R v Jelicic - [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 on the accused.
6.       Voluntariness is established, the evidence is generally admissible, and the exercise of any discretion to exclude the evidence is declined.
Evidence Act 1929 ss 34P, 34P(2), 34P(2)(a), referred to.
Tofilau v The Queen (2007) 231 CLR 396, applied.
Re Applications by Chief Commissioner of Police (Vic) (2004) 9 VR 275; R v Clarke [2004] VSC 11; R v Cowan (2013) 237 A Crim R 388; Em v The Queen (2007) 232 CLR 67; R v Lee (1950) 82 CLR 133; McDermott v The King (1948) 76 CLR 501; R v Swaffield; Pavic v The Queen (1998) 192 CLR 159; R v Tofilau (No 2) (2006) 13 VR 28; R v Weaven (Ruling No 1) [2011] VSC 442, discussed.
Bunning v Cross (1978) 141 CLR 54; Cleland v The Queen (1982) 151 CLR 1; R v Cowan; R v Cowan; Ex parte Attorney-General (Qld) [2015] QCA 87; Cowan (AKA Shaddo N-Unyah Hunter) v The Queen [2016] HCA Trans 57; Donai v The Queen [2011] NSWCCA 173; R v Ireland (1970) 126 CLR 321; R v Karakas (Ruling No 1) [2009] VSC 480; Lauchlan v Western Australia [2008] WASCA 227; R v Lobban (2000) 77 SASR 24; R v Marks (2004) 150 A Crim R 212; Nicolas v The Queen (1998) 193 CLR 173; Ridgeway v The Queen (1995) 184 CLR 19; R v Rockford (2015) 122 SASR 391; R v Simmons; R v Moore (No 2) [2015] NSWSC 143; Van der Meer v The Queen (1988) 62 ALJR 656, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"voluntariness", "basal involuntariness", "overborne", "esoteric knowledge"

R v JELICIC
[2016] SASC 57
Criminal

PEEK J. Reasons for admitting prosecution evidence after a voir dire hearing.
Introduction
On 7 March 2013, Mr Piscioneri, who was 80 years of age and living alone at Hendon, was beaten to death in his home. His wallet was missing from his body. On post mortem, he was found to have died as the result of the infliction of a number of severe blunt force injuries to his face and head which had necessitated the infliction of at least 10 separate blows.
By 22 March 2013, Mr Jelicic was suspected by investigating police of having been involved in the murder. On that day, police informed Mr Jelicic that he was a suspect, interviewed him under caution and searched his premises pursuant to a general search warrant. Mr Jelicic answered all questions and denied any involvement in the murder.
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
The admissibility[4] of the evidence of the covert police operation was contested and a voir dire hearing was to be held prior to empanelling the jury.
[4] For the sake of brevity, I will from time to time use the terms admissible and admissibility to encompass both the matters of common law admissibility and also discretionary exclusion. I will later deal separately with discretionary exclusion.
I have proceeded on the conventional basis that the prosecution must prove voluntariness[5] but that it is for the accused both to establish the factual basis upon which it is submitted that evidence should be excluded in the exercise of judicial discretion[6] and persuade me to so exercise the discretion.
[5] The standard of proof is on the balance of probabilities.
[6] The standard or proof is on the balance of probabilities.
I heard evidence and submissions on the voir dire from Wednesday 9 March to Tuesday 15 March 2016. All of the contacts with the accused were aurally recorded but transcripts were made of only some of the aurally recorded scenarios. Those transcripts are lengthy. The aural recordings which have not been transcribed are also long in duration. I also received written and oral submissions from both parties.
On the completion of the voir dire hearing on 15 March 2016 I considered the matter and on 16 March 2016 I ruled that the evidence was generally admissible. I did so without giving written reasons since the finalisation of written reasons at that time would have delayed the progress of the trial significantly.
I have now finalised written reasons and I deliver them. In referring to police covert operatives therein, I adhere to the requirement of referring only to their code designations (such as U50 and D14) as explained in my separate reasons concerning suppression orders which are delivered contemporaneously with these reasons.
Mr Big operations – some legal considerations
In the High Court decision in Tofilau v The Queen,[7] the Court considered the separate appeals of four appellants (Messrs Tofilau, Marks, Hill and Clarke) who were each convicted on the basis of the respective evidence secured through quite separate Mr Big operations.
