R v Douglas

[2000] NSWCCA 275

CITATION:	REGINA v BARRY DOUGLAS [2000] NSWCCA 275
FILE NUMBER(S):	CCA 60836/98
HEARING DATE(S):	3 July 2000
JUDGMENT DATE:	28 July 2000
PARTIES :	REGINA v Barry DOUGLAS
JUDGMENT OF:	Mason P at 1; Sully J at 87; Sperling J at 88

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0953
LOWER COURT JUDICIAL OFFICER :	Armitage DCJ

COUNSEL :	Appellant: M Austin Crown: M Grogan
SOLICITORS:	Appellant: Brock Partners Crown: S E O'Connor
CATCHWORDS:	Criminal law - joinder of counts against the accused - application for separate trials - multiple weapons and armed robbery offences - admissions during an electronic record of interview (ERISP) - police holding the accused incommunicado during search of home - denial of access to lawyer - s84, s85 and s 135 Evidence Act - onus of establishing illegality - evidentiary overlap between counts - directions given to the jury that each count be considered separately - unfair prejudice not arising.
DECISION:	Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

CCA 60836 of 1998

MASON P
SULLY J
SPERLING J

Friday 28 July 2000


REGINA v Barry Clifford DOUGLAS

The appellant was indicted on 17 counts including weapons offences, armed robbery and malicious infliction of actual bodily harm. He pleaded not guilty and was tried before a District Court Judge and jury. There was a directed verdict of not guilty in relation to the fourth count. The appellant was found guilty on the remaining counts. A series of concurrent sentences was imposed, the longest being a sentence of 16 years imprisonment with a minimum term of 12 years.

On the day of his arrest, 28 May 1997, the appellant participated in two lengthy ERISPs at Penrith Police Station. He made full admissions in relation to firearm offences at Penrith and also in relation to several robberies on the northern beaches which became the subject matter of eight of the counts in the indictment. On 12 June 1997 there was a further ERISP at Maroubra Police station during which the appellant made admissions as to several other robberies which became the subject of the other counts in the indictment.

This appeal against conviction raised two grounds, namely:

· Evidence of the admissions made during ERISPs on the day of the arrest should have been excluded;
· The trial judge was in error when he failed to grant the appellant’s application for separate trials.

Of the first ground, after a lengthy voir dire the trial judge rejected the appellant’s evidence that he agreed to make the ERISP admissions because of a deal involving the manner the police would treat his de facto wife and the other girl living at the appellant’s house. On appeal (and not at trial), the appellant complained of the trial judge’s failure to make findings based upon a conversation which the appellant said he took to amount to a refusal to permit him to have access to a lawyer. An investigating detective told the appellant that he was not permitted to make a phone call, due to evidence the subject of a search warrant being possibly removed or tampered with as a result of such a call.

Of the second ground, the appellant at trial applied to have each count in the indictment tried separately. His Honour accepted that the real issues in the trial were so intrinsically interlinked that it would be extremely difficult to extract the events of each count from the various electronically recorded interviews and the listening device recordings. He held that no valid basis had been established by the appellant for ordering separate trials.

HELD (by Mason P, Sully and Sperling JJ agreeing) dismissing the appeal against conviction:

Of the first ground, s84(1) of the Evidence Act did not require the rejection of the Penrith ERISPs. This was not a situation where the will of the appellant in custody was broken down by improper pressure or unfair conduct. The conduct of the police was not “oppressive, inhuman and degrading”. There was nothing to support the submission that the discussion “influenced” the appellant to confess; and the case was not run this way at trial. Everything points to the unlikelihood that the truth of the admissions was adversely affected. There was no issue as to the reliability of the admission under s85.

Of the second ground, the trial judge did not err in the exercise of his discretion in light of the grounds advanced at the time, nor did his ruling lead to any miscarriage. At the time the application was made there was no suggestion that the admissions in the ERISPs were unreliable. The only issue in the robbery charges was identity and the ERISPs contained full admissions as to the appellant’s participation. The Crown had made it clear that it would not be running the trial on the basis that the robberies could be linked through similar fact evidence. The jury were given repeated directions to the effect that each count was to be considered separately. There was little risk of prejudice in this case by running the trials concurrently.

R v Truong (1996) 86 A Crim R 188 (distinguished); The Queen v Swaffield (1998) 192 CLR 159 (distinguished); Clarke (1997) 97 A Crim R 414 (referred); R v Guldur (1986) 8 NSWLR 12 (referred); R v Verma (1987) A Crim R 441 (referred); Sutton v The Queen (1984) 152 CLR 528 (referred); De Jesus v The Queen (1986) 61 ALJR 1 (distinguished); Reg v McDonald (1979) 21 SASR 198 (followed).

