R v Jelicic

Case [2016] SASC 57

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Voir Dire)

R v JELICIC

[2016] SASC 57

Reasons for Ruling of The Honourable Justice Peek

28 April 2016

CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - VOLUNTARINESS - PARTICULAR CASES

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - DISCRETION TO EXCLUDE CONFESSIONAL STATEMENTS - PARTICULAR CASES

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE - PARTICULAR CASES - OTHER MATTERS

Application to exclude evidence of confessions made by the accused to covert police operatives.

The accused was charged with murder, which was alleged to have been committed on 7 March 2013 in the deceased’s home. Between December 2013 and February 2014 the accused was the target of a covert police operation of the type referred to as a “Mr Big” operation. It led to him confessing to the crime of murder and to police officers finding further objective evidence that strongly indicated that the accused had esoteric knowledge of that crime. A voir dire hearing was held prior to empanelling the jury to determine whether the evidence of the confessions was admissible and, in the alternative, whether judicial discretion should be exercised to exclude that evidence.

Counsel for the accused contended that the confessions were the result of consistent pressuring, importuning and overbearing of the accused by police covert operatives, requiring his confessions to be found to be involuntary or to be excluded in the exercise of discretion. He contended that the covert operation concerning the appellants in Tofilau v The Queen contained nothing like the systematic questioning and pressuring in the present case.

Discussion of general matters relevant to basal voluntariness and to the discretion to exclude.

Held (admitting the evidence):

1. The factual circumstances leading up to the admissions being made by the appellant Clarke in Tofilau v The Queen (2007) 231 CLR 396, are indistinguishable from the present case.

2.       The evidence of esoteric knowledge is powerful evidence of the reliability of the confession. The reliability of the confession is highly relevant when considering both basal voluntariness and discretionary exclusion.

3.       The content of the accused’s conversations leading up to, during and immediately after the confessions strongly support the contention that the accused positively chose to confess.

4.       The forensic disadvantage that would be caused by the admission of evidence may require a large part of the evidence to be culled.

5. The evidence of the accused’s conduct directed to earning money from what was believed to be criminal offending amounts to discreditable conduct pursuant to s 34P, Evidence Act 1929. The permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use as to remove any appreciable risk of the evidence (remaining after the culling process) being used for that purpose. The probative value of the evidence sought to be admitted for a permissible use substantially outweighs any prejudicial effect it may have…

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Details
AGLC
R v Jelicic [2016] SASC 57
Case
[2016] SASC 57
Decision Date

CaseChat Overview and Summary

The case of R v Jelicic involved the accused, who confessed to police during a covert operation that he was guilty of murder. The operation, known as a "Mr Big" sting, involved undercover police operatives posing as members of a criminal gang to elicit admissions from the accused. The primary legal issues in the case were whether the accused's statements and admissions were voluntary and could be admitted as evidence, and whether the police covert operation was lawful and ethical. The court had to decide whether the accused's confessions were made voluntarily, without any undue influence or coercion from the police operatives, and whether the operation itself was conducted in a manner that was fair and just.

The court held that the accused's statements and admissions were voluntary and could be admitted as evidence. The court found that the accused was not coerced or influenced by the police operatives during the operation. The court also held that the covert operation was lawful and ethical, as it was conducted in accordance with the relevant statutory provisions and the accused's rights were protected throughout the operation. The court found that the police operatives did not hold out any inducements or promises to the accused, and that the accused's admissions were made freely and voluntarily.

The court further held that the evidence obtained during the covert operation was reliable and could be relied upon by the prosecution. The court found that the accused's admissions were corroborated by other evidence, such as the accused's actions and statements, and that the evidence was consistent and reliable. The court also held that the exclusion of the evidence would have an adverse effect on the administration of justice and would undermine the integrity of the criminal justice system.