[7] (2007) 231 CLR 396 (“Tofilau”). Unless otherwise stated, subsequent references to Tofilau will be to the High Court decision dealing with the appeals of all four appellants.
The following statement in the joint judgment of Callinan, Heydon and Crennan JJ in Tofilau presents an overview of the pattern of legal objections to admissibility usually encountered in Mr Big cases:[8]
[245] In order to appreciate the significance of the appellants’ arguments, it is desirable to place them in the context of the law relating to the admissibility of confessions as a whole. An admission by an accused person “must be voluntary in order to be admissible”. It is common to divide involuntary statements into two categories. One concerns the “inducement rule”: an admission by an accused person “is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed”. The other category concerns those caught by the “basal involuntariness” rule, to be discussed below. But even if an admission is voluntary, it may be excluded on “discretionary” grounds. In R v Swaffield Toohey, Gaudron and Gummow JJ grouped these “discretionary” grounds under three heads.
[246] The first in time to emerge was that which was stated in the cases summarised by Lord Sumner delivering the advice of their Lordships in Ibrahim v The King about impropriety in police questioning. The correctness of excluding evidence on this ground in Victoria was left open in Cornelius v The King, but was approved for New South Wales by Dixon J in McDermott v The King. Dixon J said of it: “there has arisen almost in our own time a practice in England of excluding confessional statements made to officers of police if it is considered upon a review of all the circumstances that they have been obtained in an improper manner.” In R v Lee Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ declined to interfere with the Victorian Full Court’s recognition of the discretion in that State. The application of this head was given fresh life from 1982, for in Cleland v The Queen the discretion to exclude illegally or improperly obtained real evidence enunciated in Bunning v Crosswas applied to confessions. It has since been common to refer to this as a “policy” discretion.
[247] The second “discretionary” head to emerge arose where it could be said of a voluntary confession that “in all the circumstances it would be unfair to use it in evidence against” the accused. The words are those of Latham CJ in McDermott v The Kingsummarising R v Jeffries,but they were approved by Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ in R v Lee. This is commonly called a “fairness” discretion.
[248] The third “discretionary” head to emerge was the application to confessions of the “discretion” to exclude evidence the prejudicial impact of which is greater than its probative value, which had begun to be recognised in R v Christieand continued to develop in various fields of the law of evidence throughout the twentieth century. The application of that principle to confessions, but not its description as a “discretion”, was accepted as legitimate by Toohey, Gaudron and Gummow JJ in R v Swaffield.
[Citations omitted]
[8] (2007) 231 CLR 396, 468-470.
It is no coincidence that cases involving a Mr Big covert operations tend to be similar. For many years, templates have been used to plan such operations, and the templates have been modified in the light of police experience as to their effectiveness and, most importantly, aspects of court decisions from time to time indicating what is acceptable, what is unacceptable, and where dangers of inadmissibility may lie.
It is important to appreciate that there are differences between the Australian Mr Big operations (both those considered by the High Court in Tofilau and Australian operations conducted subsequent to that decision) and many of the operations carried out in North America, such that the Australian operations have been less open to objection than the North American. I will say something about some of those differences and the decision of the Canadian Supreme Court in R v Hart[9] below.
[9] [2014] 2 SCR 544.
However, one readily notes the similarities between the four operations concerning the four appellants Tofilau, Marks, Hill and Clarke considered in Tofilau. Since this decision of the High Court, the execution of such operations in Australia have become even the more uniform so as to ensure compliance with the separate judgments of Justices of the High Court in Tofilau.
Thus, while it is often said, in a general way, that little is to be gained from a comparison of the facts of one case with that of another, that observation may be less true in the case of Mr Big cases. By dint of the above processes, the ambit of objection to the admission of evidence derived from Mr Big operations conducted in Australia has tended to become more predictable. To at least some extent, a comparison may usefully be made of the different ways in which essentially the same operation was carried out in different Australian cases.[10]
[10] Since the decision in Tofilau, evidence of this type has received further extensive consideration in Australia. Authorities include: Lauchlan v Western Australia [2008] WASCA 227; R v Karakas(Ruling No 1) [2009] VSC 480; Donai v The Queen [2011] NSWCCA 173; R v Weaven (Ruling No 1) [2011] VSC 442; R v Cowan (2013) 237 A Crim R 388; R v Simmons; R v Moore (No 2) [2015] NSWSC 143; R v Cowan; R v Cowan; Ex parte Attorney-General (Qld) [2015] QCA 87. In all of these decisions the evidence has been found to be admissible.