IN THE COURT OF
CRIMINAL APPEAL

CCA 60836 of 1998



MASON P
SULLY J
SPERLING J

Friday 28 July 2000



REGINA v Barry Clifford DOUGLAS

JUDGMENT

1    MASON P: The appellant was indicted before Judge Armitage QC at the Sydney District Court on 9 September 1998. There were 17 counts:

• Counts 1-3 related to weapons offences at Penrith on 28 May 1997
• Count 4 became the subject of a directed acquittal

• Counts 5-9, 11-13, 15-17 related to a series of robberies at knife point in early 1997 ( Crimes Act , s97(1))
• Count 10 related to a February 1997 robbery at Epping which was followed by malicious infliction of actual bodily harm ( Crimes Act, s94). Very late in the trial this count was amended to one of robbery being armed with a knife, like the earlier counts.
• Count 14 related to an April 1995 robbery, being armed with a double barrelled shotgun ( Crimes Act , s97(2).

2    The appellant pleaded not guilty and was tried before his Honour and a jury. As indicated there was a directed verdict of not guilty in relation to the fourth count. The appellant was found guilty on the remaining counts. 3    A series of concurrent sentences was imposed, the longest being a sentence of 16 years imprisonment with a minimum term of 12 years in relation to the 14th count.

Summary of trial

4    The Crown case may be summarised as follows. 5    In March 1997 Peter Bannerman, whilst being questioned by the police in relation to other matters, agreed to assist the police regarding a number of armed robberies, some of them involving the appellant. On 26 May 1997 Bannerman tipped off the police about a robbery being planned with the appellant. The police arranged surveillance and installed listening devices. The appellant was arrested on 28 May 1997 in possession of the weapons which were the subject of the first three counts in the indictment, one of them being a sawn-off shotgun. 6    On 28 May 1997 the appellant participated in two lengthy recorded interviews (ERISP) at Penrith Police Station. He made full admissions in relation to the firearms offences at Penrith and also in relation to several of the robberies on the northern beaches in early 1997 which became the subject matter of at least eight of the counts in the indictment. On 12 June 1997 there was a further ERISP at Maroubra Police Station during which the appellant made admissions as to several other robberies which became the subject of the other counts in the indictment. 7    The ERISP transcripts contain the customary cautions, frequently repeated. At the end of each record of interview there was the customary acknowledgment that there had been no threat, promise or offer of advantage. 8    At the trial, the Crown evidence included the products of listening device warrants and videos relevant to the three weapons offences at Penrith; video cassettes and ERISP transcripts relating to the interviews; and witness statements from the victims of the various robberies. The latter deposed as to the circumstances of the offences without positively identifying the appellant, although sometimes giving descriptions of an offender that were consistent with the appellant’s description. The appellant’s co-offender Bannerman, who had assisted police investigations by wearing a listening device and by other means, also gave highly incriminating evidence. 9    The appellant gave evidence in which he effectively admitted the firearms offences of 28 May 1997, albeit asserting that Bannerman was the instigator of those offences. He said nothing about the other charges and refused to be cross-examined about them. He did not deny the ERISP interviews or cast any doubt on their reliability. 10    The appellant’s de facto wife, Leslie Brown gave evidence to the effect that she had never seen the appellant with a gun. She also painted Bannerman as the instigator of the robbery planned for 28 May 1997. 11    The appellant was represented at trial by Mr Bruce Miles, an experienced solicitor. 12    This appeal against conviction raises two grounds, namely:

• The trial judge was in error when he failed to grant the appellant’s application for separate trials;
• Evidence of admissions made during the electronic records of interview should have been excluded.

13    There is no challenge to the summing up. It is therefore relevant to the first ground of appeal to observe that the summing up contained repeated strong admonitions that the jury weigh up and consider separately the evidence in respect of the 16 counts. 14    The jury were taken through the evidence relating to the various robberies in early 1997. They had taken place at shops, bottle shops and a post office in the northern beaches area. There was practically no dispute about the circumstances of the individual robberies. The victims did not give evidence and their statements were tendered without objection. The jury were directed that the statements of the robbery victims were insufficient to identify the appellant and that the Crown case on identification depended essentially upon Bannerman’s evidence and the ERISP evidence. 15    Bannerman had given evidence that he had assisted the appellant in five of the robberies and in the preliminaries leading up to the events at Penrith on 28 June 1997. He had been granted immunity. Accordingly, an accomplice direction was given. 16    As to the ERISP evidence, the jury were reminded that the appellant had not denied making the admissions and had not contended that they were unreliable. They were also told that the appellant’s refusal to answer any questions relating to the robberies was quite unjustified. The jury were also warned that the Crown had to prove beyond reasonable doubt that the admissions were made and that they were reliable. This lastmentioned direction was repeated at the request of the appellant’s legal representative after the jury had first retired. 17    No complaint is made about the directions. 18    At the start of the trial the appellant’s solicitor applied for separate trials. However, it was agreed that it was more appropriate that the application to exclude Bannerman’s evidence and the ERISP evidence should be determined first. For that reason I shall address the grounds of appeal in reverse order.

