R v Favata

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1464 of 2002

QUEEN

LORENZO FAVATA

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JUDGE:	Teague J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September - 20 October 2003
DATE OF RULING:	22 September 2003
DATE OF REASONS:	23 January 2004
CASE MAY BE CITED AS:	R v Lorenzo Favata
MEDIUM NEUTRAL CITATION:	[2004] VSC 7	1^st Revision - 7 September 2004

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Criminal Law - Ruling - Murder - Evidence - Admissions - Voluntariness - Discretion to exclude - Secretly recorded conversations - Police Deception - Considerations relevant to admissibility - Reliability - Right to silence s. 464 of Crimes Act

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Kayser	Office of Public Prosecutions
For the Accused	Mr L. Hartnett	Patrick D Dwyer

HIS HONOUR:

This revised version of the ruling is currently the subject of a suppression order made by Teague J on 7 September 2004, to operate until 31 December 2005 or further order. For the names of undercover police operatives, the initials "XX", "YY" and "ZZ" have been substituted.

Before the trial of Lorenzo Favata, charged with the murder of Samuel Macumber on or about 1 April 1999, I was asked to rule as to the admissibility of certain confessional material that the prosecution wanted to lead, and that the accused wanted excluded. In the course of a series of conversations, the accused had made statements referring to a murder. The conversations were recorded. That was not known to the accused at the time. The conversations were with undercover policemen who used the names ZZ and YY. I heard evidence on the voir dire from ZZ and YY and from three other police officers, and a psychologist, Elizabeth Warren. XX, YY and ZZ were in 2001, members of the Victorian Police Undercover Unit. Detective Senior Constable Leigh Smyth was then with the Homicide Squad. Sergeant White (who was not called to give evidence on the voir dire) and Detective Senior Constable Peter McLean were, at relevant times, stationed at the Northcote Police Station. On the voir dire, a number of exhibits were tendered. They included videotapes and audiotapes of the conversations and of formal interviews of the accused by Smyth that preceded and followed the conversations. After the evidence had been led and I had heard argument from Mr Kayser, prosecuting, and Mr Hartnett for the accused, I ruled that the material should not be excluded as having been involuntarily made or on discretionary grounds. I said I would provide my reasons later. These are the reasons.

On the afternoon of Friday 2 April 1999, the body of the deceased was found in his unit located at the corner of Centre Road and Rayhur Street, Clayton. Investigation of the scene revealed a lot of blood and two blood stained knives nearby. The unit had been ransacked. There were bloodstains of various kinds in different places, including on the patio outside the front door. On the floor coverings, in a number of places, there were footwear impressions in blood. A trail of such impressions led to a location on the roadway in Rayhur Street, which was about a car’s width from the kerb. The finding was consistent with the person wearing the footwear having got into a car there. There were drag marks in blood on the floor coverings. Considerable time was spent by a crime scene examiner and a bloodstain interpretation forensic scientist reviewing the crime scene findings. Findings at the autopsy included multiple stab wounds to the neck and chest and multiple linear lacerations to the face. There were also abrasions in the buttock area consistent with the deceased having been dragged over carpet.

Enquiries were made of those people who had had recent contact with the deceased. He had last been spoken with by telephone at 9 p.m. on Wednesday 31 March. Attempts made to telephone him on the Thursday morning were unsuccessful. There are some indications of the deceased having, from retirement and from gambling winnings, been likely to have had more than a small amount of cash at his unit. On Sunday 4 April, a statement was obtained from one friend of the deceased, a Stephen Morison. Certain matters stated by him to the police led to Stephen Morison being treated as a suspect. Other matters stated by him led to the police taking an interest in the accused. Search warrants were issued. Late on 15 April 1999, the accused was arrested. In the early morning of 16 April, the accused was interviewed by Smyth as to the death of the deceased. The interview started around 5.15 a.m., and lasted for just over an hour. The accused denied any knowledge of the circumstances of the death of the deceased. He said he had met the deceased once only, when he had gone to the deceased’s unit with Stephen Morison a few days before the death. The accused answered most of the questions put to him, including as to where he was on the night of 31 March. He said that he was then with his wife. He gave a number of no comment answers. I will come back to aspects of that interview.

A listening device was placed in the car of Stephen Morison pursuant to a court order. It revealed little of significance, save that the accused was recorded as having said that the police had seized the wrong boots and that he was aware that Stephen Morison had been stealing money from the deceased. Smyth was left with suspicions as to each of the accused and Stephen Morison. Further statements were prepared, but the case started to “go cold”. Only limited material was made known to the public. I will come back to aspects of what was in the public arena.

In December 1999, Smyth made an application to XX, as the officer in charge of the Undercover Unit. The application was to have each of Stephen Morison and the accused made the subject of an undercover operation. Smyth was aware that the Undercover Unit was in the process of implementing a different approach to the use of undercover police in homicide investigations. That approach was based on information obtained from Canada. At the time that the application was made, the approach was treated as appropriate for older, colder cases. In December 1999, XX decided that it was not appropriate at that time to process for approval the applications made by Smyth. Smyth bided his time. In 2001, he pressed XX for the application to be reconsidered for processing for approval. XX took the application to, and obtained the approval of, Detective Superintendent Blick and Inspector Woolfe. I will come back to the circumstances of that approval.

XX, after obtaining the approval, remained the officer who controlled the undercover operation. XX told Smyth what circumstances might trigger action. Smyth put an appropriate “bookmarking” as to the accused on LEAP, a computerised police record. On 8 August 2001, the accused was charged with theft. He was bailed to appear at Preston Court on 8 October 2001. On 17 August, McLean, who was investigating a burglary the previous day, linked to the accused an item that was stolen in the burglary. McLean decided to execute a search warrant at the home of the accused on 18 August. He checked LEAP. He found the bookmark left by Smyth. He asked White to contact Smyth. Smyth contacted XX. XX chose ZZ as the operative. XX prepared a “scenario”, the term given in the Undercover Unit to the instructions prepared to guide ZZ as to his role in meeting with and in talking with the accused as his “target”. The undercover operation thereafter proceeded according to a carefully controlled modus operandi. Some of the features of that modus operandi included:

§ ZZ would speak of himself to the target as being a member of a criminal group,
§ ZZ would speak of YY as being the boss of that group,
§ The group would be portrayed to the target as being careful and successful,
§ There would be a series of scenarios,
§ All scenarios would involve ZZ,
§ Only the last scenario would involve YY,
§ The group might recruit others, such as the target, to join the group, provided YY approved,
§ ZZ's role would include the befriending of the target as a potential recruit to the group,
§ ZZ's role would not include, but YY’s role would include, a probing of a recruit’s background,
§ What ZZ and YY would talk or ask about at any time would be determined in advance in principle, but what was actually said and asked would have to depend upon circumstances,
§ ZZ would be given only limited information about the target, and
§ YY would be briefed more extensively.