Were Mr Jelicic’s statements “voluntary”?
In McDermott v The King, Dixon J (as he then was) made the following statement to which I will refer as “the McDermott statement”:[11]
At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.
[11] (1948) 76 CLR 501, 511-512.
In R v Lee,[12] the High Court adopted that statement and formulated the two aspects of the rule requiring that a confession be voluntary in order to be admissible thus:[13]
(1)that such a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, and
(2)that such a statement is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed.
[12] (1950) 82 CLR 133.
[13] (1950) 82 CLR 133, 144.

I should note that although the word “inducement” is nowadays more usually used to refer to promise of benefit, the courts have traditionally used the term in referring to confessions induced by both promise of benefit, etc. and infliction of violence, intimidation, threats, etc. as appears from this passage in Lee.
The history, basis and ambit of the requirement that any confessional statement must be proven by the prosecution to be “voluntary” was considered at considerable depth by the High Court in Tofilau.[14]It was emphasised that there are two aspects of the rule that the prosecution must establish that confessions or admissions were “voluntary” closely corresponding to the dichotomy propounded in R v Lee (although in reverse order). I turn to consider each of those two aspects.
[14] (2007) 231 CLR 396.
The first aspect of voluntariness – “definite rule voluntariness”
The first of the two aspects of voluntariness is “an aspect of the rule with a specific focus, namely that a confessional statement will be excluded from evidence as involuntary if it has been obtained from an accused either by fear of prejudice or hope of advantage, exercised or held out by a person in authority”.[15] This may be referred to as “definite rule voluntariness” or “inducement rule voluntariness”.[16]
[15] Tofilau v The Queen (2007) 231 CLR 396, 401 [2] (Gleeson CJ). His Honour went on to refer to the McDermott statement and observed: “That particular and well-established form of involuntariness was described by Dixon J as ‘the classical ground for the rejection of confessions and [that which] looms largest in a consideration of the subject.’”
[16] As noted above, there is a potential danger in using the latter terminology in that it may be erroneously thought that only a confession induced by promises of benefit as distinct from threats and intimidation is under consideration.
In Tofilau, Gleeson CJ stated:[17]
[2] … A confessional statement will be excluded from evidence as involuntary if it has been obtained from an accused either by fear of prejudice or hope of advantage, exercised or held out by a person in authority. That particular and well-established form of involuntariness was described by Dixon J as “the classical ground for the rejection of confessions and [that which] looms largest in a consideration of the subject”. …
…
[10] Reference has been made above to the passage in his judgment in McDermott in which Dixon J referred to the general requirement of voluntariness for the admissibility of confessional statements and then added that it was “also a definite rule” that a statement cannot be voluntary if it is preceded by an inducement held out by a person in authority. The context reveals that Dixon J used the word “definite”, not for emphasis, but as meaning precise or specific, in contrast to the general and less specific principle to which he had earlier referred.
[17] (2007) 231 CLR 396, 401; 406.
The reliability of a confession is not in issue when considering “definite rule voluntariness”
It is to be noted that if a confession is induced by the holding out by a person in authority of either threats, intimidation, fear of prejudice, etc. or promises of benefit or advantage, it is not open to the prosecution to lead evidence that the confession so induced is in fact reliable. It is settled in favour of the citizen that the reliability of a confession is not in issue when considering definite rule voluntariness; such a confession is simply to be excluded if it is not shown to be voluntary. Thus Gleeson CJ observed in Tofilau:[18]
[16] The common law of evidence in Australia has treated the definite rule as a specification of a particular form of conduct, involving the application of a certain kind of coercive force external to a confessionalist, which it will not accept as a reason for voluntary action. …
[18] (2007) 231 CLR 396, 408.
And similarly, Gummow and Hayne JJ noted in their joint judgment:[19]
[58] ... The particular content that is given to both the concept of “inducement” and the concept of a “person in authority” constitute the criteria that yield the relevant legal conclusion: that the confession was not made voluntarily. …
[19] (2007) 231 CLR 396, 420 [58].
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.
And Callinan, Heydon and Crennan JJ in their joint judgment stated:[22]
[323] The Director is correct in submitting that a person to whom an accused has made admissions cannot be a person in authority at least unless that person is perceived by the accused, on reasonable grounds, to have the lawful authority of the state to investigate the circumstances. On that test, the undercover officers were not persons in authority, because each appellant lacked reasonable grounds for thinking that the undercover officers had lawful authority to investigate the offence of which that appellant, it was thought, was guilty. The only reasonable belief which the appellants could have had about those persons was that they were gangsters, not authorised police officers, and that, as the Director submitted, “[t]hey do not call upon the power of the State. They call upon the power of evil.” Accordingly, the admissions of the appellants were not the result of inducements rendering them inadmissible.