Ground 2: Evidence of admissions made by the appellant during an electronic record of interview should have been excluded. The investigating police had led the appellant to believe that he was not able to contact any person, including a lawyer, while the interview was proceeding.

19    There was a lengthy voir dire hearing immediately after the presentation of the indictment and the taking of the not guilty pleas. Several matters were in issue. The appellant sought to exclude the ERISP admissions, Bannerman’s evidence and evidence obtained by means of the listening devices. 20    The application was rejected on 15 September 1998. Judge Armitage gave reasons which span 15 pages. 21    As recorded in the judgment:

The basis of the application is that the evidence was obtained unlawfully and unfairly. It is contended by the accused that for the purpose of making the accused vulnerable, the police engineered the commission of a crime and caused the informant to take active steps to involve the accused in that crime. As a result of that the accused was apprehended in respect of that crime, and admissions in respect of that matter, and several other matters, were obtained from him.
It is further contended that evidence of oral admissions made to the informant, Mr Bannerman, were obtained unlawfully and unfairly by disregarding the accused’s right to silence. The onus of proving that the accused was not influenced by the police to make admissions by being told that if he did not make them his wife would or might be charged, is an onus borne by the Crown on the balance of probabilities.
As to the unlawful and unfair conduct on the part of the police alleged by the accused in respect of the engineering of a crime, and the disregarding of his right to silence, the onus is upon the accused to prove those matters on the balance of probabilities.

22    Evidence had been given on the voir dire by the appellant, his wife, two police officers and Mr Bannerman. Much of the evidence and of the findings in the judgment relate to matters no longer in issue, especially the so-called entrapment issue involving Bannerman. The passage set out above also discloses that the appellant sought to have the ERISP admissions excluded because they stemmed from the police telling him that if he did not make them his wife would or might be charged. It is very clear from the evidence and the judgment that Bannerman’s involvement and the threat involving the appellant’s wife were the principal bases upon which the ERISP admissions were sought to be excluded, for various legal reasons. 23    These attacks on the ERISP admissions failed and there is no complaint on this account. 24    It is unnecessary to recount the judge’s reasons for rejecting the attack as related to Bannerman. However, the findings referable to the impact of the appellant’s fears for his wife need to be examined in a little detail, because they form a back-drop to the challenge to the ERISP admissions that is pressed in this Court. 25    Certain matters were not in issue or are no longer in issue. 26    The appellant was arrested at about 4.05pm. The first ERISP started at about 8.12pm. A search warrant was executed at the home of the appellant and his wife at approximately 8.40pm. The first ERISP concluded at 9.20pm and the second started at 9.47pm. Ms Brown was taken to Mt Druitt Police Station at about 11.30pm. The ERISP with the appellant was concluded at 12.26am and Ms Brown’s statement was witnessed at 12.50am. 27    When the appellant was arrested he was taken to Penrith Police Station. 28    It was shortly after 7pm when Detective Senior Constable Banfield, accompanied by Detective Senior Constable Devaney, spoke to the appellant in an interview room. The appellant was cautioned and, when asked whether he was prepared to be interviewed, said that he did not want to say anything. He also indicated that he did not wish to speak about other armed robberies which Detective Banfield had on a list. 29    Detective Banfield then told the appellant that a listening device had been fitted to Bannerman and to his vehicle and that conversations involving the appellant had been recorded earlier that day. The appellant was also told that Bannerman had supplied the police with a detailed statement. 30    Detective Banfield then said:

As we speak, arrangements are being made for a warrant to be executed at your home address in Habersham, searching for clothing, weapons and other items related to these offences.

