He denied the offences.  In particular, he claimed he would never commit an offence with Mr Woods because he had assaulted Ms Agius with ‘part of a tommy-axe’.

19. As I earlier recounted the prosecution called Mr Morrison’s de facto partner, Ms Borsi-Watson, primarily to provide an alibi for him in order to counter the possibility that Mr Morrison, and not Mr Rankine, was the robber with the tyre iron as put to Dr Sorell.  Ms Borsi-Watson gave evidence that her relationship with Mr Morrison was a volatile one but had subsisted for about 15 years.  Ms Borsi‑Watson testified that in October 2019, Mr Morrison was staying with her, more or less permanently, at Barli Crescent, Gepps Cross.  In October 2019 Mr Morrison was detained in custody for a day or so.  On his release, he caught a bus to Barli Crescent where he arrived at about 4:30 pm.  Ms Borsi-Watson testified that both she and Mr Morrison remained there together all night and that on the following morning she and Mr Morrison were picked up by Mr Woods and Mr Lindsay in a small, possibly silver-coloured, car.  She sat in the back of the car with Mr Morrison.  She was dropped off at the Gilles Plains post office but could not say at what time.  She was later driven to the Highlander Hotel.  On Ms Borsi‑Watson’s evidence, she was with Mr Morrison throughout the night of the robbery. 

20. When first asked, Ms Borsi-Watson could not recall why she went to the post office but when pressed in cross-examination by Mr Rankine’s counsel about the source of the money she later spent at the Highlander Hotel she claimed to have collected from the post office money sent by her mother even though earlier in her evidence, she had testified that the money she gambled was from a Centrelink payment.  Ms Borsi-Watson testified that she was picked up from the post office by Mr Morrison whom she had phoned to collect her.  They then drove to the Highlander Hotel in the Hyundai where they found Mr Woods and Mr Lindsay.  Ms Borsi-Watson gave evidence that she gambled away between $70 to $90 in the pokies room.  After losing that money, she and Mr Morrison waited for the others in the Hyundai.  Mr Morrison returned to the gaming room briefly to ask Mr Woods and Mr Lindsay to hurry up.  When they came out of the hotel, they gave Ms Borsi‑Watson and Mr Morrison a lift back to Barli Crescent. 

21. Mr Rankine’s counsel put to Ms Borsi-Watson that she was lying about spending the night with Mr Morrison in order to give him a false alibi.  In response to questioning by Mr Rankine’s counsel, Ms Borsi-Watson agreed that Mr Morrison often assaulted her.  She denied that she and Mr Morrison were knowingly spending the proceeds of the robbery.  She claimed that she did not see how much Mr Morrison gambled.

22. The prosecution called evidence in the case against Mr Rankine of the alleged admissions he made to the two undercover police officers. The officers gave evidence under the pseudonyms, or ‘court names’, of Hamilton and Anderson. That course was authorised by certificates issued to each of them, by the Deputy Commissioner of Police and delegate of the Commissioner, pursuant to s 33 of the Covert Operations Act, to which I return below.

23. The recordings made by each of them of their interview of Mr Rankine were largely inaudible and it was common ground that the admissions of which they testified could not be heard on the recordings.  The evidence which Hamilton and Anderson gave of those admissions was broadly consistent with notes they made in the hours after the conversations which I set out, in part, below. 

24. Counsel for Mr Rankine impeached their evidence on the basis of such inconsistencies as there were in and between their accounts.  Their credibility was also challenged on the ground that they had collaborated in the preparation of their affidavits in which they had deposed to those admissions.  The paragraphs were in all relevant aspects identical but both denied having collaborated on the wording of the paragraphs and could not explain why the same words were used. 

25. Only a short segment of a composite of a separate video recording and the audio recordings of the undercover operatives was received into evidence.  Its relevance was in respect of a factual dispute concerning whether, and when, Mr Rankine had made a ‘V’ shape with his fingers to ‘sign’ the name of a hotel he had admitted robbing.

26. The Judge directed the jury that the evidence of the statements made by Mr Rankine to undercover police officers was not evidence against Mr Lindsay, and that neither were the comments he made about Mr Woods on his arrest, evidence against Mr Woods:

    As you know from what I said during the trial, whatever was said by Mr Rankine to the undercover officers on 27 October 2019 is not evidence with respect to Mr Woods, nor with respect to Mr Lindsay.  You must ignore it altogether when considering both of them.  The same goes for Mr Rankine’s interview with the police on 4 November 2019, Exhibit P29.  That is also not evidence with respect to Mr Woods, nor Mr Lindsay, and must be ignored altogether in considering both of them.

    The defence cases

27. Mr Rankine did not give evidence. 

28. Both Mr Woods and Mr Lindsay testified and denied that they were at the V Hotel when it was robbed and denied any involvement in the robbery.

29. Mr Lindsay gave evidence that he did not meet with Mr Rankine or Mr Woods on 8 October 2019, nor in the early hours of the following morning.  He testified that he was not at the V Hotel when it was robbed.  He agreed that he was in the Hyundai later on the morning of 9 October 2019. 

30. Mr Lindsay agreed that that he was using the 3963 service in the early part of October 2019.  He said that at about that time he was using the drugs fantasy, cannabis and methylamphetamine.  He had no permanent residence and was couch surfing.  He agreed that he was at the Highlander Hotel on the morning of 9 October 2019 and that his image was amongst the stills taken from the CCTV tapes of that hotel. 

31. Mr Lindsay deposed that he had no recollection of sending the texts with the word: ‘Trevor’ or sending his mobile phone number to that same service.  He could not remember sending the text which read: ‘Hurry up or I’m going’.  He suggested that the exchange of texts with Ms Agius and/or Mr Woods concerned Ms Agius’ missing out on scoring drugs.

32. Mr Lindsay testified that he visited his drug dealer at Nailsworth on the night of 8 October 2019.  He was given a lift to the home of Mr Morrison and Ms Borsi‑Watson at Barli Crescent by a person who was either one of the dealer’s customers or one of his friends.  He stayed at Barli Crescent for a few hours.  He left in a silver Hyundai driven by Mr Morrison, travelling south from Gepps Cross and returning to Nailsworth around daybreak at 5:00 am or 5:30 am.  There were some other young men in the car.  He was affected by drugs.  Mr Lindsay testified that he returned to Barli Crescent at about 9:30 am in the Hyundai.  He did not stay long before travelling to the Highlander Hotel, again in the Hyundai.  He gave evidence that he gambled in the Highlander Hotel gaming room but that the money was not the proceeds of the robbery of the V Hotel.

33. Mr Lindsay was shown the cash box but claimed that he had no memory of seeing it prior to the trial.  Mr Lindsay testified that he had never handled it and could not explain how his fingerprints came to be on it.  His counsel suggested to the jury that Mr Lindsay’s prints may have been left on the cash box after he had travelled in the Hyundai on the morning of 9 October 2019.

34. Mr Woods testified that he did not use the 7980 phone on 8 October 2019.  Mr Woods testified that Ms Agius was the user of the 7980 telephone service.  He testified that he did not commit the robbery at the V Hotel.  Mr Woods confirmed that he knew Mr Rankine, who was related to Ms Agius.  He testified that, after Mr Rankine confronted him over the allegations made by Ms Agius, they did not get on.  However, he agreed that he was on friendly terms with Mr Lindsay.

35. Mr Woods gave evidence that as of September 2019 he had been in a relationship with Ms Agius for about 15 months.  In September 2019 their son was about two months old.  Mr Woods testified he had been living at Yongala Street with Ms Agius until the Department for Child Protection asked him to leave when Ms Agius made certain allegations against him.  On 15 September 2019 Mr Woods moved out of Yongala Street and into a house at Ingle Farm with his sister-in-law.  On that date he was pulled over in Wingfield for a routine traffic stop whilst driving a black Mitsubishi VRX towing a trailer loaded with furniture.  He gave the police the Yongala Street address because he considered that his absence was a temporary one, until he could satisfy the Department for Child Protection that he did not pose a risk to his son’s welfare. 

36. Mr Woods testified that he met Mr Morrison soon after coming to South Australia from Western Australia.  They were good friends in October 2019. 

37. At about 5:00 am on 30 September 2019, Mr Woods was stopped by police in Largs North while driving the Hyundai.  Ms Agius was with him.  Mr Woods advised police that his address was 29 Yongala Street.  Mr Woods testified that on that day Ms Agius had picked him up from Ingle Farm.  He could not remember any other occasion on which he had been in the Hyundai prior to 9 October 2019 when leaving the Highlander Hotel. 