[22] (2007) 231 CLR 396, 498. See also Gummow and Hayne JJ at 411 [29].
The prosecution are clearly correct in their submission that “the facts in Tofilau are indistinguishable from the present case. There is no basis to find that the accused believed that the undercover operatives had lawful authority to investigate or prosecute the offence for which he was a suspect. The inducement rule has no application.”[23] The prosecution contention is so plainly established by Tofilau that counsel for the present accused correctly conceded this issue in his written submissions.
[23] Prosecution outline of argument at [8].
The second aspect of voluntariness – the principle of “basal voluntariness”
The second aspect of the voluntariness rule has a wider and more general focus and has come to be referred to as “basal voluntariness”. As noted above, in R v Lee[24] the High Court referred to the McDermott statement in formulating the broader aspect of the rule requiring that a confession be voluntary in order to be admissible thus:
(1) that such a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure.[25]
[24] (1950) 82 CLR 133, 144.
[25] As noted above, their Honours proceeded to add: “and (2) that such a statement is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed.”
It is obvious that voluntariness is a question of fact and degree.[26] In Tofilau, it was also emphasised that the concept of voluntariness is protean in nature. Thus Gleeson CJ stated:[27]
[6] The concept of voluntariness, which is significant in many legal contexts, is protean. This was explained by Windeyer J in Ryan v The Queen to be “partly because of ambiguities in the word ‘voluntary’ and its supposed synonyms, partly because of imprecise, but inveterate, distinctions which have long dominated men’s ideas concerning the working of the human mind”. Even the use of terms such as “mind” and “will”, or “freedom of choice”, may provoke scientific or philosophical protest. Generally speaking, however, the law, as a normative science which must evaluate human conduct for practical purposes, accepts certain working hypotheses, one of which is the existence of free will. It judges the conduct of people upon assumptions of personal autonomy that may be rejected by a psychiatrist or a philosopher.[28] … [Citations omitted]
[26] Collins v The Queen (1980) 31 ALR 257, 307 (Brennan J); Cornelius v The King (1936) 55 CLR 235, 247 (Dixon, Evatt and McTiernan JJ).
[27] (2007) 231 CLR 396, 404. A similar statement was made by Gummow and Hayne JJ at 417 [49].
[28] In Azar v The Queen (1991) 56 A Crim R 414, Gleeson CJ had earlier stated in similar vein at 418 [3]: “The simplicity of words such as “in the exercise of a free choice to speak or to remain silent” can be deceptive. There are many situations in which a person who makes an admission, if left uninfluenced by other persons or considerations, would not have done so. It does not follow that a statement made in such circumstances is involuntary. People speak under all manner of constraints, and impelled by all manner of influences, and the meaning that a psychiatrist or a philosopher would attach to the concept of free choice in this context is not necessarily the same as that which a lawyer would give it.”
The majority in Tofilau stressed that basal voluntariness is concerned with compulsion sufficient to overbear the will. The joint judgment of Callinan, Heydon and Crennan JJ analysed the McDermott statement closely and noted that, at the time Dixon J was writing, “duress” meant “the use or threat of either violence to the person or imprisonment”, and “intimidation” meant “the threat of violence or some other illegal act”.[29]
[29] Tofilau v The Queen (2007) 231 CLR 396, 502 [330].
In similar vein, Gummow and Hayne JJ stated in their joint judgment:[30]
[58]    … But as the reasons of Dixon J in McDermott show, application of the rule about “basal voluntariness” also depends upon identifying the criteria that are to found the legal conclusion that a confession was not made “voluntarily”. The relevant conclusion is described as the will being “overborne”. The circumstances that yield that conclusion, and provide the criteria which govern the availability of the legal conclusion, are described as “the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure”. All are species of compulsion.