31    The appellant replied: “Oh fuck, Leslie’s going to kill me”. He said that his girlfriend Leslie and another girl called Raelene were at the home. Detective Banfield then said: “It is my belief that these people may have been involved or connected with the offences mentioned on this list and they will be spoken to by the police”. The appellant made no comment. He crouched over, with his hands covering his face. Detective Banfield then said: “At this point, although you have not requested it, you are not permitted to make a phone call or contact anyone, due to evidence at your home possibly being removed or tampered with. Do you understand that?” The appellant made no comment. He appeared to be crying in his hands and remained crying for several minutes. 32    Detective Banfield then asked the appellant whether it was still his desire not to partake in any interview. The appellant asked what was going to happen to Leslie and Raelene and was told that they would be spoken to by police as to their involvement in the crimes. The appellant said that they had nothing to do with it. Detective Banfield said that he had been told that Leslie may be wearing stolen jewellery, the proceeds from previous robberies. The appellant replied that she didn’t really know where it came from: “I gave her some bits and pieces. It’s all in hock now anyway”. There was some further discussion about what would happen during the anticipated search at the home. 33    The two ERISPs which commenced at 8.12pm and 9.47pm respectively at Penrith then took place. 34    I have recounted the events leading up to the Penrith ERISPs as recorded in the note book and evidence of Detective Banfield. His evidence was accepted. Indeed there was little dispute about the portion that I have already set out, although (as I shall indicate) the appellant sought to add to it in certain respects. 35    There was a live issue in the voir dire about the timing of a telephone conversation between the appellant and Leslie Brown. The appellant’s evidence that this occurred during the first ERISP was contradicted by that of Detective Banfield and, effectively, by Ms Brown herself. More importantly, it simply could not fit with the objective circumstances which point overwhelmingly to the police ensuring that the appellant had no communication with his wife before the execution of the search warrant and the completion of the interviewing of each of them. The rejection of the appellant’s case on the timing issue obviously contributed, and properly so, to the rejection of his case that the confessions in the two Penrith ERISPs were induced by a deal that the police would not charge Ms Brown if the appellant agreed to cooperate that night. 36    It is however necessary to return to the appellant’s evidence on the voir dire to the extent that it casts light upon the remaining issues concerning the admissibility of the three ERISPs. 37    The appellant’s evidence was that he broke down and agreed to the interviews after the police told him about Bannerman’s cooperation. (There is no dispute about this.) But he also said that Detective Banfield told him:

…that they had my wife, and the girl that was staying with us and her baby at Mt Druitt Police Station, and that they were talking to her and questioning her.
He said that this caused him to break down and start crying and that, because he wanted to get Leslie out of trouble he agreed to speak with the police (Tr p22). He recounted a conversation with a detective to the effect that the detective would get Leslie to ring him and say she was not going to be charged and the appellant would say or do whatever the police wanted him to do (Tr pp23-4).

38    In critical passages in his evidence (see Tr pp 23, 26-28, 51), he stated in the clearest of terms that his reason for changing his mind and making the ERISP admissions at Penrith was his concern about his wife and his confidence that “they were going to look after her because I was doing the right thing” (p27). For example, he said (at Tr p51):

…The reason I made the admissions I did was on the proviso that the bloke in charge of the operation was going to take Leslie home and let her ring me up.
At these portions of his evidence he made no reference to any influencing factor other than what he said had passed between him and the police about his wife. See also pp31, 32-33.

39    It was put to the appellant in cross-examination that the telephone conversation with his wife took place much later in the evening, indeed after the second ERISP had been completed. He said that he could not be sure about this but he doubted that it was that late (Tr p29). The appellant’s evidence about the timing was correctly rejected. It was clear from Ms Brown’s evidence that the search warrant was executed during the mid-evening (she estimated it at about 9.00pm) and that she was then taken to Mr Druitt Police Station where she was interviewed and signed a statement. Her own ERISP finished at 12.27am on 28 June. Obviously she was not allowed to go home until this had happened. She then was allowed to return home and it was from home that she telephoned and spoke to the appellant (see Tr pp66,67, 78, 84. See also Detective Sergeant Dowding’s evidence at pp 91, 92, 106, 109). 40    In these circumstances, it is hardly surprising that his Honour rejected the appellant’s evidence that he agreed to make the ERISP admissions because of some inducement based on a deal involving the manner the police would treat Ms Brown and the other girl living at the appellant’s home. The police officers denied any such deal and their evidence was accepted in preference to the appellant’s. 41    There is no longer any challenge based upon some deal involving Ms Brown, which was (as I have indicated) the reason advanced by the appellant in his evidence for having made the damning confessions. 42    It is clear that the basis of the application to exclude the ERISP evidence was the so-called deal that Ms Brown would not be charged. That is the basis stated at the beginning of the learned judge’s reasons, in the passage set out at par 20 above.

Holding the appellant incommunicado

43    What is now complained of is the trial judge’s failure to make findings based upon a conversation which the appellant says he took to amount to a refusal to permit him to have access to a lawyer. I shall refer to this as the incommunicado conversation, without preempting the issue of its precise content or purpose. 44    Early in his voir dire evidence, as the appellant was giving a version of the discussion with the senior police officer that led to the alleged “deal”, the appellant gave the following evidence (Tr p23):

A. Before all this took place there was something I left out. They said, like, “We are not going to let”, the two detectives that originally started questioning me, they wouldn’t let me ring a solicitor because they wanted to carry out a search warrant at 8.30am that night, that’s the house at Habersham, so I couldn’t ring a solicitor but.
Q. Did you ask permission to ring a lawyer?
A. I didn’t ask because they told me before I asked, they said, “We are not allowing you, we are refusing you to ring a solicitor because he might tamper with evidence that’s at the house that we want to conduct a search warrant at”, so I didn’t ask. They refused it straight away. As things went, unfolded, this detective, I said “You get Lesley to ring me, and let me know that she’s all right and she is not going to be charged with anything from the house, from home, and I will say whatever you want me to say. I will do whatever you want me to do”.