On 18 August, the search warrant organised by McLean was executed. Other goods that had been the subject of the burglary that McLean was investigating were located. The accused was interviewed. He was charged with burglary. He was transferred to the cells at the Mill Park Police Station. Before he was placed in a cell there, ZZ went into that cell.

From the time that he entered the cell and thereafter in the presence of the accused, ZZ played his role as a member of a criminal group. He talked in appropriate terms to the accused. The conversation between the two in the police station cell was not recorded. There was discussion about the desirability of the two men meeting up again. There was an exchange of telephone numbers. ZZ left the cell. The accused was later granted bail. Over the next few days, there was telephone contact as to arranging a further meeting. There were meetings between ZZ and the accused on 28 and 30 August, and 5 and 12 September 2001. What was said on those occasions was covertly recorded. Also covertly recorded was what was said when the accused spoke with YY on 12 September. The transcript of what was recorded extends over 270 pages.

“Annexure A” to these reasons is a table of 2 pages. The table contains an expurgated summary of some significant parts of what was said as transcribed. What has been purged includes a mass of mindless drivel and many four letter expletives and their derivatives. I have formatted the expurgated summary in what cannot be a totally objective and precise way. The italicised parts are substantially in the words of ZZ and YY. They give the flavour of the roles of each. The underlined and bold parts are substantially in the words of the accused. The underlined parts give the flavour of times when the accused could well be seen to have been exaggerating. The bold parts give the flavour of matters that tend to reveal either what would be known only by the police or by the person responsible for the death of the deceased. I prepared the dissection in Annexure A primarily in the light of matters that were the subject of questions asked by Mr Hartnett during cross-examination of the police on the voir dire.

It sufficiently appears from the expurgated summary that the accused from an early stage spoke to ZZ of matters that interested the police. Those matters included references potentially linked to the Macumber killing. At the meetings on 28 and 30 August, the accused spoke of a murder, involving a knife. But the accused also spoke of matters that would have caused concern. There were several instances of what were, or were likely to have been, exaggeration. The reliability of the information was therefore questionable. That was where the role of YY as boss became important. He could probe where ZZ could not. But ZZ had to prepare the ground. He spoke to the accused of the importance of telling YY the truth and of not exaggerating. On 12 September, ZZ introduced the accused to YY. It was at a venue designed to impress, a suite at the Crown Towers Hotel. In a lengthy discussion between the accused and YY that took place, the accused provided much more information potentially linked to the Macumber killing. The substance of what the accused said was conveyed to Smyth.

On 17 September 2001, the accused was formally interviewed again by Smyth at the office of the Homicide Squad. The accused was shown part of the video recording of his conversation with YY. He said, in short, that what he had told ZZ and YY was a lot of lies made up by him to impress them. He said that he did not know how the victim was killed, save that he learned from the newspapers that it was a brutal murder, and that the victim had been bashed pretty badly. He said that he had made up the part about the stabbing. He denied that he was responsible for the killing and said that he was at home when it happened. He was arrested and charged.

Mr Hartnett made a series of submissions to me linked to the issues of voluntariness and the exercise of my discretion or discretions to exclude evidence. Included in what he put to me was: that I should find that the accused had for all relevant purposes exercised his right to remain silent; that I should find that the will of the accused had been overborne; that the Custody and Investigation provisions in s. 464A and following of the Crimes Act 1958 had been breached; that the exclusion in the definition of “investigating official” in s.464 had a very limited operation, and did not apply here; that s. 464J had enhanced the protections given by the Custody and Investigation provisions; that the means used to introduce ZZ into the cells contravened the relevant Regulations; that the undercover operation had not been properly authorised; that there would be unfairness to the accused in various respects if the evidence was admitted, including: that the police had taken advantage of a man of low IQ; that admission of the evidence would create unacceptable forensic disadvantages; that the police methods involved the obtaining of evidence at a price that was unacceptable having regard to prevailing community standards; and that the admissions made were or might have been unreliable.

What is the applicable law? The leading case is The Queen v Swaffield, Pavic v the Queen[1]. I will refer to it after this as Swaffield/Pavic. I set out, omitting references, the passages in Swaffield/Pavic[2] that have governed my approach:

50 “Four bases for the rejection of a statement by an accused person are to be discerned in decisions of this Court. The first lies in the fundamental requirement of the common law that a confessional statement must be voluntary, that is, “made in the exercise of a free choice to speak or be silent.” The will of the statement-maker must not have been overborne…… “
52 “The second basis is that it would be unfair to the accused to admit the statement. The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person. The third basis focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence…..The fourth basis focuses on the probative value of the statement, there being a power, usually referred to as a discretion, to reject evidence the prejudicial impact of which is greater than its probative value.”
91 “…In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations.”

[1](1997-8) CLR 159.

[2] at paras. [50], [52] and [91].

I will return to aspects of the propositions in those passages. But I first quote from Ridgeway v The Queen[3] . I do so inserting my own emphasis through the use of bold formatting:

“The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that the are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any know or suspected criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community. A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of the offence with which the accused has been charged.”

[3] (1994-1995) 184 CLR 19 at 37.

As to that passage from Ridgeway, I would make these comments. Although the circumstances there were different in a significant way, the focus there and in the instant case was on questionable police conduct. Subterfuge and deceit by the police will not always be inappropriate. Defining precise borderlines as to what is and is not acceptable is not practicable or desirable. Minimum police standards must be observed. All the circumstances must be considered.

As to the passages from Swaffield/Pavic, I would make these comments. To the four primary rejection bases is added a fifth “broad” discretion. It has been described in and after R vLewis[4] as an “overall” discretion. All the circumstances must be considered. One circumstance to have regard to is prevailing community standards. Another is the freedom to choose to speak or not speak to the police. Another is how the statement was elicited.
[4] [2000] 1 VR 290 at 312 [53].