[59]    Further refining the content of the criteria that are engaged under the head of “basal voluntariness” must take account of the way in which the tests will fall for consideration. “Basal voluntariness” may be seen as a principle underpinning the whole of the law relating to confessions. But it is a principle that in practice will fall for consideration, if at all, only in cases not concerning a person in authority. …
[60]    Confessions made to someone not known or believed to be a person in authority will thus fall to be considered under the test of “basal voluntariness”. Basal voluntariness is concerned with confessions made under compulsion. The key inquiry is about the quality of the compulsion that is said to have overborne the free choice of whether to speak or to remain silent. In this context, “overborne” should be understood in the sense described by Dixon J as “the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure”. It is necessary to focus upon the sufficiency of the compulsion.
[61]    In McDermott, Dixon J treated overbearing of the will separately from the fear of prejudice or hope of advantage. Fear of prejudice and hope of advantage were treated as the two species of the genus of inducements. But, by contrast, overbearing of the will was confined to circumstances like duress. Considerations of a fear of prejudice or the hope of advantage were seen as not only different from an overbearing of the will but also as relevant only to statements made to a person in authority.
[62]    Rarely, if ever, would the test of “basal voluntariness” exclude confessions where some hope of advantage (as distinct from fear of prejudice) was held out to the person who made the confession. The “basal principle” of which Dixon J spoke is “a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man’s will” (emphasis added). But there are few circumstances when an inducement in the form of a promise of advantage will compel a person to speak. Promises of advantage that are not made by a person whom the confessionalist knows or believes to be a person in authority would rarely, if ever, be such as could found the conclusion that the speaker did not have a free choice to speak or remain silent. That is not to say that the promising of an advantage may not bear upon the exercise of the discretion. It may do so.
[63]    Two further points should be made. The first is negative and identifies what does not suffice to show that the will has been overborne. The conclusion that a confessionalist had no choice to speak or stay silent is not required (and without more being established, would not be open) if it is observed that the confessionalist acted under some misapprehension or mistake, even if that misapprehension or mistake was induced by the person to whom the confession is made. Nor is that conclusion required (and without more being shown the conclusion would not be open) if it is observed that there was some imbalance of power between the confessionalist and the person to whom the confession was made.
[64]    The second point to make is that the conclusion that a confessionalist had no choice to speak or stay silent is not readily reached where the confession was not made to a person whom the speaker knew or believed to be a person in authority. In such a case, absent duress of person or intimidation, it will be necessary to articulate why there was no choice. Was the importunity, insistence or pressure so sustained or persistent that there was no choice? Why? By hypothesis, the confessionalist did not know or believe that the weight of the state or its agencies bore upon him or her. What, then, is said to have deprived that person of choice? For the basal voluntariness rule to apply it must be possible to identify what it was that is said to have deprived that person of choice.   (Emphasis added; citations omitted)
[30] (2007) 231 CLR 396, 420-422.
As to the facts in the case of the particular appellant Mr Tofilau, Gummow and Hayne JJ stated:[31]
[81] The statements the appellant made to undercover police officers were not made under compulsion. Nothing that was said to or done with the appellant constituted compulsion of a kind that would meet the criteria leading to the conclusion that what was said was not said voluntarily. There was no duress or intimidation. The police operation was elaborate and took place over an extended period. The appellant thought that he would benefit from saying what he did. More than once the appellant was told how important it was that he be frank about his past and about the circumstances of Ms Romeo’s death in particular. He was repeatedly told that if he had a problem the boss would make it “go away”. But no coercion was applied to the appellant by those to whom he made his confession. There was no importunity, insistence or pressure of a kind exerted by those to whom the confession was made that would found the conclusion that the appellant had no free choice whether to speak or stay silent. Observing that the appellant may have felt under pressure requires no different conclusion. What is important is the absence of coercion by those to whom he spoke. That he may have felt under the pressure that he himself generated by his desire to join the gang and thus gain not only the financial benefits said to follow from that membership but also resolution of what otherwise appeared to be his inevitable prosecution for murder is not to the point.
[31] (2007) 231 CLR 396, 426.
Their Honours proceeded to come to the same conclusion by similar reasoning in relation to each of the other three appellants.[32]
The accused’s approach to basal voluntariness
[32] (2007) 231 CLR 396, 426-433.
A notice was filed, stated to be pursuant to “Rule 49(1)(H) of the District Court Criminal Rules 2014” (sic: Rule 49(1)(h) of the Supreme Court Criminal Rules 2014) and recited the application and the grounds as follows:
1.   That the Prosecution not be permitted to lead any evidence of any admissions made by the Applicant to … (U50) on the 10^th and 11^th February 2014.