45    This evidence was not the subject of cross-examination. However, as indicated above, the appellant’s later evidence in chief and in cross-examination was clearly to the effect that the reason why he commenced the ERISP and continued with it was concern about his wife and his confidence that the police would honour a deal they struck with him before the ERISP commenced. 46    Later, in cross-examination, it was put to the appellant that he was told (Tr p49):

At this time point, although you have not requested it, you are not permitted to make a phone call or contact anyone, due to evidence at your home, possibly being removed or tampered with.

The appellant’s answer was:
I was refused to ring a solicitor only not anybody else.

When asked whether he was told that he couldn’t speak to anybody he said:
No, I was told I couldn’t ring a solicitor.

47    Detective Senior Constable Banfield was the officer in charge in relation to the proceedings against the appellant. Statements relating to his dealings with Bannerman leading up to and including the arrest of the appellant on 28 May 1997 were read onto the transcript in the voir dire. These included evidence of the conversation with the appellant in which he was told that Bannerman would be giving evidence against him and that evidence had been obtained through the use of listening devices. Detective Banfield also told the appellant that he believed the people at the appellant’s home, including his wife, may have been involved or connected with the offences mentioned on a list (relating to the robberies under investigation). At that stage the appellant made no comment but leant over with his hands covering his face. Detective Banfield then said:

At this point, although you have not requested it, you are not permitted to make a phone call or contact anyone, due to evidence at your home possibly being removed or tampered with. Do you understand that?

The appellant made no comment and he appeared to be crying. He did not at that stage ask to speak to a solicitor (Tr p118). Then followed the first ERISP which, according to Detective Banfield, was not interrupted by any telephone calls involving the appellant.

48    Detective Banfield’s evidence about the terms in which he told the appellant that he was not permitted to contact anyone is consistent with what he recorded in his police notebook. Furthermore, his evidence that a reason was given (ie concern about interfering with the integrity of the search at the home) is corroborated by the appellant’s own evidence about the conversation (see pars 43, 45 above). 49    Much of Detective Banfield’s cross-examination by Mr Miles related to his dealings with the informant Bannerman and the attempt to make some case for a stay based upon entrapment. 50    Detective Banfield agreed that the ERISP in which the admissions were made came after he had told the appellant about the strength of the police case relating to the events of 28 May, after he had told him that he was not allowed to make a phone call (Tr p144) and after he became aware that the appellant was concerned about his wife and the other woman living at his home (Tr pp144, 149). He agreed that he had told the appellant that he was “not allowed to contact anyone” (Tr p151) and that this meant that he was incommunicado, locked off from the rest of the world. He volunteered that this was in relation to property being tampered with or removed from the appellant’s house (Tr p151) and endeavoured to explain he did not mean to exclude a solicitor and that if the appellant had wanted a solicitor he would have got one (Tr pp151-2. See also at p144). 51 The submissions are recorded (Tr p195ff). The Crown Prosecutor accepted that the onus in relation to whether or not the accused was induced to make a statement lay on the Crown (he referred to Evidence Act s84). He stated that, as he understood the defence submission it would be that the accused made the admissions he made because it was put to him that if he did not make admissions, then his wife would be charged (Tr p195). The Prosecutor accepted that the onus of establishing illegality lay upon the defence and that, if illegality were established, then the onus shifted back to the prosecution to persuade the court in the exercise of its discretion to allow the evidence to be admitted. It was submitted that the accused also bore the onus in relation to discretions under ss135 and 138 (Tr p196). 52 At this stage Mr Miles put his submissions. As to the ERISP evidence, he referred to the appellant’s initial indication that he did not want to say anything to the police. He submitted (Tr p199) that the police then:

proceeded to, on their own evidence, to break his will, to make his conversations that followed less than voluntary.
They put the pressure on him about Leslie being in captivity and they put the pressure on him in respect of other matters which finally came to the point where the evidence is given by them that he broke down and wept.

Later (at Tr p200) he referred to the pressure “ put on him by Lesley(sic) and by the entrapment that had occurred with his colleague in crime”.