38. Mr Woods gave evidence that on 8 October 2019 at about 5:00 pm, Mr Morrison phoned him and asked him to go around to Barli Crescent.  He arrived there in his Mini Cooper.  Mr Morrison had been released from the Port Adelaide cells earlier that day.  Ms Borsi‑Watson and Mr Morrison were both there, as was a relative of Ms Borsi‑Watson.  Mr Morrison and Ms Borsi-Watson drove off in his Mini Cooper to source some cannabis.  They returned with some burgers.  Mr Woods stayed with them until about 10:00 pm.

39. As he was driving home he noticed a problem with the gear stick of his car.  A small washer which he had put in place to enable the gear stick to change gears had fallen off.  He returned to Barli Crescent and asked Mr Morrison to find the washer.  He could not, but they used a small piece of garden hose to fix the problem.  Mr Woods returned to Ingle Farm driving slowly so that the gears did not slip.  He then tried to arrange a more permanent fix of the gears before showering and going to sleep.

40. At about 6:00 am there was a knock on his door.  It was Mr Morrison and his brother, Jordie.  They had arrived in a silver Hyundai.  Mr Woods testified that Mr Morrison and Jordie appeared restless.  Mr Woods thought that they had probably taken methylamphetamine.  Mr Morrison apologised for losing the washer.  Mr Morrison asked Mr Woods to go with them in the silver Hyundai.  He agreed.  Mr Morrison drove and Mr Woods sat in the back seat.  He recognised the car as the Hyundai hire car in which he had driven with Ms Agius.  Jordie told him not to ask who the car belonged to.  Mr Woods saw some items behind the driver’s seat, including a black box and a number of things stacked on it.  They moved around as the car was moving.  He denied seeing the cash box (Exhibit P5).  He was told by Mr Morrison and Jordie that they needed to throw those items out.  Mr Woods testified that he asked what the items were.  Jordie again scolded him not to ask questions.  Mr Morrison was still driving.  The car pulled over and he threw out the boxes although he was unhappy about being asked to do so.  He claimed that he otherwise had nothing to do with the items and was only in the Hyundai because he wanted help to fix his own car.

1. Mr Woods testified that he was then taken to an ATM where he withdrew some money before returning to Barli Crescent.  Mr Morrison told him that he would help fix the gear stick on the Mini Cooper later.  Mr Woods and Mr Lindsay drove Mr Morrison and Ms Borsi-Watson to a post office. 

2. Mr Woods and Mr Lindsay then went to the Highlander Hotel.  Mr Woods testified that he tagged along because he was hoping for help to fix his car.  Mr Woods agreed that the CCTV footage taken from the Highlander Hotel on 9 October 2019 showed him there with Mr Morrison, Ms Borsi‑Watson and Mr Lindsay.  He lost $20 on the poker machines.  He kept on going out to the car to see what else was in there. 

3. Mr Woods explained that he took the driver’s seat of the Hyundai when they left the Highlander Hotel because he wanted to return it to Ms Agius who had hired it.  He drove the Hyundai to Barli Crescent.  There Mr Woods interrogated Jordie about where the Hyundai had been.  Mr Woods gave evidence that Samantha and Charlie Jackson left with the Hyundai giving him a lift to his home in Ingle Farm.

4. On 11 October 2019 Mr Woods went to a spare parts retailer to find a part to repair his Mini Cooper with another man, Kym Lebos.  When they returned to his home at Ingle Farm they were arrested on unrelated matters. 

5. Mr Woods was arrested for the V Hotel robbery on 7 January 2020.  When arrested he gave the Yongala Street address. 

   The application for the undercover operation

6. On the morning of 9 October 2019, police ascertained that Ms Agius had hired the silver Hyundai used in the robbery on 27 September 2019 and that it had been reported stolen on 4 October 2019.  It can be inferred that police were at the time working on the hypothesis that it was the Hyundai hired by Ms Agius which was shown on the V Hotel CCTV.  Police seized and photographed the Hyundai on 10 October 2019.

7. On 9 October 2019 police searched a residence in Nailsworth frequented by Mr Lindsay, under the authority of a general search warrant and seized items of clothing.  A trafficable quantity of a controlled substance and $2,770 in cash were found.  Mr Lindsay was arrested for the V Hotel robbery after his fingerprints were found on the cash box on 14 October 2019.

8. On 22 October 2019 Detective Brevet Sergeant Curtis obtained a statement from the airport manager of AVIS about the placement of AVIS stickers on their rental vehicles.  It is clear that police obtained that statement for the purpose of proving a connection between the Hyundai displaying stickers shown on the V Hotel CCTV and the Hyundai hired by Ms Agius.

9. Mr Rankine was arrested at the Highway Hotel on the night of Saturday, 26 October 2019 on two breach of bail offences, two offences of possessing a controlled drug and one offence of possessing a prescription drug without a prescription.  He was taken to the Adelaide police cells where he was denied police bail, as is commonly the case for persons arrested on breach of bail offences.  He refused to answer questions about those offences.

10. On Sunday, 27 October 2019 whilst Mr Rankine remained in custody in the police cells, an application to authorise an undercover operation pursuant to the Covert Operations Act was made by the police investigating the V Hotel robbery.  It will be recalled that at that time all three of the persons who were ultimately charged with the V Hotel robbery were in custody; Mr Lindsay following his arrest for that robbery and Mr Rankine and Mr Woods on unrelated matters.

11. Detective Sergeant Batzavalis was at that time a ‘controller’ within the Covert Investigation Section of SAPOL.  Detective Batzavalis gave evidence that a controller oversees the deployment of undercover operatives including the preparation of documents, which are provided to the Covert Operation Approval Committee (COAC) for approval.  COAC also leads planning strategies.

12. Detective Batzavalis gave evidence that at 9:30 am on 27 October 2019, his manager informed him that Mr Rankine was a person of interest in the investigation of a series of robberies unrelated to the offence on which he was in custody.  The information was provided to the Covert Investigation Section by Detective Supreintendent Steve Taylor of SAPOL’s Serious Crime Task Force, (SCTF) a division of SAPOL’s Serious and Organised Crime Branch.  Detective Batzavalis exchanged emails with Detective Taylor in which Detective Taylor conveyed the view that an undercover operation was a ‘plausible option’ for their investigation. 

13. Given the nature of the proposed undercover operation and the stage which the investigation had reached, it is clear that the undercover operation was seen as a ‘plausible option’ for procuring evidence of admissions which Mr Rankine might be prompted to make.  To put it in another way the detectives of the SCTF chose the proposed undercover operation over an interview in which detectives disclosed that they were police officers investigating Mr Rankine’s involvement in armed robbery offences.  In light of Mr Rankine’s dismissive response to the attempt to interrogate him on his arrest a week later the choice of the undercover operation as the ‘plausible option’ was particularly prescient.

14. Detective Batzavalis was placed in contact with Detective Senior Sergeant Tracey Murphy who provided information to assist in the urgent preparation of the undercover application.  At the time Detective Chief Inspector Gray was Detective Murphy’s manager.  I interpolate here that in the ordinary course Mr Rankine would have been brought before a court or would, at the very least, have been entitled to a bail review by a magistrate, by no later than Monday, 28 October 2019.  It can be inferred that the urgency of the application was related to the prospect that Mr Rankine might be granted court bail or, if not, remanded to a correctional institution on that Monday. 

15. Detective Batzavalis prepared an application for the approval of an undercover operation targeting Mr Rankine for the purpose of gathering evidence of his involvement in the commission of a series of aggravated robberies of hotel gaming rooms.  The application records that Detective Batzavalis suspected on reasonable grounds ‘that persons have engaged, are engaging, or are about to engage in serious criminal behaviour’.  He relied on the information conveyed to him that the Serious and Organised Crime Branch was investigating a series of aggravated robberies targeting gaming rooms. 

16. An attachment to the approval application shows that the robbery of the V Hotel was one of a series of 10 robberies under investigation.  A short summary of each offence is included.  The summary of one of those robberies mentions that one of the offenders was armed with a machete.  In respect of the V Hotel, the summary records that Mr Lindsay had been arrested for that offence.  It will be remembered that the investigating officers knew that Mr Lindsay’s fingerprints were on a cash box taken in the V Hotel robbery by the time of the undercover application.  The information about the V Hotel robbery included in the application was that it was committed by three males, two of whom were armed with firearms, and the other with a tyre iron, and that close to $13,000 in cash was stolen.