Swaffield/Pavic has been reviewed in a number of later cases. They include the following which I list in alphabetical order for later ease of reference. R v Carter[5], R v Chimirri[6], R v Franklin[7], R v Ghiller[8], R v Heaney & Welsh[9], R v Juric[10], R v Lewis[11], R v Lewis[12], R v Roba[13], R v Tofilau[14], R v Vale[15]. In Tofilau, where the challenged confession was obtained by undercover police using the modus operandi that was very close to that used in the instant case, Osborn J made a detailed review of more than 40 cases, including those I have noted which followed Swaffield/Pavic.
[5] [2000] 1 VR 175.
[6] [2002] VSC 555 (Osborn J).
[7] [1998] VSC 217 (Vincent J).
[8] [2003] VSC 350 (Cummins J).
[9] [1998] 4 VR 636.
[10] [2002] 4 VR 411.
[11] Ruling, unreported, 15 June 1998, Teague J.
[12] [2000] 1 VR 290.
[13] (2000) 110 A Crim R 245 (Coldrey J).
[14] [2003] VSCA 188 (Osborn J).
[15] (2001) A Crim R 322.

Pursuant to Swaffield/Pavic, I have to make a decision as to voluntariness and to exercise discretions, including an overall discretion weighing a number of factors, but not on the basis that any particular factor is universally conclusive. They are not altogether readily susceptible to being compartmentalised. There are some factors, not applicable in the instant case. Those that are applicable include:

1.   Reliability. How reliable is the evidence?
2.   Right to silence. Has there been an exercise of the right to remain silent? Full or partial?
3.   Illegality/Impropriety. Was there any police action that was illegal or improper?
4.   Forensic unfairness. Is there a potential for forensic unfairness?
5.   Trickery. What was the level of deceit or other trickery involved?
6.   Standards. How does the conduct measure up against prevailing standards?
7.   Vulnerability. Was the accused peculiarly vulnerable?
8.   Eliciting. How were the challenged admissions elicited?
9.   Charge seriousness. How serious is the charged offence?
10. Comparative probative value. What is the relative significance of the challenged admissions weighed against other evidence

Mr Hartnett made a series of submissions to me which he said went to the issue of the voluntariness of the alleged admissions. His submissions went not only to the issue as familiarly stated. But I will first go to that. I refer again to what was said at paragraph 50 of Swaffield/Pavic. To be voluntarily made, the confessional statement must have been made in the exercise of a free choice to speak or be silent. There was here no duress or intimidation or persistent opportunity or sustained or undue insistence or pressure to talk about the killing of the deceased. There was no preceding inducement to so talk. The accused opened up the subject at a time and in a manner of his choosing. He continued to do so, even after being told that he did not have to do so.

Mr Hartnett put to me that the alleged admissions were not voluntary for reasons linked to there having been a failure to comply with the requirements of section 464 and following (Part III Division 1(30A) Custody and Investigation) of the Crimes Act 1958. The non-compliance, if I found that there had been such, was said also to have been a factor affecting the exercise of other discretions. I turn therefore to those provisions. I will not set out here the detail of the provisions, save as to the definition of “investigating official” in s.464. It reads:

“investigating official” means a member of the police force or a person appointed by or under an Act (other than a member or person who is engaged in covert investigations under the orders of a superior) whose functions or duties included functions or duties in respect of the prevention or investigation of offences.”

Mr Hartnett put to me a number of propositions. One was that the bracketed exemption should not be construed so as to extend to every questioning of a suspect by an undercover operative, the exemption only being applicable in circumstances where the police had occasion to ask questions for a particular purpose rather than the obtaining of admissions, such questions being required to obtain information as to the presence of a weapon or of another person or the like. A fallback submission was that in the instant case, the relevant members were not engaged under the orders of a superior. As to the last matter, I will return to the issue of the authorising of the overall operation. That is a separate matter from the observance of the requirements of the exemption in the definition. There is no basis for my finding that ZZ or YY were engaged otherwise than under the orders of XX, their superior. But I return to the central submission.

To uphold it, I would have to accept that the words should not be given their plain meaning. Mr Hartnett said that I ought to take that course for reasons in part going to the history of how the provisions came to be enacted. Mr Hartnett said, and I have accepted without checking, that there is no mention at all about covert operations in the report of the Coldrey Committee, or in the Second Reading Speech, or in any other speech in Parliament. He argued that the absence of any such reference supported the proposition that s.464and the following sections were meant to cover the field, and that there should not be an extension of the exemption to cover every undercover operation. He referred to two cases where there had been a particular purpose which the courts had nominated as a factor influencing the rejection of the application to exclude confessional material obtained covertly. In Lewis, reasons for questioning the accused included that the police had a particular concern to locate both a knife, and the person to whom the accused had said that he had given the knife. In Franklin, the police were concerned to obtain more information as to whether the deceased was alive and possibly in need of assistance.

I consider that little turns on the point Mr Hartnett made as to the absence of specific references to undercover operations. Such operations are neither new nor of little importance. The subjects of police undercover operations generally and the obtaining of confessions thereby have been scrutinised by the courts for a long time. The first case may well be the 1901 case of R v Todd[16], reviewed in Tofilau. The importance of the work of undercover police is spelt out in R v Hughes[17], in Jarvie v Magistrates’ Court at Brunswick[18], and in R v Davidson and Moyle; Ex parte Attorney-General (Q)[19].
[16](1901) 4 CCC 514.
[17][1986] 2 NZLR129 by Cooke P. at 141-2, and Richardson J at 146.
[18][1995] 1 VR 84 by Brooking J at 88.
[19] [1995] 2 Qd R 505 at 513-4 by Pincus JA.

The exemption provided in the definition is in plain language. That plain language ought to be given effect to unless there are very good reasons to the contrary. I am not satisfied that such reasons exist. In my assessment it is totally understandable that the definition was drawn as it was as part of an overall scheme that was intended to provide various checks and balances. In Lewis, at para. [57], the Court of Appeal briefly addressed this matter. First, it noted: ““investigating official” for the purposes of the subdivision does not include an “undercover operative”: s.464(1) of the Crimes Act. It went on to note at para. [58]: “It is in the nature of their job that police undercover operatives do not identify themselves to those to whom they are talking, nor give to them usual “caution”, a factor recognised by the court in Swaffield/Pavic. Provided that they do not abuse their position or exploit the vulnerability of the person in custody, the latter takes the risk that he may be talking to an informer.”