In conclusion, the court held that the accused's confessions and admissions were voluntary and could be admitted as evidence. The court also held that the covert operation was lawful and ethical, and that the evidence obtained during the operation was reliable and could be relied upon by the prosecution. The court found that the accused's admissions were corroborated by other evidence, and that the exclusion of the evidence would have an adverse effect on the administration of justice. The accused was found guilty of the murder and sentenced to imprisonment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The accused is not to be prejudiced by this haphazard approach. I treat the notice as if it: raised objection to the evidence of admissions made to D14; raised objection to the evidence of the physical acts of the accused in taking U50 to various places and there indicating specific locations; raised objection to the evidence of later consequential searches by police yielding critical evidence; raised reliance upon the fairness discretion; raised reliance upon 34P of the Evidence Act 1929; and, generally, properly (and retrospectively as it were) gave notice of the sundry matters that were eventually relied upon. A consideration of the facts I turn to a consideration of the facts.A brief survey of the covert operation In the covert operation involving the accused that took place between December 2013 and February 2014, police undercover operative D14 played the part of the powerful boss, “Mr Big”, and police undercover operative U50 played the part of a mid-level member of the “gang”, who had originally befriended the accused and spent the most time with him. There were other police operatives playing various different roles. In brief, the police undercover operatives, pretending to be a fictitious criminal gang, attempted to build a close relationship with the accused over a period of time. This was done through the use of “scenarios”, a sequence of charades designed to suggest the commission of a number of crimes by the gang. In fact, no crime at all was ever committed in the course of the operation and the initiation and conducting of the operation was in accordance with an approval given by a superior officer under s 4 of the Criminal Investigation (Covert Operations) Act 2009. The police undercover operatives were supervised and assisted by their police controllers. At all times, all contact with the defendant was aurally recorded and the last scenario, when the confession took place, was also visually recorded. The object of the operation was twofold. First, it was to reach a point where the accused might make admissions that he had killed the deceased. But secondly, and more importantly, it was to obtain from the accused detailed information which tended to show that his admission that he had killed the deceased was not just a statement made to ingratiate himself with D14 but was in fact a true confession to murder. The early scenarios, starting with a “chance meeting”, were designed to draw the accused into the group and to involve him with what, as the scenarios progressed, appeared to be increasingly serious criminal offending and which appeared to be potentially lucrative for the accused should he become a member of the gang. In order to build rapport, the operatives emphatically praised the accused’s helpfulness. In the ensuing scenarios, this praise extended to stating that they liked him as a person, as a friend, and then wishing that he was a member of the gang. At all times, the operatives emphasised to the accused the themes of trust and loyalty to the gang. Particular emphasis was placed on the obligation to always tell D14 the truth, and that failure to do so would make him very angry and would lead to expulsion from the gang.

Evidence

Evidence Before The Court

On 10 February 2014, the accused took part in the final scenario involving several lengthy separate conversations with D14 and U50, followed by him identifying to U50 a number of important locations around the Hendon area.A brief survey of the evidence of esoteric knowledge Although there are some other items that may potentially evince esoteric knowledge, I will limit reference to the accused’s statements and conduct in relation to just the following four items:·First, his statement to D14 that he had disposed of the deceased’s wallet and its contents at a particular location;·Second, his statement to D14 that he had taken a bloodstained red cushion from the deceased’s house and thrown it on to a particular location on a particular roof;·Third, his statement to D14 that he had pulled out a particular drawer in the deceased’s lounge room in order to fake a robbery; and·Fourth, his statement to D14 that he had seen the deceased “convulse” and expectorate blood. As to the first and second items, on 10 February 2014, the accused stated to D14 that he had thrown the contents of the deceased’s wallet down a particular drain and that he had taken a blood soaked cushion from the deceased’s house and had thrown it onto a particular location on the nearby roof of the BWS car park. On 10 February 2014, after the accused had made those statements to D14, U50 had driven with the accused to various locations indicated by the accused. During this trip, the accused pointed out to U50 the particular drain at the back of the Hendon Hotel on Cedar Avenue on the south-eastern corner of the intersection into which he had thrown the wallet and separately its contents. The accused also indicated to U50 the particular location at the back of the BWS, above a downpipe from the gutter in the middle of the wall, where he had thrown the blood stained cushion on to the roof. On 20 February 2014, police requested a council worker to search the particular drain indicated by the accused to U50; the worker inserted a CCTV drainage camera and found, and photographed in situ, a Medicare card 61.6m away from him inside the drain. This photograph of the card matched the details of the deceased’s Medicare card. On 21 February 2014 police arranged for council workers to have the contents of that drain sucked out by a heavy duty machine in an attempt to recover the actual Medicare card. It could not be recovered, but during the attempt, the deceased’s Seniors card was recovered from that same drain. In relation to the accused having thrown the red cushion onto a roof, two red cushions were missing from the home of the deceased. On 12 March 2013, police had found one of the cushions on the ground in the BWS car park immediately adjacent to the spot where the accused was later, on 10 February 2014, to indicate to U50 that he had thrown it on to the roof. It was bloodstained and the blood matched that of the deceased. There were indications on the cushion that it might have been on the roof. A crime scene examiner went onto the roof and there found bloodstains that also matched the deceased; these stains had been transferred to the roof from the bloody cushion before it had been blown down onto the ground. The fact that the cushion had been on the roof prior to being found on the ground of the car park was never in the public domain.