53 Nowhere in his submissions did Mr Miles refer specifically to the conversation about refusing the appellant the right to make a phone call prior to the commencement of the ERISP. Nowhere did he deny the statement of the issue on the question of inducement as recorded at the commencement of the Crown Prosecutor’s submissions (par 50, above). When the Crown Prosecutor commenced his main submissions he stated the issue on inducement in similar terms (Tr p204), again without contradiction by Mr Miles. 54 As indicated above, there was really no dispute as between the evidence of the appellant and of Detective Banfield that the police officer told the appellant that he would not be permitted to ring anyone lest the integrity of the search at his home that was yet to take place would be compromised. The nature of the conversation clearly locates it within the 7pm-8.30pm time frame. Whatever may have been Detective Banfield’s intentions, the appellant said that he understood the conversation as forbidding the appellant to ring anyone, even a solicitor. The trial judge recorded this part of the appellant’s evidence (Judgment p5). Later (p9) he implicitly found that Detective Banfield had refused to allow the accused to contact anyone by phone. In this context he recorded Detective Banfield’s qualification as to what he had meant by this. 55 No further attention is paid to this aspect of the evidence in the judgment. Rather, the judgment addressed the issue raised in the submissions and considered whether the appellant was induced to confess by some deal involving his wife. Judge Armitage correctly rejected that proposition. 56 In this Court, the appellant submits that the primary judge erred in not dealing with the issue presented to him by the evidence that the appellant was told that he could not contact anyone prior to execution of the search warrant. It was common ground that Detective Banfield had said this, whatever he may have intended. The appellant said that he took this to include forbidding him the right to contact a solicitor. No finding was made as to whether the appellant was to be believed that those words were used or in this perception of what he was told. We do know that he did not ask to contact a solicitor before the ERISPs at Penrith or the later ERISP at Maroubra (he was brought there from gaol). Whether his failure to seek legal assistance at Penrith was influenced by his perception of what Banfield told him is not the subject of any finding. This is quite understandable, given the way the issue was fought at trial and the fact that the only reason given by the appellant for making the admissions was the so-called deal involving his wife and the other girl staying with them. 57 This appeal is to be determined in accordance with the law as it stood before the introduction of Part 10A of the Crimes Act. 58 The appellant submits that the Penrith ERISPs should have been excluded because he was held incommunicado. He relies upon ss84(1) and 85 of the Evidence Act 1995, R v Truong (1996) 86 A Crim R 188 and The Queen v Swaffield (1998) 192 CLR 159. The two cases cited deal with a situation quite removed from the present, namely where a person unwilling to speak to the police was effectively tricked into confessing because he did not realise that a friend he was speaking to was an agent of the police. 59 In my view, s84(1) did not require the rejection of the Penrith ERISPs. The incommunicado conversation was not relied upon below as “violent, oppressive, inhuman or degrading conduct” let alone conduct that led to the confessions. Had it been, the trial judge would doubtless have addressed the critical issue as to the appellant’s perception of what Banfield was really saying and really intimating and its causative impact. It is far from clear that the appellant would have been accepted on these issues: his credibility was severely shaken by the doomed attempt to set up a case based upon a deal concerning Ms Brown made early in the evening and while she was (on his case) in custody; the conversation was expressly related to police concern about interfering with the integrity of the search then about to be undertaken; the clearest of warnings given at the start of the ERISPs; and the appellant never suggested that the incommunicado conversation induced him to start and complete the three ERISPs. 60    The appellant was under lawful arrest. The police were not in the circumstances precluded from asking him whether he would agree to be interviewed despite earlier unwillingness (see Clarke (1997) 97 A Crim R 414). This was not a situation where the will of an accused in custody was broken down by improper pressure or unfair conduct. The revelation that Bannerman had cooperated with the police, that evidence had been collected through the use of listening devices and that the appellant’s wife would be questioned was no doubt the reason why the appellant switched in his resolve and yielded up his right of silence. But I would not characterise the conduct of Detective Banfield in disclosing these matters as “oppressive, inhuman and degrading”. 61    Had there been any suggestion at trial that the incommunicado conversation had been the cause of the appellant breaking down I would have been concerned about the absence of findings about precisely what was said, the appellant’s perception of what Banfield said and its causative impact. Non sequitur that I would have found that the trial miscarried. But the critical points are that there was nothing to support the submission that the discussion “influenced” the appellant to confess; and that the case was not run this way at trial. 62 The trial judge’s favourable exercise of his discretion is expressed loosely, as if it were a discretion to admit evidence. Having regard to the other findings, it should be read as an exercise of the discretion not to exclude (cf s135). It is pertinent that the judge ruled that the means adopted in the present case to acquire evidence against the accused were legitimate and that there was no public interest to be served in rejecting the admissions made. In the exercise of his discretion he decided that the whole of the challenged evidence would be admitted. 63 Had I been of the view that s84(1) applied, or arguably so, then it would have been necessary for this Court to address the different discretion under s138. I would have held that the discretion should have been exercised in the Crown’s favour in light of (a) the non-existent evidence of causal impact of the incommunicado conversation, (b) the failure of the appellant to raise this ground of attack either before or after the ruling which, if erroneous as to the issues, could have been revisited; (c) the absence of evidence that Detective Banfield intended to contravene any law or deliberately to override the appellant’s rights and (d) the absence of any suggestion of doubt about the unreliability of the ERISP confessions. I am satisfied that no miscarriage occurred on this ground. 64 Section 85 of the Evidence Act offers even less assistance to the appellant. Not only does the appellant face the problems relating to the “influence” of the incommunicado conversation that I have discussed above, but everything points to the unlikelihood that the truth of the admissions was adversely affected and that is the crux of s85. I have not overlooked the fact that the appellant is an aboriginal person. But little reliance upon this was advanced at trial and none in this Court. The evidence that was tendered on the voir dire apart from the ERISPs shows the appellant to be a determined and resourceful person in his criminal activities (see, eg the listening device transcripts). The true reasons why he agreed to the ERISPs at Penrith have already been referred to. The reliability of the confessions was not disputed in the voir dire or at the trial. 65    I would reject Ground 2.