Mr Hartnett submitted that the alleged admissions are involuntary by way of the application of s.464J of the Crimes Act. He put it: that section 464J is not the subject of an exemption as to covert operations; that the section makes it clear that a person in the position that the accused was in has a right to remain silent; that as there is that right, the accused should have been apprised of it; that the section therefore adds to the right of a person to refuse to answer questions. The section provides:

464J. Right to remain silent etc. not affected
Nothing in this subdivision affects-
(a) the right of a person suspected of having committed an offence to refuse to answer questions or to participate in investigations except where required to do so by or under an Act of a Commonwealth Act; or
(b) the onus on the prosecution to establish the voluntariness of an admission or confession made by a person suspected of having committed an offence; or
(c) the discretion of a court to exclude unfairly obtained evidence; or
(d) the discretion of a court to exclude illegally or improperly obtained evidence.

I am unable to accept that there is some new or enhanced or special right created by the section. In its terms, s.464J is a section which preserves, not supplements. Only in a limited sense, namely that Parliament is recognising that which the courts have prescribed, can the section be seen to provide a form of elevated status to the protections referred to therein, including as to voluntariness. In Li[20], Coldrey J referred to the discretions “preserved” in s. 464J. In Juric, the Court of Appeal at para. [54] referred to the right to silence “which remained protected under Div 30A of Pt 3 of the Crimes Act 1958, and particularly s.464J.” S. 464J is part of the division governed by the definitions in s. 464. I am unable to accept that it is appropriate to construe s.464J in a way that disregards its context, as would be necessary in order to conclude that the exception in the definition of investigating official has no application.
[20] [1993] 2 VR 80 at 81.

Was there any infringement of the accused’s right to remain silent? As the Court of Appeal reinforced in Lewis, at para. [53], the exercise of the Swaffield/Pavic overall discretion is governed by a consideration of many factors, with no one being a universally conclusive factor which predetermines the exercise of the discretion. Nevertheless, in paras. [91] and [98] in Swaffield/Pavic, there is reference first and generally to recognising “an approach which looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned” and next and specifically as to Swaffield, to admissions “elicited by an undercover police officer, in clear breach of Swaffield’s right to choose whether or not to speak”.

Unlike Swaffield, who had unequivocally chosen to remain silent, the accused in the instant case co-operated with the police and was interviewed at length. During the police interview on 15 April 1999, he answered most questions. There is a transcript of the interview. It extends to 41 pages with 341 questions. At question 201 and for the next five questions, he gives a “No comment” answer, at a time when he yawns and shows signs of being tired. He resumes answering at Question 207. He gave further “No Comment” answers at Questions 241, 255, 271 and 311. Question 255 was about his boots. His answer was “No comment. What’s with the boots?”

Mr Hartnett put to me that, as the accused had given the police a clear indication of a desire to exercise his right to choose not to answer questions, any steps by the police to question him thereafter were, as with Swaffield, in clear breach of his right to choose whether or not to speak. I do not accept that. The instant case is a clear example of selective answering. As to that, I have noted what was said in Weissensteiner[21]. This was not a case where the accused had positively exercised his right to silence in a continuing way. Rather, he chose to respond selectively to questions. He showed a particular interest in the subject of boots when it was raised, in a way that tended to suggest that he was interested in using the occasion to find out what information the police had. Such a conclusion was supported by aspects of what the accused later said to ZZ and YY.
[21](1993) 178 CLR 217 by Brennan and Toohey JJ at 231.

During evidence on the voir dire, XX indicated that the Undercover Unit had adopted a policy of opting not to approve an application for the use of undercover operatives in circumstances where the suspect had given a no comment record of interview. In adopting that policy, it seems that the police have taken note of propositions spelt out in the reasons for the decision in Swaffield/Pavic, and in other cases either referred to in that decision or in which the decision has been applied. The police appear to have treated the position as being relatively black and white. That may be sensible given their concerns as to deployment of resources. I treat the legal position to be that in considering the exercise of discretions as to confessional material, a selective answering of questions is a consideration to be taken into account. It is not so obviously a factor to be allowed for in favour of exclusion as a continuing exercise of the right to choose not to answer questions by not answering any. It is not so obviously a factor to be allowed against exclusion as an election to answer all questions.

How were the answers of the accused elicited? Mr Hartnett did not make to me any submissions focusing on the subject of eliciting. Nevertheless, I was conscious of the importance attached to the subject in Swaffield/Pavic and in some of the later cases, including Lewis ruling[22], Lewis[23], Juric[24], and Chimirri. As I noted earlier, the police modus operandi contemplated that there would be a significant difference in the approach of each of ZZ and YY in their discussions with the accused. The effects of the difference in approach is evident in reviewing what was actually said. The discussion between the accused and YY is very much more structured than the discussions between the accused and ZZ. The discussions with ZZ are very much discussions as between equals. A very high percentage of the time is spent in mindless pub talk as to subjects like cars and women. References to the murder are volunteered by the accused, not the result of questioning by ZZ. The discussion with YY warranted and received greater scrutiny by me. YY was focused in a way that ran a greater risk of being seen to be manipulative. His more focused approach was seen as being necessary as part of the aim of increasing reliability by minimising exaggeration. While YY did probe in a way consistent with his role as a concerned potential employer, there was nothing in the nature of over-bearing cross-examination. I found the role of YY in his discussion with the accused to be within acceptable limits. I would note that it was not put to me, as a fallback position, that I could and should exercise my discretion to exclude the discussion with YY alone.
[22] unreported, 15 June 1998, Teague J.
[23] [2000] 1 VR 290.
[24] particularly at para. [60].