17. Attached to the application is a copy of a briefing paper authored by Detective Gray and provided to Detective Taylor on the robberies.  Most of it is redacted.  However, a photograph of Mr Rankine is included in the briefing paper.  It can be concluded that Mr Rankine was therefore, by that time, suspected of complicity in the robberies. 

18. Also attached to the application is an email forwarded by Detective Taylor to Detective Batzavalis.  The forwarded email was sent to Detective Gray and Detective Taylor by a person whose name does not appear on the email provided to the court.  It commences ‘I provide the following overview of today’s arrests x 2’.  It states that ‘there is significant intelligence that Mr Rankine is drug dependant, committing robberies, organising others to commit gaming room robberies, and is the primary POI for the V Hotel at Virginia Gaming Room robbery’.  The email records that on 25 October 2019 SCTF members identified that Mr Rankine was breaching the residence condition of his bail.  It continues that on 26 October 2019 ‘SCTF investigators maintained covert observations’ on places to which Mr Rankine was suspected to have resorted.  The email informs Detective Gray that Mr Rankine was arrested at the Highway Inn Hotel.  The email states that on his arrest Mr Rankine was found holding the keys to a Toyota Avalon which was nearby.  In the Toyota Avalon was a bag of clothing which was suspected of having been used in the V Hotel robbery. 

19. The information available to the police officer who sent the email to Detective Gray appears in the declaration of Detective Brevet Sergeant Shepherdson which was received on the voir dire as VDD 20.  The declaration records that he searched the Toyota Avalon at 11:38 am on Sunday, 27 October 2019.  In addition to the bag of clothing he found a black hooded jumper and a tyre iron.  As I earlier recounted, the victims of the robbery gave statements to the effect, and still photos taken from the V Hotel CCTV of the robbery show, that one of the offenders was carrying a tyre wrench or iron and wearing dark clothing.  Information to that effect must have been known to Detective Taylor in order for him to form the suspicion that the Toyota Avalon was used in the V Hotel robbery because the Avalon itself was not seen at the V Hotel.  It follows therefore that Detective Taylor’s suspicion that the Avalon was connected to the robbery of the V Hotel was based on the discovery of the items in it which matched items carried or worn by one of the V Hotel robbers.  It follows also that the suspicion that the Toyota Avalon was involved in the robbery was inextricably linked to a suspicion that Mr Rankine was connected to the V Hotel robbery.

20. In the same email it is mentioned that messages on Mr Rankine’s phones referred to vehicles which had possibly been stolen and expresses the opinion that the apprehension of Mr Rankine has likely prevented the commission of other gaming room robberies.  The description of Mr Rankine as the ‘primary POI’ was therefore perhaps a little understated. 

21. It is plain then that the police investigating the V Hotel robbery strongly suspected on reasonable grounds that Mr Rankine was one of the robbers of that hotel.  It does not detract from that conclusion that evidence was not led at the trial that the tyre iron and clothing were found in the Toyota Avalon.  Prosecutorial decisions of that kind might be made for a range of reasons which do not affect the strength or reasonableness of the police suspicion at the time.

22. Moreover, it is significant that Mr Rankine was not arrested by reason of a chance discovery that he was breaching the residential condition of his bail.  The arrest was planned by detectives from SCTF.  It is not their function to police mere breaches of bail.  It can be inferred that the deployment of the SCTF to arrest Mr Rankine for breach of his bail was secondary to their interest in Mr Rankine as the primary person of interest in the V Hotel, and other, robberies.  That interest is likely to have been spiked by the intelligence reports to which I refer in the next paragraph.

23. The application for the undercover operation refers to additional information from intelligence sources.  One source reported that Mr Rankine was ‘cashed up’ from doing hotel robberies.  Information from yet another intelligence source stated that William Lindsay, Zac Woods and Trevor  Rankine did the ‘stick up’ at the V Hotel.  At the time of the application the investigating detectives must have appreciated that the reliability of that source was strengthened by the discovery of Mr Lindsay’s fingerprints on the cash box.  Finally, another intelligence report referred to a robbery of the Mawson Hotel in which Mr Rankine had some involvement.[1]  A SAPOL summary occurrence report, listed Ms Agius, the hirer of the Hyundai, and Mr Rankine as persons involved in that robbery which was thought to have been committed by Mr Morrison.  The police therefore knew, at least, of that possible connection between Ms Agius, who had hired the Hyundai used in the V Hotel robbery, and Mr Rankine at the time they made the undercover application.  In assessing the grounds for suspicion afforded by that intelligence report it will be recalled that the premise of the undercover application was that the gaming room robberies were a series, which implies an identity, or other close relationship, between the offenders. 

    [1]     Received as VDP16.

24. It is, of course, commonplace for police to rely on intelligence reports for the purposes of exercising powers which are conditioned on the existence of a reasonable suspicion.  The information obtained from the intelligence sources can be taken into account, together with the other evidence of Mr Rankine’s involvement of which the investigating officers were aware, in determining whether the police investigation had reached the point at which a caution should have been administered.

25. The second page of the application prepared by Detective Batzavalis for the COAC records that the investigating officers requested the assistance of an undercover operation to assist ‘in gaining evidence to assist with the brief of evidence’.  That note is significant.  A brief of evidence may refer to the material provided to the prosecution section of SAPOL, or the DPP, for adjudication on the laying of charges.  It may also refer to the evidence the prosecution proposes to adduce at trial.  In an email of 25 November 2019 sent to the investigating officer responsible for the V Hotel robbery, Detective Batzavalis suggested that she consider engaging an expert to enhance the covert recordings made of the conversations with Mr Rankine in the police cells for ‘her brief of evidence’.  When Detective Batzavalis testified on the voir dire he gave evidence that he ordinarily included transcripts of conversations in the ‘briefs of evidence’ he prepares.  It follows that Detective Batzavalis, who was the author of the application, uses the term brief of evidence to mean the collation of the evidence which would be available to the prosecutor to tender at trial.  On either meaning, the anticipation by the detectives of the preparation of a brief of evidence shows that they had moved beyond an investigation of who might have committed the V Hotel robbery.  They were collecting evidence with a view to charging a particular person, namely Mr Rankine.  Moreover, it is significant that Mr Lindsay had already been charged.  In the ordinary course it is desirable that all co-offenders be tried jointly and the investigating officers can be expected to have been working towards that end.

26. On 29 October 2019 Detective Brevet Sergeant Kilsby supplied Dr Sorell a disc containing footage from the V Hotel CCTV and another containing a still photograph of Mr Rankine taken on 26 October 2019 when he was arrested for the breach of bail offences.  The advantage of using the arrest photo was of course, that it showed Mr Rankine’s appearance within weeks of the robbery.  On the same day, Detective Curtis became aware that Dr Sorell had conducted a comparison between the physical features of Mr Rankine and the male offender depicted in the CCTV footage.  The evidence does not show whether the request of Dr Sorell to compare Mr Rankine’s arrest photo with the CCTV footage had been planned before the undercover operation, for example because the investigating detectives had already themselves observed similarities between the offender carrying the tyre iron and Mr Rankine, or whether it was decided to take that step only after the undercover operation had concluded.  In either case, it suggests that there was by that time considerable momentum in the marshalling of evidence against Mr Rankine.

27. Detective Batzavalis’ application sought approval for undercover operatives U65 (Hamilton) and U70 (Anderson) to engage Mr Rankine in conversation under the cover of being persons held in custody at the Adelaide City Watch House Cells.  The notes at the end of the application show that it was intended that Anderson and Hamilton would operate within the cells area of the Adelaide City Watch House. 

28. On the application, Detective Batzavalis records his satisfaction that the operation was properly designed to give Mr Rankine an ‘opportunity to provide other evidence’ of his involvement in aggravated robberies. As we shall see, that phrase echoes s 4 of the Covert Operations Act.

29. Approval for the undercover operation was given by Detective Superintendent Jeffrey at 5:48pm on 27 October 2019. He gave that approval by signing the application prepared by Detective Batzavalis at a meeting of the COAC which he chaired. The conduct authorised was engaging Mr Rankine in conversation regarding the series of armed robberies and other related actions or offences. No direction was given or condition imposed requiring compliance with s 74D of the SO Act. It is significant for the purposes of considering the power to admit the evidence of the admissions made in the cells, notwithstanding non‑compliance with s 74D of the SO Act, that the approval was given by a high‑ranking member of SAPOL at a meeting of the committee charged with oversight of undercover operations.

    The undercover stratagem

30. At 6:42 pm Detective Batzavalis conducted briefings with Hamilton and Anderson.  Hamilton and Anderson read the approval documentation in its entirety and then signed it.  On the voir dire Detective Batzavalis testified that he discussed tactics with Hamilton and Anderson, including conversation management, the right to silence and the desirability of open-ended conversations. 