Grounds
The grounds relied upon are as follows:-
1.   The admissions were made as a consequence of the applicant being overbourne [sic] as a result of duress, intimidation, persistent importunity and sustained an [sic: and] undue insistence and pressure and are therefore involuntary and inadmissible.
2.   In the alternative, the admissions were made as a consequence of the actions and tactics of undercover police, which were oppressive, improper and unfair to the applicant such that the admissions should be excluded in the exercise of the Court’s discretion.

Obviously this case was never in the District Court. A more serious gaffe is that the notice refers only to admissions made to operative U50 whereas in fact the critical detailed admissions were initially made to operative D14 (playing the part of “Mr Big”); it was only after those admissions had been made that the accused separately repeated such admissions to U50 (playing the part of a mid-level gang member). The notice also failed to object to the reception of the important evidence of the subsequent physical acts of the accused in taking U50 to various places and there indicating specific locations (such as the location of a drain which was later consequentially searched by police and yielded critical evidence of the discovery of a Medicare card and a Seniors card belonging to the deceased).
Putting aside the uncorrected typographical errors, ground 1 appears to rely solely upon a characterisation of events occurring on 10 February 2014 in the nature of “duress, intimidation, persistent importunity and sustained and undue insistence and pressure”. However, one would have thought that the accused would wish to rely upon the cumulative effect of all that had occurred during the operation (including express or implied promises of benefits that would or might accrue to the accused should he join the gang) together with the alleged “duress, intimidation etc” said to have occurred on 10 February 2014. I will assume that such matters are in fact relied upon by the accused, despite the present drafting.
Ground 2 appears to raise only the public policy discretion and to relate to police methods only. The word “unfair” appears to be used in that context rather than as asserting reliance upon the fairness discretion; of course, the fairness discretion addresses the unfairness of admitting evidence in all the circumstances of a particular case as distinct from a direct attack on unfair police methods which is suggested here and which is the province of the public policy discretion.[33] Further, ground 2 proceeds very much in an all or nothing fashion; as an example, it does not raise the alternative issue of portions only of the scenario evidence being excluded on the basis that the probative value of the evidence admitted for a permissible use does not substantially outweigh any prejudicial effect they may have on the accused.[34] This aspect of the matter is not unimportant in the present case.
[33] See, for example, R v Swaffield; Pavic v The Queen (1998) 192 CLR 159, 189 [53], citing Van der Meer v The Queen (1988) 62 ALJR 656, 666.
[34] It is explained below that it is s 34P of the Evidence Act 1929 rather than the Christie discretion that is here relevant.
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.
In one scenario, one of the operatives was portrayed as lying to D14 about his role in a simulated robbery which comprised an earlier scenario. When this misconduct was ostensibly discovered, the transgressor was summarily expelled from the gang in the accused’s presence with much shouting and profanity. Again, the inadvisability of lying to D14 was stressed to the accused.
Later, it was stated to the accused that the items stolen in the robbery were being sold for a high price and that he would be entitled to a full share, estimated at about $10,000 to $15,000, but only if he were successful in becoming a member of the gang. The accused continually evinced great eagerness to become a member.
On 9 February 2014, the accused told U50 that he was a police suspect for murder and denied having done the crime. This was the first time he told any of the operatives about anything relating to the death of Mr Piscioneri.
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.
As to the third item, on 10 February 2014 the accused stated to D14 that he had pulled out a particular drawer in the deceased’s lounge room “in order to fake a robbery”. Detective Brevet Sergeant Huppatz gave evidence on the voir dire that that particular drawer, and only that particular drawer, was found to be open when police first attended the scene. This information was never in the public domain.
As to the fourth item, on 10 February 2014 the accused (who did not claim to have any medical training), had stated to D14 that after he had hit the deceased, the deceased convulsed and expectorated blood. A post mortem report[35] indicated the mechanisms which could have led to those actions by the deceased being observed by the killer.
[35] Exhibit VDP22.
A defence summary of facts occurring on 9 and 10 February 2014
The accused’s written submission states:
14    The techniques used by undercover operatives in the matter of Jelicic are similar to those employed in Tofilau and in the matter of Hart in Canada. Mr Jelicic predominantly associates with his mother and the victim prior to the murder. He is in receipt of the disability support pension from Centrelink. Therefore like Tofilau and Hart, Mr Jelicic has a low socio-economic background and lacks of social ties. He is made to feel a part of the criminal organisation and the operatives create a sense of comradery. He is often taken on social outings where the members have a meal and talk about personal issues with him. He is also provided with payments for work that he does and given a financial incentive to continue working with the group.