Ground 1: The trial judge erred when he failed to grant the appellant’s application for separate trials

66 Immediately following the ruling as to the admissibility of the ERISP evidence, the appellant’s solicitor applied that each count in the indictment be heard separately, on the basis that each matter was in fact quite separate. Pressed by his Honour to indicate why the community should be put to the expense of 17 separate trials, Mr Miles submitted that the appellant would have the best possible chance of acquittals if there were individual trials. He expressed concern about the impression that the jury would get from hearing evidence about a group of armed robberies in the same area. He was also concerned because the Crown case depended essentially upon the confessions which were structured in such a way that they dealt with the whole lot of offences together. If separate trials were granted, then only those portions of the ERISP relevant to each trial would go before that particular jury. 67 The Crown Prosecutor took objection based on the absence of a timely Notice of Motion (cf District Court Rules Pt 53 r10). He also opposed the applications on their merits having regard to the inextricable overlapping of the various issues and the difficulty that would be involved in extracting the

events of each individual count from the various ERISPs and listening device conversations. He also reminded the judge of Mr Miles’ submission (made during argument as to the admissibility of the ERISPs) that there was no issue that the admissions were made and that they were reliable. The Crown indicated that it was not proposed to suggest to the jury that similar fact reasoning should be applied.

68    In reply, Mr Miles submitted that the jury should be allowed to determine the admissibility of the admissions and to determine whether certain types of evidence should be accepted or rejected. 69    Judge Armitage gave brief reasons for rejecting the application. He noted that the basis of the application was that the appellant would have a better prospect of a fair trial if the 17 counts were to be separated. His Honour accepted the Crown Prosecutor’s submission that the real issues in the trial were so intrinsically interlinked that it would be extremely difficult to extract the events of each count from the various electronically recorded interviews and the listening device recordings. He also accepted the submission that, in accordance with general principles, no valid basis had been established for the ordering of separate trials. 70    The following day Mr Miles renewed his application. He asked the trial judge to make an order “only for one trial, that can be what could be called a test of the whole issue” (Tr p241). The issue foreshadowed was that of police propriety. The discussion that followed shows that what Mr Miles wanted was the opportunity to go to trial on a single count (“Any one the Crown chooses. The worst of the list if they want to.”) on the basis that it would be contested on the issues of police propriety. Mr Miles was concerned that the appellant be in a position to appeal as quickly as possible in the event of an adverse verdict. Reading not far beneath the lines, Mr Miles was wanting to preserve the opportunity for the appellant to plead guilty to the remaining charges, with such benefits as flowed therefrom, if convicted in the “test case”. 71    This unusual and inappropriate approach got nowhere. The trial judge refused to have the matter delayed any further and called upon the appellant to plead to the whole indictment. This happened and the trial commenced. 72    To the extent that anything appears clearly, the concern expressed by Mr Miles about the joinder of the counts appears to relate to the combination of the robbery counts. Mr Miles was expressing fear that the jury would reason impermissibly having regard to the sheer number of offences charged, the similarities in modus operandi and the broadly common area in which the robberies occurred, regardless of the strength of directions that each charge was to be considered separately. 73    Nothing that emerged in the course of the voir dire that intervened between the separate trial application first being made and when it was pressed indicates what, if any, plan was in mind for the conduct of the trial if it was to go ahead. Nothing had been raised about the reliability of the damning ERISPs and nothing to that effect was to emerge in the trial. The closest Mr Miles got to enunciating his client’s “defence” was that based on invitation to the jury to reject the Crown case because of distaste for police methods, particularly the way Bannerman was used to make an overwhelmingly strong case relating to the events of 28 May 1997. And so the trial was conducted. 74 The discretion to order the separate trial of counts in an indictment (Crimes Act 1900, s365: see now Criminal Procedure Act, 1986 s64) will not be lightly interfered with on appeal; and the appellate court will examine the impact of the decision upon the trial as it unfolded (R v Guldur (1986) 8 NSWLR 12, R v Verma (1987) 30 A Crim R 441). 75 The appellant reminded the Court of the principles stated by Brennan J in Sutton v The Queen (1984) 152 CLR 528 at 541-2, as approved in De Jesus v The Queen (1986) 61 ALJR 1. 76 Given the basis of the present application and the issues involved, the case is far removed from Sutton and De Jesus. In Sutton, the attack on the conviction (ultimately unsuccessful) was based on the prejudice stemming from a joint trial on three counts of rape. Identity was in issue throughout, although two of the victims claimed to identify the accused and, in the case of the third, there was challenged evidence of a confession. 77    In De Jesus there were two counts of rape, but the accused was raising an issue of identity in one case and consent in the other. In those circumstances, as Gibbs CJ said (at 3):