31. Detective Batzavalis testified that he gave Anderson and Hamilton permission to ask questions about the robberies:

    So, with respect to the right to silence, I was aware that the accused had not been arrested and/or interviewed in relation to the aggravated robberies, or any robberies for that matter.  It was unrelated, an unrelated charge.  And that, if an opportunity presented with respect to questions, or any voluntary admissions, that they were allowed permission to ask questions.  However, given the volume of offences that had occurred during that period, the initial part of my objectives was to maintain open-ended questions, not being specific to any offences, and just to go in and have a conversation.

32. As can be seen, Detective Batzavalis did not address Mr Rankine’s right to silence at all.  He did no more than tell Hamilton and Anderson that they were authorised to question Mr Rankine about any of the armed robberies, even though he knew that Mr Rankine was suspected on reasonable grounds of having committed them.  The direction to ask questions which were not specific to any particular one of the robberies appears to have been tactical, in that it optimised the information which might be obtained.  It cannot affect the forensic unfairness of adducing evidence of an admission on the trial of a person reasonably suspected of committing an offence that he was asked questions about other offences in addition to the one with which he was ultimately charged.  If Mr Rankine had been formally interviewed on 27 October 2019 without a caution the forensic unfairness would not be ameliorated by asking questions about robberies generally and not the V Hotel in particular. 

33. Detective Batzavalis was asked if he would have taken a different approach if Mr Rankine had been formally interviewed about the robberies before the application was made.  He answered:

    Yes, correct.  So I guess, probably something I could have mentioned earlier, generally during the feasibility process one of the questions is commonly asked and I wasn’t aware – sorry I take that back, one of the questions that is normally asked is if the offender has been interviewed for this offence, and if they have been interviewed and refused to answer questions, that really impacts on our strategy within deployment.  Whereas, in a sense, if the accused had answered questions regarding the offence that we’re investigating, then we could.  However, if they chose to exercise their right to silence, then we can’t push the boundaries at all.  We respect that.

    That answer is not easy to understand but I take Detective Batzavalis to mean that an undercover operation might still be conducted even after a suspect has refused to answer questions but that the operation would not ‘push’ some unarticulated boundaries which he had in mind.

1. Detective Batzavalis elaborated on what he meant by the right to silence in cross-examination:

   I discussed the matter of right to silence, not necessarily relating to Mr Rankine exercised his right to silence.  So that was, basically, saying to them that Mr Rankine had been arrested for another offence, an unrelated offence; that he hadn’t been interviewed in relation to this offence or ask questions under caution and that if the opportunity arose, that if they could, asked questions relating to any offences.  But, in my view, the fairness to your client was I allowed them to go in with open-ended questions for that first part to ascertain and see if there were likely to be any voluntary admissions to be made.

2. Accepting Detective Batzavalis’ evidence that he suggested that Hamilton and Anderson ask open-ended questions in fairness to Mr Rankine, I observe that leading questions might also have excited some suspicion on Mr Rankine’s part.  Detective Batzavalis agreed that he might have known that Mr Rankine had refused to answer questions in respect of the bail offences.  Detective Batzavalis explained:

   Yeah, and they would have been told, again just reiterating, that he had been arrested for an unrelated matter.  He exercised his right to silence and, however, with respect to the robberies, there are grounds where they could ask questions, if they did present, and in fairness to Mr Rankine, I requested to them to go open-ended type questions with a view to seeing what Mr Rankine was prepared to voluntarily say.

3. Detective Batzavalis agreed that he had a suspicion that Mr Rankine had committed the robbery of the V Hotel but did not see a need to caution Mr Rankine because the proposal was merely to allow Mr Rankine an opportunity to voluntarily make admissions to any of the robberies and not just the V Hotel robbery. 

4. Detective Batzavalis’ answers on the right to silence confuse several different concepts.  I acknowledge that Detective Batzavalis is not legally trained and the question of what is, or is not, forensically fair is not to be determined by his subjective state of mind.  However, because mistakes by senior police officers on how to conduct police operations may lead to the exclusion of important evidence, which could properly have been obtained, it is as well that some of that confusion be dispelled.  No question of voluntariness, in its legal sense or its ordinary meaning, arises in operations like the one approved here.  The issue raised by failing to give a caution at an appropriate time is the possible forensic unfairness by reason of a denial of the common law procedural protections against self‑incrimination. 

5. A police strategy calculated to engage a person reasonably suspected of committing an offence in conversation with a view to elicit admissions without giving a caution may undermine the important procedural protection afforded by the common law, that an accused is not bound to give his or her account of the allegations in evidence in his or her trial, even if only open-ended questions are asked.  That procedural protection may be undermined if the prosecution adduce evidence of the answers given by a person, who is reasonably suspected of committing an offence, to questions asked in order to elicit admissions, without first giving the usual caution.  The rule applies whether the police identify themselves as such or whether they are pretending to be fellow prisoners, albeit the giving of a caution is likely to render the latter strategy impractical.  Strategically eliciting a suspected person’s account for use against him or her in the trial in which he or she would otherwise have the benefit of the right to silence undermines that fundamental procedural protection. 

6. Moreover, Detective Batzavalis’ simplistic approach lends itself to the abuse exemplified by the very circumstances of the undercover operation authorised against Mr Rankine.  The SCTF detectives investigating the series of gaming room robberies had identified Mr Rankine as the ‘primary POI’ for the V Hotel robbery.  On the specific intelligence information gathered by them there were reasonable grounds on which to suspect that Mr Rankine was complicit in the V Hotel robbery.  The detectives of the SCTF reasonably suspected that the items in Mr Rankine’s Toyota Avalon had been used to commit the V Hotel robbery.  At the very least, the robber carrying the tyre iron bore a resemblance to Mr Rankine.  They had confirmatory intelligence reports and knew of circumstantial evidence linking Mr Rankine with another offender, Mr Lindsay, and with the hirer of the Hyundai used in the robbery.  Had the SCTF detectives formally interviewed Mr Rankine about the V Hotel robbery when he was in the Adelaide police cells without first cautioning him, any inculpatory statement made by him would almost certainly have been excluded.  However, they chose instead to pursue an undercover operation so that he might be engaged in conversation by undercover operatives knowing that COAC might not approve an undercover operation to procure unguarded admissions if the suspect had refused to answer questions in a formal interview.  At the very least it is apparent from Detective Batzavalis’ evidence that COAC would be more circumspect about what they approved.  By declining to interview Mr Rankine the SCTF detectives avoided giving Mr Rankine an opportunity, he is likely to have taken, to refuse to answer questions about the robbery.

7. Detective Batzavalis testified that compliance with s 74D was not attempted because in his opinion s 74D was not ‘relevant to the deployment’ of Hamilton and Anderson. Detective Batzavalis testified that opinion was a common and longstanding one within the Covert Investigation Section. Detective Batzavalis claimed that he believed that case law supported his opinion but did not refer to any particular cases. Nor was Detective Batzavalis aware of any legal opinion to that effect obtained by SAPOL. No opinion from a Crown law officer which supported the position taken by the Covert Investigation Section was put before the Judge. The interaction between s 74D of the SO Act and the Covert Operations Act is discussed below but, as I foreshadowed at the outset, the latter does not expressly, or by implication, abrogate or limit the scope of the former.

8. Detective Batzavalis testified that he requested the City Watch House staff to place Hamilton, Anderson and Mr Rankine together in the exercise yard where it had been planned that Hamilton and Anderson would engage Mr Rankine in conversation.  Detective Batzavalis then controlled the movement of Hamilton and Anderson in and out of the cell complex. 

9. The common area of the cell complex was kept under CCTV visual surveillance but the CCTV system did not record sound.  Detective Batzavalis planned to record the conversation on the devices fitted to Anderson and Hamilton.  From his vantage point Detective Batzavalis could not hear the conversations with Mr Rankine in the common area.

10. Hamilton and Anderson were placed in cells adjoining or close to Mr Rankine’s cell.  At 7:34pm Watch House staff placed Mr Rankine, Hamilton and Anderson in the common area outside of the cells for dinner.

11. Anderson was removed from the cells between 8:31 pm and 8:43 pm.  Detective Batzavalis testified that Anderson was removed from the cells to brief, and to receive tactical advice from, Detective Batzavalis.  Detective Batzavalis testified that opportunity helped him to plan the final debrief of Hamilton and Anderson and allowed him to provide real time information to the SCTF detectives. 