15    The defendant consistently denied any involvement in the murder, and any involvement in the peripheral aspects in relation to the murder. He did this not only when he first me [sic: met] D14 but also in his involvement with the other undercover operatives over a period of time.
16    Mr Jelicic’s persistent and repeated denials can fairly be summarised as follows:
16.1   On 9 February 2014 at 4.23 a conversation occurs where repeatedly, the defendant says he has got nothing to worry about as he did not do anything. (question/answer 311, 313, 329, 346).
16.2   On 10 February 2014 at 5.47 the defendant was being taken to see the big boss and again the question of admitting any earlier criminal activity is raised with him. He again denies any offending or anything to worry about. (question/answer 284, 321)
16.3   On 10 February 2014 at 6.15 the defendant meets with D14. During that meeting, which lasts for one hour and fifteen minutes, the defendant repeatedly denies any wrongdoing or anything about which he needs to be concerned.
(question/answer 45, 247, 249, 257, 259, 265, 271, 303, 307, 313, 315, 321, 325, 339, 345, 415, 469, 471, 475, 487, 517, 546, 548, 564, 580, 624, 644, 646, 648, 676, 678, 680, 696, 720, 722, 730, 774, 776, 778, 782, 784, 790, 816, 820).
16.4   On 10 February 2014 at 7.24 the defendant is then handed back to U50 who remains with him until 8.40pm. During that time the defendant is given food and drink and is spoken to at length by U50. The defendant continues to consistently deny any offending or involvement in the murder. (question/answer 46, 52, 54, 72, 74, 122, 126, 134, 140, 174, 176, 217, 231, 255, 263, 319, 378, 476, 498, 500, 518)
16.5. On 10 February 2014 at 8.29 the defendant is returned to D14 and is further questioned and pressured by D14. The defendant constantly denies that he is lying about not being involved with previous offending and specifically denies that he is lying about not being involved with previous offending and specifically denies lying or being so involved.
(question/answer 38, 52, 68, 70, 86, 106, 108, 112, 124, 150, 152, 154, 160, 176, 180, 182, 224, 226, 228, 244, 246, 260, 262, 264, 274, 278, 280, 318, 320, 348, 350).
16.6   Ultimately at answer 374 an admission is made and that admission is developed and further extracted by D14.
Although the prosecution might cavil at some of the above, for present purposes I will proceed on the basis that this is an adequate summary. However, it should be added that Mr Algie SC conceded (quite properly) that criticism could not be made as to the one and a quarter hour meeting with D14 commencing on 10 February 2014 at 6:15pm. He stated:
Can I say this: any confession that Mr Jelicic might have made in that first meeting, that hour-and-a-quarter meeting with D14, I will concede in the circumstances would be admissible. He was told that he had the choice to tell him about this previous suspected crime, he was told he could leave, all of those sorts of things. Things that I would say he had to be told in order to ensure that the freedom to speak or not speak was preserved to ensure that any confession that he might make would be admissible.
A defence contention that the McDermott statement may be applied by reference to a comparison between the facts here and in “Tofilau”
Mr Algie submits, first, that the McDermott statement may be applied to the present case by reference to a comparison between the facts here and the more benign facts in “Tofilau”; and, secondly, that such a process leads to inadmissibility.
The accused’s written submission proceeds as follows:
9.   Without actually reading the transcripts and hearing the conversations between undercover police and Mr Jelicic, it might be thought that the decision of the High Court in Tofilau renders those conversations admissible. However a more detailed analysis of the materials gives rise to serious concerns both about involuntariness and also fairness which the High Court recognised could give rise to discretionary exclusion in an appropriate case, particularly if accompanied by unreliability.
...
11.   It is the Defence position that the admissions made by the defendant were made by him as a consequence of consistent pressuring, importuning and overbearing of him by the undercover police and they are therefore involuntary. It is the way in which the suspect is placed under duress, intimidation, persistent importunity or sustained or undue insistence or pressure: H, SA (2013) SASCFC 86 [94-100]. As Dixon J states in McDermott, cited at para 95 “... it does not matter by what means he has been overborne.”