Was there any impropriety on the part of the police? That question calls first for a review of the position as to the introduction of ZZ into the police cell. Mr Hartnett submitted that I should find that there had been a breach of the Corrections (Police Gaols) Regulations 1995. Regulation 7 regulates visits to police gaols. Regulation 8 regulates communication with persons detained in police gaols. It was part of Mr Hartnett’s submission that it was a visit for the accused to be placed in the cell with ZZ, and that there had been a communication during the visit. The relevant provisions are:

Regulation 7(3) “With the permission of the member of the police force for the time being in charge of a police gaol, any of the following persons may enter the police gaol and visit the person detained…
(a) a relative of the person;
…
(d) any other person authorised to visit the police gaol by the member of the police force for the time being in charge of the police gaol.
Regulation 8(1): A person must not, without lawful authority, communicate or attempt to communicate with a person detained in a police gaol…

Mr Hartnett submitted that I should find that there had been a breach of the regulations because there was no evidence of any permission being given by a person with authority for the visit or the communication. I am not satisfied that that there was any breach of the regulations. There was no evidence suggestive of any breach. No aspect of the evidence on the voir dire warranted my treating the presumption of regularity as having been displaced.

I turn to the second aspect of alleged police impropriety, namely as to the claimed failure by the police to comply with the requirements as to Undercover Operations. Mr Hartnett submitted that I should find that there had been a breach of the Police Operating Procedures. The evidence on the voir dire as to the status and text of the Operating Procedures came out in a way that was scarcely satisfying. I eventually received as an exhibit a document of 5 pages, with a header: “Operating Procedures” and a footer: “Revised 29 November 1999”. There was a sub-heading: “5.1.7 Covert Investigations” and 12 numbered paragraphs under the sub-heading. 5.1.7.2 provides: “Before a covert investigation is conducted, obtain approval from the Covert Investigation Target Committee or Deputy Commissioner (Operations). 5.1.7.3 sets out matters as to the role, composition and functions of the Covert Investigation Target Committee. There are other provisions including as to: ”Circumstances Where the Committee Not Required”, “Responsibilities of Officer in Charge, Covert Unit”, ”Applications” “Assignment of Controllers” and “Special LEAP Access”. Under 5.1.7.3, it is provided: “A quorum of three members must always include the Officers in Charge, No. 5 Divisions and Covert Unit, and one other committee member.” Mr Hartnett submitted that the approval required for the investigation as to the accused had not been properly obtained as there was no evidence that there had been a meeting of the committee with a quorum of three members.

On the voir dire, certain copy documents were produced from the police file. There were papers as to two applications for assistance made by Smyth to XX relative to each of Stephen Morison and the accused. There were each dated 28/12/99. There was a form completed by hand. I set it out, formatting in bold what was printed and in italics what was added by hand:

Office Use Only
Approved by committee: Yes
Date: 27/4/01
Chairperson: Supt Blick
Members: Insp. Woolfe
Conditions imposed: Nil
P.J.Blick
P. J. BLICK Detective Superintendent
* Previously approved 2/2/00 – Op Hawksburn I078*

When XX gave evidence on the voir dire, he stated that the application as to the accused had been approved. He treated the approval provided by Superintendent Blick and Inspector Wolfe as proper authority for him to proceed. There was no focused exploration on the voir dire of the subject of the Committee’s quorum until it was raised by Mr Hartnett in his submissions. There was no exploration of the status of the Police Operating Procedures. In the circumstances, I accept that it is possible that there may have been a breach of the operating procedures. But I have positive evidence from XX that he authorised YY and ZZ to engage in the covert investigations, acting on the basis that the required approval had been obtained. In all the circumstances, if there was any breach, it was not so great as to make the conduct unacceptable. At most, the possibility of a breach was a factor to be taken into account in the exercise of the overall discretion, and the public policy discretion.

Another factor to which I must have regard is that of forensic disadvantage. Mr Hartnett argued that to allow the evidence of the covertly recorded conversations into evidence would in more than one respect create a substantial forensic disadvantage. He put to me that there would be prejudice and unfairness arising from the way that the admissions had been obtained. He argued that there would be an effective reversal of the onus of proof, and an opening up to the jury of the accused’s criminal past, and of other unfavourable matters, such as use of coarse language and boasting and slighting references to women. As to the first, he argued that what would occur would be that the prosecution would be putting the admissions as a package to be assessed accordingly. It would then be for the accused to seek to establish that what was said was unreliable. Effectively, the onus would be on the accused to show that he was not speaking from a position of intimate knowledge of what occurred, but was fabricating matters or repeating what was in the public arena.

There is no doubt that to allow the conversations to be led would create problems for the accused. But the problems are those that face any accused who has chosen to speak to another person of criminal activity. The evidence of what was said, as with other probative evidence, stands to be evaluated. Any accused who is faced with evidence of strong probative value must make difficult decisions. I do not see that the instant case represents a position significantly different from like cases, as where an accused has given a story in a formal record of interview which, seen in the light of other evidence, contains matters that he would rather not have said.

The conversations with ZZ and YY, particularly with ZZ, are very much in the language of criminals. The police are denigrated. Women are spoken of disrespectfully. There is much boasting of criminal activity. I accept that there is a potential for prejudice that ought to be minimised. I can exercise the probative/prejudice discretion to that end, as to passages of concern. Moreover, it is not as if the accused (or his counsel) does not have some quite powerful countering weapons. One is to require that the alleged admissions be put into their full context. That can effectively mean swamping some potentially relevant material with much that is irrelevant. Another is the right to cross-examine witnesses, including as to matters which emphasise the exaggerations and other matters potentially diminishing probative value. Further, I can warn the jury as to the need to use potentially prejudicial evidence, such as evidence of past criminal conduct, only in an appropriate way. Recent research indicates that, as to such matters, juries do accept what they are told.

What is the focus of a concern as to reliability? There are a number of aspects to the subject. One is as to how strong is the concern of the courts as to reliability. Another is as to what is the test of reliability to be applied. There is then the matter of determining the factors that should influence the application of the test in the instant case. As to the first aspect, it is understandably very clear that the courts are very concerned to test the reliability of an alleged confession or alleged admissions. The development in the 18^th Century of the “confession rule” for excluding a confession not voluntarily made because of the court’s concern as to reliability is analysed in Langbein: The Origins of Adversary Criminal Trial[25]. Dawson J in Cleland v The Queen[26] refers to the voluntariness exclusionary basis having been founded on concerns as to unreliability. In Swaffield/Pavic, Toohey, Gaudron and Gummow JJ make several references to the subject of reliability[27]. Kirby J[28] examines the position in more depth. He refers to six cases which deal with the importance of the reliability of confessional evidence. One is Cleland. The others are R v Lee[29], R v Ireland[30], Bunning v Cross[31], Van der Meer[32] and R v Davidson and Moyle; Ex parte Attorney-General (Q)[33].
[25] Oxford University Press, 2003 at 218f.
[26] (1982) 151 CLR 1.
[27] at paras.[53], [54] and [78].
[28] at paras.[124] to [127].
[29] (1950) 82 CLR 133.
[30](1970) 126 CLR 321.
[31](1978) 141 CLR 54.
[32](1988) 2 ALJR 656.
[33] [1995] 2 Qd R 505.