12. Anderson informed Detective Batzavalis that Mr Rankine had spoken about his drug taking and had admitted committing robberies but had not confessed to any particular one of them.  Anderson’s fuller account of this conversation with Mr Rankine before he was removed appears in [139] below.  Detective Batzavalis suggested that Anderson talk to Mr Rankine about his motives for committing the robberies and how much money was taken from particular robberies.  The suggested tactic was plainly calculated to elicit an admission to a particular robbery which would be admissible on the trial of a charge of that robbery, whereas evidence of a general propensity to which, according to Hamilton and Anderson, Mr Rankine had already admitted, might not be.  Detective Batzavalis’ object was not to identify other suspects for the series of offences which the SCTF detectives were investigating.  Detective Batzavalis’ suggestion discloses a strategy to procure evidence, out of Mr Rankine’s own mouth, to use against him on his trial. 

13. In his evidence Hamilton testified that he accepted, and had no reason to doubt, that the detectives of the SCTF suspected Mr Rankine of committing the V Hotel robbery but said that he, himself, did not suspect Mr Rankine.  Of course, the procedural consequences of undermining the right to silence cannot be avoided by engaging agents who do not have the same understanding of the case against suspects as the investigating officers at whose request the undercover operation is conducted.

14. Hamilton accepted that he and Anderson discussed questioning techniques with Detective Batzavalis with the object of prompting Mr Rankine to talk about the robberies.  Hamilton accepted that he and Anderson then encouraged Mr Rankine to talk about his offending.  He agreed that the operation was designed entirely to have Mr Rankine admit to robberies he may have committed whether or not they were the robberies listed on the application for approval of the undercover operation.  Hamilton was asked how he went about getting someone to talk about his or her criminal behaviour but refused to provide details claiming public interest immunity over his questioning techniques.  He agreed that it was important to guard against false boasting when seeking admissions.  Hamilton was asked:

    Q.So getting detail about any robbery, that was a tactic that you discussed beforehand. 

    A.Of course, if he’s going to talk about a robbery then we’d want him to talk about the robbery.

    Q.So that was a tactic to try and make sure the confession was reliable.

    A.No, not really, we just – encouraging him to talk.

15. However, Hamilton later accepted that ‘once they start speaking about it you want them to provide as much detail as possible so it can get corroborated down the line’.  That tactic, again, shows that the purpose of the questioning was not only to have Mr Rankine make admissions to adduce against him at his trial but to elicit detail from him which disclosed an esoteric knowledge of the offence and which would ‘corroborate’ and enhance the probative value of his own self‑incriminatory account. 

16. Even though Hamilton agreed that in his briefing with Detective Batzavalis and Anderson it was emphasised that they should obtain as much detail as they could about any robbery to which Mr Rankine admitted, Hamilton denied that he was conducting an interview or an interrogation.  When asked by the Judge to explain his understanding of an interview, Hamilton responded:

    My understanding was we were just going in there to ask, you know, gain rapport with Mr Rankine, not ask him direct questions about the particular robberies, just to have an open conversation with him and see if he – see if it manifested his behaviour with our conversations.

    Hamilton’s strained use of language – ‘see if it manifested his behaviour with our conversations’, like Detective Batzavalis’ phrase ‘opportunity to provide evidence’ echoes s 4(2)(d) of the Covert Operations Act. However, the only difference between Hamilton’s concepts of an interview or interrogation on the one hand and an open conversation on the other is tactical. An interrogation generally, but not always, proceeds by police officers exercising their actual and apparent authority to confront a suspect with incriminatory evidence. I will refer to an interview of that kind as a formal interview. An undercover operation uses deception to gain trust. I will refer to the questioning of a suspect about his or her offending by persons who are not police officers, or are pretending not to be police officers, as an informal interview. The end point and purpose of both is the same; obtaining a self-incriminatory account of the offences which the investigator reasonably suspects the subject has committed.

17. Much of the conversation with Mr Rankine could not be transcribed because of the paucity of the recording.  However, there is an audible question which serves as an example of Hamilton’s approach.  It is question 698, in the transcript taken from Hamilton’s recording device, when he asked Mr Rankine ‘what’s your biggest one’.  Hamilton testified that he was there attempting to extract more particular information about Mr Rankine’s admitted tendency to commit robberies.

18. In the course of cross-examination about whether direct questions or leading questions were used, Anderson said:

    I meant direct questions with having a conversation and you saying something about a robbery, Mr Graham, and I asking you directly about that robbery, and that wasn’t the case at all.  When you build rapport – and I’m not going to go into the specifics of how undercover operatives go about their business because that would be subject to PII, but I am just trying to give you an indication that we were having the conversation, and it was massaged and not directly pointed questions.

19. It is to be noted that Anderson, like Hamilton, declined on the grounds of public interest immunity to give a full account of how he questioned Mr Rankine.  Mr Rankine’s answers to their questions were given before the jury in narrative form, even though the questions asked may have given the answers a different colour or thrown light on the credibility or reliability of Hamilton’s and Anderson’s account of what Mr Rankine said.  Moreover, if the recording had not failed the actual questions asked would have been heard by the accused, their counsel and any member of the public who was interested to understand the techniques employed.  It is difficult therefore to understand how public interest immunity could be claimed.  The questions were not pressed but the claim to public interest immunity was plainly untenable. 

20. Be that as it may, the contrast drawn by Anderson between a ‘massaged’ conversation and ‘directly pointed questions’ shows that the only difference between a formal, and an informal, interview lies in the degree of subtlety of the interrogation technique. 

21. Anderson agreed that he asked Mr Rankine whether he had got anything out of the V Hotel robbery.  In the questioning which followed, Anderson abandoned the distinction between direct and massaged questions relying instead, in a way which is not clear, on the pretence on which he was engaged.

    Q.Isn’t ‘Did you get anything out of the robbery?’ a direct question as to the detail of the robbery.

    A.Yes.

    Q.So you did ask some direct questions.

    A.Yes, but it was in general conversation as part of my persona as an undercover operative.

22. Anderson also agreed that he asked a question to try to establish whether the getaway car used in the robbery was stolen or not.  He agreed that the purpose of that question, and questions like it, was to elicit details about the V Hotel robbery.  It was put to him that his questions were no different to the questions that might be asked of someone who had confessed to a robbery in a formal interview.  Anderson accepted that there was no difference in the lines of questioning.  He agreed that he asked Mr Rankine questions about a wide range of matters but could not remember the form of those questions.  He agreed that the conversation about the V Hotel robbery was not a monologue on Mr Rankine’s part.

23. On an objective evaluation of the questioning of Mr Rankine, its purpose, and its planning, the distinction sought to be drawn by Detective Batzavalis and the undercover operatives between formal and informal police interviews is illusory.  The undercover operation was planned to elicit admissions and the incriminating statements made by Mr Rankine were in fact elicited by Hamilton and Anderson.

    The failed recordings

24. Within two weeks of 27 October 2019, both Hamilton and Anderson knew that the recordings of the conversation were of poor quality and later so informed Detective Batzavalis.  On 25 November 2019 Detective Batzavalis sent an email to Detective Brevet Sergeant Leray discussing the engagement of Dr Sorell to enhance the tapes because the recording quality ‘isn’t the best’.  However, neither the fact of, nor the paucity of, the recordings was disclosed to Mr Rankine or his legal practitioners at that time.

25. On 24 January 2020 Hamilton and Anderson swore the affidavits to which I refer below summarising the admissions allegedly made by Mr Rankine.  The affidavits were only disclosed to Mr Rankine’s counsel on 27 February 2020.  It was then that Mr Rankine learnt for the first time the substance of the alleged admissions but he remained unaware that an audio recording of the conversation was made but that the alleged admissions were inaudible.

26. The transcripts, such as they were, of the recording made by Hamilton and Anderson were provided on 8 June 2020.  It was only then that Mr Rankine became fully aware of the forensic position in which he found himself in respect of the alleged admissions.

27. The audio recordings, or copies of them, were never provided to Mr Rankine or his counsel.  Mr Rankine sought production of the audio recordings by subpoena.  The Commissioner of Police opposed production.  The Judge before whom the application first came, and later the trial Judge, dismissed the application.  I return to that below.

28. I set out below a summary which correlates the limited segments of the conversation which are audible with notes made by Hamilton and Anderson in the hours after the conversation was concluded and their testimony about the conversation.

29. Hamilton went into his cell at 7:12 pm, about 15 minutes after Anderson.  Hamilton said that he went into cell 232 and Anderson went into cell 229.  Mr Rankine was held in cell 231.  Hamilton’s audio recording device was activated when he was first placed in the cell.  It remained activated throughout the time he was there. 

