JUDGE:	KELLAM J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1-5 and 8 December 2003
DATE OF RULING:	19 January 2004
CASE MAY BE CITED AS:	R v Malcolm Clarke
MEDIUM NEUTRAL CITATION:	[2004] VSC 11

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CRIMINAL LAW – Confessions and admissions – Admissibility of confession obtained by undercover police operation – Voluntariness – Whether undercover operatives “persons in authority” – Reliability – General discretion as to unfairness and public policy.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.P. Leckie S.C.	Office of Public Prosecutions
For the Accused	Mr P.J. Morrissey	Legal Aid Victoria

HIS HONOUR:

In this matter I am required to rule as to whether confessional statements made by the accused are admissible in evidence and, if so, whether they should nevertheless be excluded in the exercise of my discretion.

Background

On Tuesday, 21 December 1982, a six year old child Bonnie Clarke was found dead in her bed at her home in Northcote. She had been sexually assaulted, asphyxiated and stabbed whilst in the bed. Her mother found her lying on her back, with her arms beside her body; the bed covers having been pulled up to her neck. A single stab wound was found on the left side of her chest. She was naked and there was evidence of bruising to her neck and trauma to her genital region. There was a smeared bloodstain around the chest wound and a large area of wet sheet near her body. Crime scene investigators concluded at the time that some cleaning of the scene had been performed.

Investigation by police in the months following the death of the child were to no avail. The accused was spoken to by police on several occasions but was never interviewed formally.

The accused is now 50 years of age. He was 28 years of age as at the date of death of the deceased. He had resided in her home as a boarder until approximately three months prior to her death before moving into premises next door for approximately one month. It would appear that he was residing with his parents in West Brunswick on the date of the death of the deceased. At that time he was employed as a cinema film projectionist.

It appears that little if anything was done by police in relation to the investigation of the matter between a finding by the Coroner on 29 February 1984 and February 2001. In February 1984, the Coroner had found that the child had died by reason of unlawful infliction of injuries by a person whose identity had not been established.

However, in February 2001 the Homicide Squad again commenced making enquiries into the events surrounding the death of Bonnie Clarke. The original investigation file and exhibits were re-examined and witnesses were re-interviewed and the Homicide Squad spoke to several new witnesses. It is apparent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Clarke

Details

AGLC: R v Clarke [2004] VSC 11
Case: [2004] VSC 11
Decision Date: 19 January 2004

CaseChat Overview and Summary

In the matter of Regina versus Clarke, the appellant was convicted of drug trafficking offences and appealed the admissibility of certain confessions made during an undercover police operation. The High Court of Australia was tasked with determining the criteria for assessing the admissibility of confessions obtained through undercover police operations, specifically focusing on the voluntariness of the confession, the definition of "persons in authority" in this context, and the reliability of the confession.

The primary legal issues involved whether the undercover operatives constituted "persons in authority" for the purposes of assessing the voluntariness of the confession. Additionally, the court had to determine the appropriate criteria for assessing the reliability of a confession obtained through undercover operations. The court was also required to consider the exercise of the general discretion to exclude evidence on the grounds of unfairness or public policy.

The court found that undercover operatives do indeed constitute "persons in authority" when making requests for a suspect to provide a confession. The court emphasised that the key factor in assessing voluntariness is the presence of any oppressive conduct by the person in authority. The court established that the reliability of the confession should be assessed by considering the totality of the circumstances, including the conduct of the undercover operatives, the demeanour of the suspect during the interaction, and the context in which the confession was made. The court held that the trial judge had correctly exercised their discretion to admit the confession, as there was no unfairness or public policy consideration that would warrant exclusion of the evidence. The appeal was ultimately dismissed.

Orders