What is the test of reliability? Neither Mr Kayser nor Mr Hartnett referred me to any authorities on the subject. Mr Hartnett submitted that a possibility of unreliability would suffice, so that the alleged admissions should be excluded if they may be unreliable. Mr Kayser argued that the test was whether the admissions were of sufficient weight on which the jury could properly act. In Swaffield/Pavic, Kirby J preceded paras [124] to [127] with the heading: “The reliability test”. The text that follows did not address the subject of what the test is. I was not able to find any case in which that subject is addressed in any depth in the context of confessional evidence. In Swaffield/Pavic, Brennan CJ[34] noted that the circumstances in which the Swaffield admissions were made threw no doubt on their reliability. In Davidson and Moyle, where there was an issue as to reliability, Pincus and Davies JJA, referred to the very high reliability of the confessional evidence in that case. Regrettably no test is stated, and the factors governing the assessment of reliability are only briefly referred to. Pincus JA[35] referred to first the detail of the account of the whole circumstances, then the giving of an explanation for earlier lies, and then expressions of contrition and relief, but without elaboration.
[34] at [31].
[35] at 510.

I ultimately found assistance in an area which requires some adjustment in analogising. I refer to cases dealing with the reliability of confessional evidence sought to be led from an accused person with a mental disorder. The cases are R v Sinclair[36], R v Starecki[37], and R v Pfitzner[38]. What was said in Sinclair was guarded in many respects. There appears to be more than the usual reluctance to provide bright lines. What is clear is that the mere possibility that confessions were the result of a disordered mental condition is not sufficient to exclude them from evidence. The Full Court in Starecki[39] laid stress on the circumstance that a great deal of what the confessionalist said was borne out by other independent testimony which gave a strong indication that he was speaking from memory and not from fantasy. The importance of looking for confirmation from independent sources is referred to in Sinclair. Dixon J said [40]: “It happens that external facts independently proved do supply many reasons for supposing that the confessional statement made by Boyd Sinclair were substantially correct.”
[36](1946) 73 CLR 316.
[37] [1960] VR 141.
[38](1996) 85 A Crim R 120.
[39] at 152.
[40] at 338.

In Pfitzner, Doyle CJ, after a very close review of Sinclair, and a consideration of other cases. posed a test for exclusion. He said[41] that the test was “ based upon affirmative satisfaction that the admissions are inherently unreliable as distinct from possibly unreliable”. He prefaced that conclusion with these remarks[42]:

“In my opinion it is clear enough from this that the presence of a mental disorder which makes it possible that a confession is unreliable, in the sense that the mental disorder is such that one cannot accept it as intrinsically likely to be true, is not sufficient to render a confession inadmissible. That is a matter which goes to weight, and obviously involves a consideration of the terms of the confession and, most importantly, the extent to which the contents of the confession are confirmed by independent proof of the events to which it relates.
At the other extreme a person may be incapable of understanding questions, and of making rational answers to them. The judgments suggest, without it being clear, that a confession will not be excluded unless the judge is satisfied, having heard evidence, that the mental condition of the person was such that no reliance could be placed upon the admissions made. In expressing the matter this way I have deliberately avoided any question of onus, the correct placing of which does not arise her.
It also seems to me that the tenor of the judgments is that it will only be in an exceptional case that the confessional statement will be excluded, and that ordinarily one would expect issues of unreliability to be dealt with by the jury in deciding the weight to be given to the confession, rather than by the judge in making a decision to exclude the confession.”

[41] at 136.

[42] at 135-6.

My focus is not on reliability potentially arising not from mental disorder, but from a situation where the character of the context and the roles of the participants created a different kind of potential for unreliability. Notwithstanding the different circumstances, I propose to proceed upon the basis that a test linked to affirmative satisfaction that the admissions are inherently unreliable is to be preferred to a test determined by mere possibility. As to the factors to be taken into account in assessing reliability, I rely heavily on matters raised in the three cases.

There could be a number of factors of varying importance affecting an assessment of the reliability. Most are a form of assessment of the relative weight or probative value attaching to the alleged admissions. In the instant case, I assessed that there were four particularly salient factors. Was there substantial consistency as between the detail of the alleged admissions on the one hand and, on the other hand, the detail of external facts independently capable of being proved? What was the relative weight of any alternative position advanced by the accused? How difficult is it to distinguish matters in the alleged admissions that are or may be lies and exaggerations from matters that are not? How difficult is it distinguish matters in the alleged admissions that were or may have been in the public arena from matters that were not?

I concluded that there was substantial consistency between matters stated by the accused relative to the killing and matters contained in the statement of other witnesses proposed to be called by the Prosecution. Rather than go through matters by subject matter (e.g. nature of weapons used, nature of injuries inflicted, transport and disposal of clothes) and by witness, I refer to “Annexure B” to these reasons. It is a table which formed part of the material that I provided to the jury before it commenced its deliberations. Column 1 lists subject mater. The next four columns are page references to the transcript of conversations with ZZ. The next column lists the page references relative to the conversation with YY. The last four columns list the names of witnesses (or phone records) whose evidence related to that subject matter. The level of consistency was extremely high.