30. Hamilton testified that he was allowed into the common yard when the doors were unlocked at 7:34 pm, about 20 minutes after he was placed in the cell.  Anderson and Mr Rankine were released at about the same time.  All three sat around a communal table.  Hamilton sat next to Mr Rankine and Anderson sat opposite him.  Anderson and Hamilton engaged in general conversation playing ‘the role of a criminal in the cells’.

31. Hamilton told Mr Rankine he had been charged with cultivation.  He asked Mr Rankine if he had any advice for him.  Mr Rankine told Hamilton he had been arrested for cultivating cannabis in the past and advised Hamilton ‘don’t talk to no one, don’t say nothing’.  That Mr Rankine would give that advice to another ‘prisoner’ strongly supports the inference that he himself would have followed his own advice if formally interviewed by detectives of the SCTF about the V Hotel robbery. 

32. Hamilton testified that Anderson was then removed for about 15 minutes about halfway through their time with Mr Rankine.  Notes made at the time record that Anderson was removed at 8:28 pm.  It will be remembered that Anderson told Detective Batzavalis that Mr Rankine had admitted to committing some unspecified robberies before he was removed.  It follows that relatively little is known of the conversation in which they engaged over the period of just under an hour for which they were together before Anderson was removed.

33. From the transcript of the recording, it appears that whilst Anderson was away, Hamilton engaged in conversation with Mr Rankine much of which was also inaudible.  Mr Rankine referred to a Toyota in the course of that conversation and that his clothes and ‘shit’ were in the boot.  Hamilton then wondered whether he had been followed or whether a neighbour had called the police.  There was more discussion of Hamilton’s feigned predicament before Hamilton asked Mr Rankine about his lawyer.  Hamilton asked Mr Rankine whether he was winning when the police arrested him at the Highway Hotel.  Mr Rankine replied in the negative but his response is largely inaudible.  Hamilton said that he had never had a big win on the pokies. Mr Rankine’s response is again inaudible and Hamilton asked him to repeat it.  Much of that answer too is inaudible but the words ‘so I rob them’ were spoken.  Hamilton then asked Mr Rankine ‘What’s your biggest one?  They make fucken so much money anyway’.  Hamilton’s purpose in asking that question is plain enough, but the response, if any, is inaudible.

1. The trial Judge accepted that Mr Rankine was tricked into believing that he was speaking to fellow prisoners but did not find any unfairness in that respect because:

   [48]… However, that was occurring as a result of an approved undercover operation.  As Brennan J stated in Swaffield ‘the investigation of crime is not a game governed by a sportsman’s code of fair play.  Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity to ‘invest plausible falsehoods’’

   (Footnotes omitted)

2. It can be accepted that the deception in itself did not render the admission of the evidence unfair.  The admissibility of the evidence did not fall to be determined against a ‘sportsman’s code of fair play’.  The question of unfairness is focussed on ensuring that the procedural protections of a criminal trial are not outflanked by tactical police investigations.  In that respect the circumstance that there was an approved police undercover operation is of little weight if it was approved by senior police officers in circumstances which were calculated to subvert those protections.  The trial Judge’s reasons for concluding that the absence of a caution did not render it unfair to receive the admissions were:

   Caution

   [51]When arrested on 26 October 2019 for offences unrelated to any alleged robbery, Mr Rankine had declined to answer questions.  However, there is no suggestion he had declined to answer questions about the V Hotel robbery, nor any other robbery.

   [52]Mr Rankine submitted that once the first alleged admission was made to the V Hotel robbery, the officers should not have asked any further question. That is, from that point, any statement Mr Rankine made had to be entirely volunteered.  While Mr Rankine accepts that the undercover officers could not caution Mr Rankine at that, or any other point, he submits that once the first admission was made, they could not ‘elicit’ any further admission.  As I understand it, he submits that an admission is ‘elicited’ if a question is asked which is directed towards, or results in, some further admission being made.

   …

   [55]In this case, while police suspected Mr Rankine had committed more than one robbery, including the robbery of the V Hotel, and the undercover officers had no reason to doubt that belief, no evidence was given of the basis upon which police held that suspicion.  For example, there was no evidence any person had signed a statement implicating Mr Rankine, had agreed to do so, let alone that anything such a person might have said was admissible and they were prepared to give evidence.  U70 told me he had no information about the source of what was within VDP2 about Mr Rankine’s alleged conduct. I accept that evidence.  There is no evidence that Mr Rankine had been connected to the V Hotel, or the car used, by any forensic evidence.  At the time the alleged admissions commenced, I am not satisfied the undercover officers, nor any other police officer, had reasonable grounds to suspect Mr Rankine had committed the robbery of the V Hotel, nor any other specific robbery.  This is not to overlook that police suspected he was involved and that by the time of the alleged admissions Mr Rankine had made general admissions to a robbery, or robberies, but any such admissions lacked detail.

   [56]In addition, in my view, despite what U70 said in evidence about the line of questioning being, in his opinion, no different to a formal interview, at no point was this a ‘systematic interview’.  A ‘systematic interview’ is not an appropriate description of this conversation being as it was a conversation between a police officer pretending to be a person who had been arrested.  I am satisfied that throughout the relevant conversation, the undercover officers were simply ‘gathering information’ from a person suspected of having committed the specific offence being discussed, albeit by U70 asking some questions at times.

   …

   [58]While I am satisfied that on his return to the cells immediately before the alleged admissions were made, U70 is likely to have been the one to have returned to the topic of armed robberies and Mr Rankine’s conduct in that setting and that U70 then asked some further questions during the course of the alleged admissions and so was, in a sense, to use the words of King CJ, ‘actively seeking out information’ and in U70’s mind was ‘massaging’ the conversation and seeking to get detail in a ‘round‑about way’, I am not satisfied the exchange was ‘akin to an interrogation’. This is despite there being some uncertainty as to precisely what U70 said during the alleged admissions (likely due to the poor quality of the recording, the absence of detailed notes and the passage of time).  It is also despite U70 having agreed he was trying to ‘elicit’ information. While his agreement to that proposition is not irrelevant, whether what occurred was ‘elicitation’ is for me.

   (Footnotes omitted)

3. It is not obvious to me why much weight should be afforded to the matters mentioned in paragraph [51] that Mr Rankine had not declined to answer any questions about the V Hotel robbery or any other robbery.  He had not declined to answer those questions in a formal interview because one had not been conducted.  The fundamental issue to be addressed on the question of unfairness in this case was whether admissions made in the course of an undercover operation in which, necessarily, Mr Rankine was not cautioned compromised his privilege against self‑incrimination having regard to the stage the investigation had reached.  Moreover, it was obvious from the fact that he had declined to answer any questions about the relatively minor offences for which he had been arrested on 26 October 2019 that he was also very likely to have declined to answer any questions about the robbery if they were asked by a person known to be a police officer.

4. Even though Mr Rankine’s counsel appears to have submitted that the officers should not have asked any further questions after the first alleged admission, made before Anderson was removed from the cells, that submission did not properly frame the relevant question.  So too, the apparent concession that the undercover officers could not caution Mr Rankine because it would expose their true status, rather missed the point.  The relevant question was whether it would be unfair, in the sense of undermining Mr Rankine’s trial procedural protections, to admit the evidence on his trial.  It can be accepted that the police, in a practical sense, could not have cautioned Mr Rankine if they were to proceed with the undercover operation.  However, the question is whether the admissions allegedly made in the absence of a caution in the course of the undercover operation should be admitted given that the police strategy was to obtain an admission in that way.

5. Contrary to what is suggested in paragraph [55] there was a body of evidence before the Court about the facts and circumstances known to the investigating detectives at the time of the undercover operation.  Information need not be in immediately admissible form at the time of an interview or even when a suspect is charged.  I have set those facts and circumstances out in some detail in [70] to [87] above.  In particular, Mr Rankine had been connected to the Hyundai car used in the V Hotel robbery at least through his acquaintance with Ms Agius.  At the time of the undercover operation the police reasonably suspected his car, the Toyota Avalon, to be involved because the clothes and tyre iron found in it were suspected to be the clothes and tyre iron used in the commission of the offence.  Mr Rankine generally fitted the description of the offender holding the tyre iron given by the employees and  the robber carrying the tyre iron whose image was captured on CCTV bore some similarity to Mr Rankine.