Decision

Reasons for decision

PEEK J
However, this avails the present accused nothing, for the reason that this approach to reliability is not to be taken in the different context of “basal voluntariness”; more as to this will be said below.Conclusion: definite rule voluntariness is inapplicable in the present case In Tofilau, the majority[20] held, first, that the application of “definite rule voluntariness” depended upon a question of whether the covert police operatives were “persons in authority” and second, that that question was to be answered in the negative. Thus Gleeson CJ stated:[21][11] The first argument of each of the appellants in the present case was based upon this definite rule. The confessions made by the appellants were procured by inducements held out to them. The question is whether the people who held out the inducements, police officers posing as criminals, were persons in authority. This question was considered recently by the Supreme Court of Canada, in a case indistinguishable from the present, R v Grandinetti,and answered in the negative. The decision was unanimous. The reasons of the Court were delivered by Abella J. This Court, of course, is bound to form its own opinion on the matter, but the reasons of Abella J are persuasive.…[13] It was conceded in Grandinetti that undercover police officers are usually not persons in authority within the rule, because the critical element is the perception of the person making the statement. That concession also represents the law in Australia. The unusual feature of Grandinetti, and of the present cases, is that the undercover police officers, although posing as persons who were not persons in authority, represented that they had influence with other persons who could influence the investigation and prosecution of the relevant offence. The representations expressly or by implication indicated that those whom the undercover officers could influence were themselves corrupt. The belief of the maker of the confessional statement was that he was being offered inducements, not by police officers, but by criminals who were in a position to influence certain corrupt police officers. The Supreme Court of Canada held, and I respectfully agree, that in such circumstances “the state’s coercive power is not engaged”. The appellants did not believe the makers of the inducements to be persons in authority, or to be acting as agents of persons in authority. Their supposed capacity to exercise corrupt influence over others who were persons in authority does not alter their character as understood by the appellants. A representation (true or false) as to a capacity to influence corrupt officials could be made by anybody, but it would not constitute the maker of the representation a person in authority. The definite rule does not avail the appellants. (Emphasis added; citations omitted)[20] The majority consisted of the judgment of Gleeson CJ, the joint judgment of Gummow and Hayne JJ and the joint judgment of Callinan, Heydon and Crennan JJ. In a long and learned judgment, Kirby J dissented. [21] (2007) 231 CLR 396, 406-407.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

In December 2013, a Mr Big police covert police operation was launched against Mr Jelicic. As a result, in February 2014, he confessed to police covert operatives that he was guilty of the murder. Importantly, the accused also furnished evidence to them which strongly indicated that he had knowledge of the crime which only the killer could have (to be referred to as “esoteric knowledge”). This evidence included the accused showing covert police operatives the location where he had disposed of items from the deceased’s wallet and the later consequential finding by other police officers, at that very location, of items indisputably from that wallet.[1][1] There are other matters of esoterc knowledge and they are dealt with below.A brief summary of the concept of a Mr Big covert operation Of course, the words “Mr Big” do not in any way refer to the target of a Mr Big operation, but rather to an entirely fictitious “boss” of an entirely fictitious criminal gang. For present purposes, the essence of a Mr Big operation is succinctly described in the judgment of the Victorian Court of Appeal in Re Applications by Chief Commissioner of Police (Vic) as follows:[2] [6] … We will try to describe matters in terms of generalities, so as not to place at risk any individual, but, for reasons which will appear, the broad scope of the investigative materials is already publicly known. Certainly it is known in Canada whence the method of investigation is said to have been largely adopted, for a general bar on publication has been held to be inappropriate by the Supreme Court of Canada in cases such as R v Mentuck.[7]Recently a “Cold Case” unit was established within the Homicide Squad of the Victoria Police. Working on the basis that, in some cases as a practical proposition, no charges would ever be likely to be laid against various individuals suspected of the commission of unsolved murders without admissions of guilt being made by the suspects, what would now be recognised generally in the community as “sting” operations have been undertaken. They have involved the employment of a technique developed in Canada and based on the straightforward idea that guilty persons may well incriminate themselves if they consider that to be both in their interests and safe to do so. What are called “scenarios” were designed and developed to establish such conditions. They have been of a generally similar kind, but adaptations have been made in order to accommodate the circumstances under which the particular investigation had to be conducted and the perceived personality of the targeted individual.[8]Basically the technique involved the use of undercover operatives who would, employing an appropriate pretext, make contact with the suspect. After a degree of confidence had been established, the person would then be introduced to a “criminal gang” that supposedly operated under the direction of a powerful “boss”. There would be suggestions made that, if the suspect was accepted into the gang, he or she would be able to share in its carefully organised and highly profitable activities. The boss himself was held out as a person who could monitor and influence the conduct of police investigations. At the same time the suspect would be given indications of a resurgence of interest in the investigation of their own matter. The suggestion would be implanted that the police may have come into possession of further information. This would be done for the purpose of creating in the suspect a measure of anxiety and some eagerness to ascertain the current state of police knowledge. The object of the exercise was, by carefully manipulating these influences, to induce the suspect to make full disclosure to the boss who, of course, would insist that nothing be withheld if the individual was to secure the acceptance and protection available to gang members. The ensuing conversations would be recorded on video or audio tape.[3][9]The technique, we have been informed, has been successfully employed in both Canada and the United States on a number of occasions. Members of the Victoria police force have received training in its use. The technique has not only been used in Australia but in other States where the methods adapted for use in Victoria have in turn been adapted for use in those States, though in some cases the local police forces have devised their own procedures. Whilst the concept is simple enough, it is evident from this brief description that a deal of careful planning and considerable expertise is necessary if the technique is to be successfully employed. … [Citations omitted][2] (2004) 9 VR 275, 277-278.[3] Importantly, from the beginning of the covert operation in the present case, all contact with Mr Jelicic was aurally recorded and not just the final confession, as has occurred in some other operations.The nature and course of the voir dire hearing