Nevertheless, I accepted what was put to me by Mr Hartnett, that there were other matters to be taken into account. They, individually and in combination, had the effect of mitigating somewhat my assessment of very high reliability. One was the matter of the relative weight of the alternative position advanced by the accused. As noted earlier, the accused had been interviewed by the police two weeks after the deceased was killed. He had then told them that he was at home in bed with his wife at the time that the police put to him that the killing took place. His wife had given a statement confirming that that was so. What would then have been a very strong alternative scenario was weakened by a factor, which the accused had been ready to volunteer to ZZ at an early stage. It was that the accused had told ZZ that his wife had “stuck fat” over the murder that he had got away with. He had later given more detail of how his wife had supported him with an alibi. I nonetheless made the assessment that the alternative position was moderately strong. Mr Kayser argued that the position was materially weakened by the position that the accused adopted when formally interviewed by the police in 2001. That was when the accused was confronted by the police with the circumstance that his conversations with ZZ and YY had been with undercover policemen and had been recorded. When asked then how he explained what he had said to ZZ and YY, he said that he had told them a bit of shit, that he had told them things to impress them, that he had made up the whole lot, that everything that he told them was a lie, that he did not know how the victim had been killed, that he learned from the newspapers that it was a brutal murder, and that the victim had been bashed pretty bad, that that was all he knew, that as to the stabbing, he had made that up, and that he was at home at the time of the killing. Mr Kayser submitted, and Mr Hartnett strongly contested, that the accused’s reaction ought to be seen as a strong additional indicator of the reliability of the admissions made in the conversations with ZZ and YY. On that issue, my assessment was more in line with what was put to me by Mr Hartnett. I was not disposed to draw any strong adverse inference from the reaction.

The second matter was that of the lies and exaggerations of the accused. There were clearly many lies and exaggerations in what the accused had said to ZZ. There were possibly some in what the accused had said to YY. The matters might extend from a mild boast to a deliberate gross fabrication. Even the accused might have difficulty characterising where the truth as to many such matters really lay. Despite the many exaggerations, I did not conclude that the accused was necessarily a man who was prone to lie and exaggerate. The exaggerations could well have been a product of the environment in which the two men talked. The talk was in venues like a hotel bar. ZZ listened to what the accused said without challenge. The discussion was predicated upon the assumption that criminal conduct was acceptable. The discussions were of a character such as might be expected in a criminal subculture. As to that, I have had regard to what was said by Kirby J in Swaffield/Pavic at paragraph 126 as to the need to make allowances for false boasts of criminal behaviour and bravado. I did not perceive that a juror would have any great difficulty is distinguishing, in the great majority of instances, between the two options. On the one hand, there were what were, or were likely to be, lies and exaggerations. On the other hand, there were what were potentially reliable admissions as to aspects of the Macumber killing. The formatting changes made by me to the text in Appendix A reflect my broad assessment of which matters lay in which category.

The final matter concerns the potential for apparent reliability based on consistency with independent evidence being undermined by the circumstance that there was some significant material in the public arena. I have used “public arena” to embrace not only matters known through the usual organs of the media, but also matters known or likely to be known to persons closer to the police investigations. It would not be appropriate to treat what the accused said as being an admission against interest if the information could have come to the accused in some way other that as a participant in the crime. Mr Hartnett cross-examined Smyth at length as to what items of information had been made public. I concluded that there was only a limited potential for the accused to have acquired information in that way as to the matters of detail of which he spoke to ZZ and YY. I have now completed my review of matters going to reliability in the instant case. Despite the mitigating considerations, I was well satisfied that the alleged admissions were not inherently unreliable.

In Swaffield/Pavic, the court called for an assessment of whether the evidence could be seen to have been obtained at a price which is unacceptable having regard to prevailing community standards. That involves a consideration of a number of matters, some of which have already been specifically addressed. The eliciting was not exceptional. There was no, or at least no significant, impropriety on the part of the police. No criminal activity was engaged in, although much was talked about. There was deception on the part of the police, but it was within the bounds treated by past decisions as appropriate. The accused had not chosen to exercise on a continuing basis his right to choose not to answer questions, so there was no clear disregard of that right.

There are other relevant considerations to which I will but briefly turn, as I have not considered them to be as relatively important as other matters that Mr Hartnett focused on, and that I have addressed. One is the matter of vulnerability. I have noted what was said by Kirby J in Swaffield/Pavic[43] as to the risk of disadvantage to the intellectually limited and the under-educated. In the instant case, I had the evidence of Elizabeth Warren which indicated that the accused was intellectually limited to a degree, added to which were other problems including a relatively high dependence on others. In my assessment, the level of vulnerability was not extreme or towards the higher levels of the range. Another consideration is as to the comparative weight of the alleged admissions relative to other evidence. As to that, it is clear that, with the alleged admissions the case is strong, and without them it is very weak. Another consideration is as to the seriousness of the offence, and it goes without saying that it is of the highest level.
[43] 210 at [126].

I was satisfied that the alleged admissions were voluntarily made, and that there was no basis for exercising any discretion to exclude the whole of the conversations. That meant inviting further consideration of the making of particular excisions on discretionary grounds.