The jury would inevitably have been influenced by the fact that the offences were tried together to find against the applicant on both issues.

78    In my view, Judge Armitage did not err in the exercise of his discretion in light of the grounds advanced at the time, nor did his ruling lead to any miscarriage. 79    There was significant evidentiary overlap in that Mr Bannerman was a witness as to the events of 28 May 1997 as well as to some of the robberies dealt with in the later counts of the indictment. It is also relevant that the application to split the counts was pressed at a time after the three ERISPs had been (properly) admitted into evidence and the challenges based upon entrapment or misconduct of the police through Bannerman had been rejected. 80    At the time the application was made there was no suggestion that the admissions in the ERISPs were unreliable. No such suggestion was to emerge in the trial. The appellant’s refusal to be cross-examined as to any matters concerning the robbery counts (counts 5-14) really undermines the argument that any miscarriage flowed from the decision rather than providing (as the appellant submits) some material to the contrary. 81    The Crown made it plain that it would not be running the trial on the basis that the robberies could be linked through similar fact evidence. The jury were directed not to rely on the robbery evidence as a basis for identification. The details of the robberies were never in issue. The only question was whether the appellant participated in them. If the ERISPs were accepted as reliable then this issue was beyond doubt as to the totality of the robbery counts. 82    The jury were given repeated directions to the effect that each count was to be considered separately. Nevertheless, it would have been amazing had they acquitted given the fact that the reliability of the ERISPs was not put in issue at trial and the fact that the jury had seen the appellant refuse to answer any questions by way of cross-examination directed to the later counts in the indictment. 83    In De Jesus, Dawson J was one of the majority. He said at (10) that:

… the very nature of some offences is such that, as a general rule, they ought not to be tried together if the evidence on one count is not admissible on another count and I think that sexual offences fall into that class. That was the view taken by the Chief Justice in Sutton v The Queen and it is a view which is acted upon in practice. It is a view which derives support from the majority in Reg v Boardman [1975] AC 421. I prefer to express myself in a general way rather than categorically, because it is possible to conceive of instances where the high degree of prejudice which can usually be expected to arise from evidence of offences of a sexual nature does not in fact arise or may be adequately overcome by a proper direction. Where, for example, the sole evidence implicating an accused person in a number of offences of rape is the one confession, it may well be that no unfair prejudice will arise from a joint trial of those offences. Cf Reg v McDonald (1979) 21 SASR 198.

84    In McDonald, King CJ and Sangster J said (at 204):

Where … the risk of unfair prejudice to the accused from having before them evidence which is admissible on one count but not on another can be removed effectively by an appropriate direction, it ceases to be a consideration in favour of separate trials. There was little risk of prejudice in this case. None of the victims purported to identify the appellant as the assailant. There was therefore no risk of prejudice from an identification in relation to one count being used in considering a count in respect of which it was inadmissible. The truthfulness of the police evidence as to the whole of the confession was in issue. The fact that the police attributed a confession to thirteen crimes to the appellant did not render their evidence any more likely to be believed than if they had attributed a confession to only one crime. There could be no prejudice arising out of the knowledge which the jury had when considering any particular count, of the portions of the confession relation to the other counts.
Cox J was in substantial agreement with the joint judgment.

85    The passage quoted from the joint judgment speaks directly to the present case. I would respectfully adopt and apply it. Ground 1 should be rejected. 86    I would dismiss the appeal. 87    SULLY J: I agree with Mason P. 88    SPERLING J: I agree with the orders proposed by Mason P and with his reasons.

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