6. A reasonable suspicion that Mr Rankine had committed the offences did not depend on the police having signed statements or physical evidence in admissible form to adduce at the trial should Mr Rankine be charged.  If a suspicion could only be reasonable if police held at the time they enter, signed statements or physical evidence in admissible form, many searches and other exercises of police powers, long accepted to be lawfully executed, would fail that test.  Moreover, it was not necessary for the undercover operatives to have direct knowledge of the information which was in the undercover application.  The undercover operatives were the agents of the police investigating the V Hotel and other robberies.  For the purposes of the unfairness discretion and whether adducing the admissions would outflank the protections of a common law criminal trial, it is the knowledge of the police as the investigating agency which is important. 

7. Turning to paragraph [56] of the Judge’s reasons, it must be accepted that the conversation with Mr Rankine was not a ‘systematic interview’ or what I have referred to as a formal interview.  The significance of a systematic interview in this context is that it proceeds by confronting an accused with evidence implicating him or her in an offence.  However, that is but one way in which police might attempt to elicit admissions, or at least a response, from a person reasonably suspected of committing an offence.  So much is clearly shown by the evidence given in this matter of the questioning strategies formulated by undercover police officers. 

8. Once it is accepted, as it must be, that Anderson was actively seeking out information which would incriminate Mr Rankine, of the V Hotel, and other robberies, the distinction between the conversation in which he was engaged and a formal or systematic interview is one of form and tactics only.  The distinction, such as it is, is of little weight in the circumstances of this case.  First, even though Hamilton and Anderson used open‑ended questions and were informal, as one would expect of police officers pretending to be prisoners, their conversations were planned to extract admissions.  The strategy to that end was planned with Detective Batzavalis.  Secondly, even though an interview which is not systematic may sometimes indicate that police are still in the investigative stage of their investigations, the police had clearly moved beyond that stage in this case precisely because of the strength of the suspicion and the acknowledgment, in the application, that the undercover operation was intended to procure evidence for inclusion in the brief against Mr Rankine. 

9. Finally, I note that the Judge did not address the considerations identified in Pavitt.

10. I set out the findings I would make about the circumstances in which the alleged admissions were made before weighing the relevant considerations affecting the forensic unfairness of receiving the admissions.

11. First, I find that the SCTF strongly held a reasonable suspicion that Mr Rankine was one of the robbers of the V Hotel.  I infer that was the reason that they followed him and then arrested him for the breach of bail offences.  The suspicion of SCTF detectives was supported by several intelligence sources to that effect.  Mr Rankine generally fitted the description of one of the offenders given by the employee victims of the robberies.  The detectives of the SCTF knew that one of Mr Rankine’s associates, Mr Lindsay, had left fingerprints on the cash box.  They knew that the Hyundai motor vehicle was hired by another acquaintance or relative, Ms Agius.  Items possibly connected to the V Hotel robbery were found in the Toyota he was driving.  Such was their confidence that Mr Rankine was the offender that they informed Detective Batzavalis that if Mr Rankine were remanded in custody the spate of robberies would abate. 

12. I find that Detective Batzavalis reasonably suspected Mr Rankine of involvement in a series of robberies including the V Hotel and other robberies.  He could not lawfully have supported the undercover operation if that were not so.  I find that Hamilton and Anderson accepted, at face value, the information on the application which showed that the SCTF reasonably suspected Mr Rankine of involvement in the V Hotel robbery.  In any event, Detective Batzavalis, Hamilton and Anderson were the agents of the investigating officers who held those suspicions.  It is the stage which the police investigation had reached, as a whole, which determines when police have embarked on the accusatory stage of their investigation. 

13. I find that if Mr Rankine had been formally interviewed by the investigating officers about the V Hotel robbery, he would either have requested the presence of a legal practitioner and/or would not have made any admissions, or alternatively he would have denied the offending.  As to the first two possibilities they are consistent with Mr Rankine’s refusal to answer questions on the bail offences and the advice he gave Hamilton.  As to the last possibility I so find because that is what Mr Rankine did when he was arrested for the offences.  I also rely on statements which he made in the conversation with Hamilton and Anderson to the effect that he was aware that he had been denied bail in an effort to place him under some pressure over the robberies.  There is no support in the evidence that if formally interviewed and cautioned he would have agreed to answer police questions about the V Hotel robbery.

14. I find that the detectives of the SCTF made a strategic decision to seek an undercover operation as an alternative to, and before, formally interviewing Mr Rankine.  It was strategic because if Mr Rankine were given an opportunity to exercise his right to silence on the allegation of robbing the V Hotel, and had refused to answer questions, that fact may have precluded the use of undercover operatives.  I so find having regard to the absence of any explanation from the SCTF detectives as to why they chose, as the ‘plausible option’ they wished to pursue, an undercover operation instead of formally interviewing Mr Rankine and because of Detective Batzavalis’ acceptance that he may not have supported the application if Mr Rankine had declined to answer questions about the V Hotel robbery.

15. The indicia of unfairness, in the sense of adducing evidence in Mr Rankine’s trial of admissions which were obtained in circumstances which compromised his procedural right against self-incrimination, are therefore as follows:

    ·The police had reasonable grounds to suspect that Mr Rankine had committed the V Hotel robbery when they embarked on a strategy designed to have him make admissions to undercover police officers (Dolan in [254] above);

    ·The police investigation had reached the ‘accusatory stage’ of their investigation (Murphy in [256] above);

    ·If a caution had been administered, the admissions are unlikely to have been made because Mr Rankine would then have understood that the purpose of the questioning was to put his answers before the jury as evidence of his guilt (Swaffield in [258] to [261] above);

    ·Mr Rankine’s admissions were elicited by police officers (albeit pretending to be prisoners) pursuant to a police stratagem adapting their interrogation of Mr Rankine to the ruse they were employing (Swaffield in [261] and Pavitt in [276] above);

    ·The content and form of the admissions is a direct product of the nature of the questions asked by Anderson and Hamilton (Pavitt).

16. I now move to balancing the considerations bearing on the exclusion of the evidence.

17. I start by acknowledging that if the evidence of Hamilton and Anderson were accepted, that Mr Rankine made the admissions of which they testified, then there is insufficient reason to doubt the reliability of those admissions.  It can be accepted that Mr Rankine had taken a recreational drug but there was no evidence that the effects of that drug were such as to cast out on the reliability of his alleged admissions.  Moreover, some of the detail of the conversation, for example, that fingerprints had been located on the cash box, was a salient aspect of the police investigation of the robbery and was accurate.  Nor did the circumstances in which the admissions were made raise a serious possibility that the admissions were the product of a tendency to make false boasts. 

18. However, there were other ways in which it was forensically unfair to receive the evidence of Hamilton and Anderson.  The poor quality of the audio recordings, the failure to record by audio means, or in writing, the specific questions asked and the answers given in response to particular questions put Mr Rankine in a position of great disadvantage in the forensic contest which ensued.  Even before audio‑visual recording was legislatively mandated it was the practice of interviewing police officers to record, contemporaneously, or soon after, both the questions and answers.  The failure to do so here, together with the late notice that evidence of the alleged admissions might be adduced denied Mr Rankine objective evidence against which to test, or with which to challenge, the credibility of the undercover police operatives and an opportunity to make his own close to contemporaneous note or to voice early objection to their account.  References in the evidence to the prior consistent accounts of the conversation in the cells of both Hamilton and Anderson was only necessary because of the failure to effectively record the conversation.  However those references may have unduly enhanced the assessment of their credit by the jury.  Moreover, even though Mr Rankine chose to remain silent at his trial, there was a real issue as to the credibility of Hamilton and Anderson given the strong evidence that they had collaborated in the preparation of their affidavits despite their denial on oath of having done so.  These elements fall to be evaluated in the context of the failure to caution Mr Rankine at the time when he was the primary suspect in the V Hotel robbery.

19. There can be little doubt that if the investigating detectives had embarked on an interview of Mr Rankine in which they had asked him even open-ended questions about any robbery he had committed without cautioning him, any admissions obtained would be excluded having regard to the strength of the suspicions they held.  I can see no distinction of substance for the purposes of exercising the unfairness discretion between the questioning strategy of Anderson and Hamilton and a formal interview.  Indeed, the use of the undercover operatives adds an additional element of unfairness because Mr Rankine was likely to be less guarded in what he said.  In that respect there is an analogy with a police officer telling a person, reasonably suspected of committing an offence, that the conversation is ‘off the record’, thereby implying that it will not be adduced in evidence.  That position may be contrasted with the mere failure by a known police officer to inform a suspect that a conversation is being recorded.[47]  Moreover because Mr Rankine was in custody on the bail offences he suffered the disadvantage of being questioned in an environment over which he had no control in which there could be no independent evidence of what was, or was not said, because of the failure of the recording device. 