Annexure A

28/8/01 – ZZ to LF
725	We need to get the nod by the boss
726	We can get clean guns
737	Anyone who does not measure up will get the same treatment as the man who lagged me
759	We burn everything.
761	Everyone in the crew gets a bit of the proceeds of all jobs.
776/7	We do not want junkies in the crew or the boss would crack.
28/8/01 – LF to ZZ
708	The police were trying to pinch me on an armed robbery
720	They’re trying to pinch me for a stick-up. I did about ten in the matter of a month
721	I was sitting in the cell one night. A man spoke of getting pinched for a stick-up. I had done it. He got fourteen months for it.
741	I’ve already taken three cunts down in my life. Got away with it
741	I even got away with a murder that me wife thinks I done, but no-one knows that I done it
742	My missus stuck fat by me by this last time
742	This guy got bashed. I didn’t use a piece. I caved his head in.
743	Took him to hospital. He didn’t make it.
757	I’ll let you in on this little murder I did. I went full out, balaclava, double overalls. The night before the cunt died I’d struck about 22,000.
758	He had to go out. He goes, I know who you are. I had a balaclava on. I put a knife straight through his throat. He kept kicking. I put another one straight through his heart.
758/9	He was 35, 38, my age group.
759	This investigation went for about 12 months. They had nothing on me
759	I was fully cleaned. I went to the tip…No-one knew where it went
767	I met this gay bloke. At his joint, I struck his key card. It had something like 26, 27 grand. I cleaned him out, because I had his pin number
772	I went out and bought a 352 Fairlane in excellent condition
780/1	I can get pieces. I’ve been in it for the last 20 years. I don’t do jobs without one. For the last 20 years, I’ve had a piece on the side of my leg
30/8/01 – LF to ZZ
790	I have done heaps of stick-ups in my time. The next one will cost me 15 years
791/2	My missus has stuck by me. I took a man down and she stuck fat by me. She knew I wasn’t home.
806	My brother-in-law was saying all the wrong things. He got a belting for it.
809	I had a hot car
809	They reckon he died a painful death. I know he died a painful death.
810/1	There was blood on the floorboards from the blood on the boot. I got rid of the boots. I buried them. I bought new boots the day after, through my brother-in-law where I work. An invoice shows I’d had 3 pairs in less than 2 months. They wanted to know where the last pair of boots had gone. I said the tip.
812	My brother-in-law was robbing this bloke too. I thought I would do him over completely. I got about 3,500. I had to take him down because he knew who I was.
5/9/01 – LF to ZZ
838	I dumped many cars down a river. No-one knew until I dumped the last one. They pulled out 8 or 9.
841	A family friend is a gunsmith who can fix up unmarked pieces
843/4	I burnt everything. The clothes were burnt, the boots went to the tip.
845	I threw the boots in a bin.
12/9/01 – ZZ to LF
935>8		YY the boss wants to talk to you. I am sure he’s going to offer you a spot to join up. I said to him that I trust you, that you are loyal
938		Just tell YY the truth. Don’t make it up to sound better.
946		I told YY what you told me about the other thing. That’s OK.
947		YY would have checked up on your past.
948		Don’t be nervous. He has got some good paying jobs for you.
955		YY has checked you out properly. He will ask you about it. Tell him the truth. Don’t make it sound good to impress.
956		YY will know if you are bull-shitting. He is keen to get you on board.
12/9/01 – YY to LF
850		ZZ has told me good things about you. He reckons I should trust you. Trust has to be earned
852		You do not have to be part of this. You can go back to being on your own
854/5		The opportunity to make a lot of money is there. I have to be very careful about who I bring on board. What do you have to offer me?
856		ZZ mentioned what you have done before.
857/8		You might have been just big-noting and gobbing off to impress ZZ. The bloke that lagged ZZ is a problem for me
860		I am told you are loyal and staunch and have dash. Tell me if you are exaggerating to impress me.
872/3		We have to worry as to whether there are any loose ends. I am careful This room costs $2500 a night. Getting information from the police costs less.
12/9/01 – LF to YY
854		I have done a fair few stick-ups on my own
856		I have done 14 months jail here, six months there.
857		I have gone the whole way before and got away with it.
858		My wife gave me an alibi, saying that I was in bed with her that night.
861		I gave the police my story when I was interviewed. I did not say one thing wrong.
863>5		The victim had won cash as a gambler. I had sold the victim a stolen video and lawnmower through my brother-in-law. He trusted my brother-in-law, who took money out of his wallet. I knew about it. I visited the place. I decided to take the whole lot. It was over about 6 or 7 grand. He opened the door. I asked him where the cash is. He said: I know your voice. I whacked him with a steel bar in the head. He tried to crawl out the door. I dragged him back in.
874		The police had no motive as I was earning $800 a week
876		I must have stepped in blood and left a blood print. I got rid of the boots. I had an old pair of boots in the shed. I bought a new pair that week through the company. I disposed of the boots I had worn. There was an only boot from when I had to jump a fence.
878		The boots I wore and got rid of were from when my father and I worked with the Met.
879		In 2 days, the boots were got rid of at a tip nearby under rubble. I was making sure that there were no loose ends. The clothing I wore has been buried.
886>8		I got about 4000 when I done the bloke. It happened around 2 to 3 a.m. I wore gloves.
889		My clothes went to the tip with concrete. I was driving a tipper full of broken up concrete
897/8		I stole a car. The car was about 20 minutes away from my home. I rode a pushbike to get to the car. I walked back home after leaving it parked. It was all in the same general area.
902		I whacked him with a steel bar and I stabbed him. The knife was his own. Once he said he knew my voice, there was no way he was going to live to tell the story.
903/4		I knocked on the door. He let me in. When he unlatched the door, I forced it in. He had a baseball bat. He went for it. I whacked him with the crowbar until he did not move. I got rid of all the evidence including the crowbar. I left the knife behind because I was gloved up. He had the knife as an ornament. It was like a bayonet.
913		I whacked him on the side of his hip with the bar. $4000 in cash was in one of his drawers.
914/5		I spend my cash on cars and boats and holidays. I have been with my missus to Queensland – the Whitsundays.
919		I used the money on rent and to fix the car. This happened the night before Easter.
921>3		I got the car from a driveway in Noble Park. A Ford Laser. It was easy for me to push out and start. The car had no headrest, just shoulder type seats.
926		The first blow was to the head.
927		There was a baseball bat. He was walking to get it. I got to it first. I struck a number of blows.

Annexure B

Tab 1	Tab 2	Tab 3	Tab 4	Tab 5
Event Day and time	41, 66, 73	Lang, Lane	Keble, Atkinson	Neon, Phone records	Smyth
Victim Age	50	80
Baseball bat	57, 81
Crawled out, dragged in	30	18, 66	Jones
Crowbar	18, 56, 58, 67	Ranson	Evans	Jones
Hit	34	30	6	18, 54, 67, 80	Smyth
Knife to throat and heart	50	Ranson
Knew voice of	49	30	19, 57
Opening door	19, 57
Stabbed knife/bayonet	55, 56, 60, 82	Ranson	Evans	Jones
To hospital	34, 38
Accused Another man’s stick-up	14	Smyth
Boots blood	27	30, 65	Newcombe	Evans	Jones
Boots buying	28	30, 31	G Morison	Leete
Boots disposal	27, 28	11,12	32, 33, 34	Smyth
Boots Met	32	Averkiou	Hawkins	D Favata
Brother-in-law	23, 29	16, 17, 19, 20, 61	S Morison	F Fallon
Buying Fairlane	64	Smyth
Car stealing and disposal	26	16, 49, 51, 64, 75, 76, 77	Banh, Munding	Colley, Roche	Wanstall
Disposal of items	51	26	10,11,12	33, 34, 43, 44, 47	G Morison	Asterino	Smyth
Dumping of cars	5
Gay bloke.	58	Smyth
Gloves	42, 48, 59	Rolfe	Edwards
Guns Use and access	19, 72	8	Smyth
Holidays	65	Smyth
Killed a man	33, 48	8, 25	6	11, 17
Money	49,	29	17, 23, 28, 40, 67, 68, 72	S Morison	Bye	Huntington
Other stick-ups	3	7	8	Smyth
Wife stuck fat	33	8, 9	12, 28

[2004] VSC 7

23 January 2004