    [47]   Em v The Queen (2007) 232 CLR 67.

20. The undercover operation against Mr Rankine was calculated to use deception to obtain admissions which were unlikely to be forthcoming if the police had conducted a formal interview when police had clearly moved to the accusatory stage.  Allowing the evidence of the alleged admissions to be adduced at Mr Rankine’s trial therefore compromised his procedural right to silence. 

21. The unfairness in this case has been amplified because the very circumstances in which the police went about procuring the admission meant that there was no objective audio-visual corroboration of the admissions which Mr Rankine was alleged to have made.  The unfairness was also compounded by the refusal of Anderson and Hamilton to fully disclose the questioning strategies they adopted on the grounds of public interest immunity.  Without a disclosure of the questions that were asked it was difficult for the jury to assess Mr Rankine’s defence that he was speaking only of the involvement of Mr Lindsay who had left his fingerprint and had not gone so far as to admit that he himself was involved in the robbery of the V Hotel.  The unfairness was  also exacerbated by the refusal to give Mr Rankine’s legal representatives and chosen expert a copy of the audio file in order to attempt to enhance it. 

1. The admission of the evidence of Mr Rankine’s confession has resulted in a miscarriage of justice.

   Rankine ground 4 – Failure to give corroboration direction

2. In Davies v The Director of Public Prosecutions[48] Lord Simonds LC who delivered the opinion in which all of their Lordships concurred explained that, for the purpose of the rule of practice of warning juries against convicting on the uncorroborated evidence of an accomplice, an accomplice of a thief included a receiver of the stolen property:

   In both of these cases (2) and (3) a person not a party or not necessarily a party to the substantive crime charged was treated as an accomplice for the purpose of the requirement of warning.  (I say ‘not necessarily’ to cover the case of receivers.  A receiver may on the facts of a particular case have procured the theft, or aided and abetted it, or may have helped to shield the thief from justice.  But he can be a receiver without doing any of these things.) The primary meaning of the term ‘accomplice,’ then, has been extended to embrace these two anomalous cases.  In each case there are special circumstances to justify or at least excuse the extension.  A receiver is not only committing a crime intimately allied in character with that of theft: he could not commit the crime of receiving at all without the crime of theft having preceded it.  The two crimes are in a relationship of ‘one-sided dependence.’ In the case of ‘system,’ the requirement of warning within the special field of similar crimes committed is a logical application within that collateral field of the general principle, though it involves a warning as to the evidence of persons not accomplices to the substantive crime charged.

   My Lords, these extensions of the term are imbedded in our case law and it would be inconvenient for any authority other than the legislature to disturb them… .

   [48] [1954] AC 378 at 400-402 (per Lord Simonds Lord Counsellor) (Davies).

3. The decision in Davies that a receiver is an accomplice has been accepted in Australia.[49]  The warning must be given if there is evidence before the jury on which it is reasonably open to find that the witness is an accomplice.[50]

   [49]   R v Turnbull (1985) 17 A Crim R 370; R v James (1983) 36 SASR 215.

   [50]   R v Rigney (1975) 12 SASR 30 at 51; R v Webbe and Brown [1926] SASR 108 at 111.

4. Lord Simonds, speaking for their Lordships, also held that it was not merely a rule of practice but a rule of law that the trial judge warn the jury that it is dangerous to convict on the uncorroborated evidence of the jury:[51]

   First proposition:

   In a criminal trial where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn the jury that, although they may convict upon his evidence, it is dangerous to do so unless it is corroborated.

   [51] [1954] AC 378 at 399.

5. The consequence of a breach of a rule of law was stated in Davies, and has been accepted in Australia, to be that the conviction will be quashed at least in a case in which there was no corroboration unless the proviso can be applied.[52] 

   [52]   See R v Rigney (1975) 12 SASR 30; Kelleher v The Queen (1974) 131 CLR 534 at 542 per Barwick CJ, at 556 per Gibbs J, contra Mason 560; Medcraft v The Queen [1982] WAR 33 cf R v Teitler [1959] VR 321.

6. The Judge reminded the jury, when summarising the addresses of counsel, of the evidence that Messrs Lindsay, Woods and Morrison and Ms Borsi-Watson were gambling on poker machines at Highlander Hotel:

   Mr Powell says that the two defendants who were present at that hotel playing the pokies might in some way be consistent with them having money as a consequence of the robbery.

   Mr Gaite says the presence at the Highlander adds nothing to the prosecution case.  It does not mean, he says, that his client, Mr Lindsay, was in the Hyundai at 2.15 a.m.

   Mr Graham reminded you Mr Rankine is not at the Highlander.  He took you, as you know, to particular aspects of the CCTV footage.  He said that Ms Borsi-Watson and Mr Morrison were spending money.  He invited you to think that that might be the proceeds of the V Hotel robbery.  He said Peter Morrison had the keys before giving them to Mr Woods.  Might Mr Peter Morrison have really been in control of that car said Mr Graham?

   Mr Coates said that Mr Woods deciding to take control of the car after he appreciated something was up should ring true.

   I now want to say something about Ms Borsi-Watson.  Ms Borsi-Watson told you she had been in a relationship with Mr Peter Morrison for about 15 years.  She said she did not know at the present time where that relationship was at as she is in custody in the Northern Territory.  However, she told you that they spoke the night before she was taken into custody in what appears to have been in about mid-October of this year.  She also told you she expected the relationship would continue if they were in the same State or territory in the future.

   She told you Mr Peter Morrison had been violent to her in the past.  She was asked about allegations she had made in the past, but claimed in evidence there was some things she could not recall, for example, her father being threatened with a knife, her jaw being broken.  It is for you to assess whether she has made allegations about Mr Peter Morrison’s conduct in the past, but withdrawn them.  If so, you will consider whether she has made false allegations to the police or has demonstrated a tendency to support Mr Peter Morrison despite his conduct.  Mr Graham particularly emphasised the latter.

   These will be important things to evaluate in considering her credibility and reliability about the events on 8 and 9 October.

   Mr Peter Morrison and Jordan Morrison have been mentioned by defendants who might have been involved, that is, Peter Morrison and Jordan Morrison have been mentioned as people who might have been involved by defendants.

   You will need to consider whether Ms Borsi-Watson has always been truthful with police about Mr Peter Morrison and whether her long relationship with him might give her a motive not to tell the truth about his movements on this particular occasion.  Is her history such that she has misled the police in the past, has lied perhaps to protect Mr Morrison and was prepared to do that in evidence in this trial?  These are all things that you must consider before accepting her evidence.

7. It can be seen that the Judge exhorted the jury to consider whether Ms Borsi‑Watson was always truthful because of features of her relationship with Mr Morrison.  However, his Honour did not warn the jury that they should treat her evidence with caution if they found that Ms Borsi-Watson was playing the poker machines with money which was the proceeds of the V Hotel robbery.

8. There was evidence on which the jury could find that all of the persons who played on the poker machines knowingly used at least some money which was the proceeds from the robbery.  It was open to the jury to reject the evidence of Ms Borsi-Watson as to the source of the money given the inconsistencies in her evidence on that topic and the reason for her visit to the post office.  The presence of Ms Borsi-Watson at the Highlander Hotel with Mr Lindsay and Mr Woods, whose fingerprints were found on the cash box and ATM drawer, was evidence from which that inference could be drawn given the additional circumstances that:

   ·a large quantity of coins were taken from the V Hotel;

   ·they were travelling in the car used in the robbery; and

   ·they were gambling within eight hours of the commission of the robbery.

9. However, this is not a case in which the evidence of Ms Borsi-Watson directly implicated Mr Rankine.  It simply excluded Mr Morrison as the offender.  The jury could not possibly have convicted Mr Rankine on that evidence alone.  Only the evidence of the text messages, the alleged admissions and the similarity in the photographs could support the conviction.  Ms Borsi-Watson’s evidence did no more than rebut the possibility, raised by Mr Rankine pointing to similarities between Mr Morrison and the robber, that another person may have been the robber bearing the tyre iron.  In those circumstances, the warning was not required by the rule stated in Davies, and there has been no miscarriage of justice on that ground.  I would grant permission to appeal but dismiss the appeal on Ground 4.

   Conclusion

10. I would allow the appeal.  I would not apply the proviso for the reasons given in [8], [18], and [22] above.  I would direct a new trial of all three appellants.

11. DOYLE JA:     I would allow the appeals.  I agree with the reasons and proposed orders of the Chief Justice.

12. DAVID JA:     I would allow the appeals.  I agree with the reasons and proposed orders of the Chief Justice.