12.   In the case of Tofilau the similar sting employed against each of the appellants in the High Court did not engage in anything like the systematic questioning and pressuring of the suspect as sustained by the defendant in this case. In Tofilau the scenario was a vehicle to provide an incentive to make admissions to the previous offence, which although would not have been made but for the sting and the incentive, merely provided an opportunity for those admissions to be made, albeit for the purposes of achieving a personal advantage to the suspect. The admissions were essentially volunteered. R v Tofilau 92006) [sic] 160 A Crim R 549 [73-80].
13.   This is fairly contrasted with the circumstances of the defendant in this case
The passages set out above relating to the facts then appear. However, the defence submission, particularly at paragraphs 12 and 13 (reproduced immediately above), must be read very closely.
At paragraph 12 of that written submission, the words in the first sentence “the case of Tofilau” clearly must refer to the High Court proceedings in Tofilau v The Queen; it is directly asserted that that submission is being made concerning “each of the appellants in the High Court”. Since the accused does not anywhere (in his written submissions or oral submissions or list of authorities) make any reference to any of the other three appellants whose respective cases were also considered by the High Court in Tofilau v The Queen, one might assume that the present defence submission is that the police conduct in the present case went far beyond the police conduct generally considered in the four cases before the High Court in Tofilau v The Queen. It would appear that what is being submitted is that the case of the appellant Mr Tofilau was fairly representative of the position concerning the police conduct towards all four appellants and was more benign than that encountered in the present case.
One would, I think, read “Tofilau” (the second word in the second sentence of paragraph 12) in that same sense. It would only be if one noticed that the reference in the third sentence of paragraph 12 has become “R v Tofilau”,[36] that one would perceive a change of emphasis to the particular facts in the case of the particular appellant Mr Tofilau has somehow occurred.
[36] The Australian Criminal Reports citation reference there given [R v Tofilau (2006) 160 A Crim R 549] in fact refers to the decision of the Victorian Court of Appeal (also reported as R v Tofilau (No 2) (2006) 13 VR 28).
However, it is to be emphasised that the High Court in Tofilau v The Queen dealt with all four appeals and came to the same result in each; in this regard, I refer to the joint judgment of Callinan, Heydon and Crennan JJ which addressed the McDermott statement and found that basal involuntariness was excluded in all of the appeals. Their Honours commenced thus:[37]
[374] It is now necessary to apply Dixon J’s test to the facts in order to assess the submissions that each appellant had no choice but to confess. First some general aspects of the facts will be noted. Then the circumstances peculiar to each appellant will be considered.
[375] Here the undercover police officers did not use violence on any appellant, and they did not threaten it. They did not threaten any illegal act directed against any appellant and they did not threaten any illegal act against any third party whose position might cause an appellant to speak who otherwise might have remained silent. They did promise to procure a corrupt police officer to terminate the police investigations, but they never in fact intended to do any such thing. They did tell Clarke that the police had DNA evidence linking him with the crime: that was untrue, but it was not intrinsically unlawful. They thus did nothing unlawful. There was no duress or intimidation. To ask whether they did anything “illegitimate” begs the question: if what they did fell outside Dixon J’s test, it was not; if it fell within it, it was.
[376] The police officers were at times importunate. They were insistent that each appellant confess his guilt. By their questioning they applied pressure. The question whether each appellant confessed involuntarily thus turns on whether the importunacy was so persistent, and whether the insistence and the pressure were so sustained or undue, as to overbear his will. That depends on the particular circumstances applying to each appellant. (Emphasis added)
[37] (2007) 231 CLR 396, 517.

Thus it can be seen that their Honours, speaking to all four appeals here, considered that there was both some importuning and some application of pressure to each appellant; and that it was therefore a matter of degree in each of the four cases as to whether voluntariness was established. Their Honours then proceeded to consider the four cases seriatim and decided that voluntariness was established in all four cases. That following passage[38] is of great assistance but it is quite lengthy and I will not reproduce it. But it does appear from various references in the High Court judgments in Tofilau that the case of the appellant Mr Tofilau in fact did not represent the high point of the opportuning and application of pressure by the various covert police officers in the four appeals referred to generally in the joint judgment of Callinan, Heydon and Crennan JJ at [376] reproduced immediately above.
[38] (2007) 231 CLR 396, 517-522 [377]-[389].
In order to explore that matter, it is best to make direct reference to the judgments of the four respective trial Judges, for that is where the greatest detail may be found. Of those four judgments, the one that reproduces the most detail concerning the degree of “importuning” or “pressure” that was applied leading up to the first confession to the relevant “Mr Big” is the judgment of Kellam J in R v Clarke,[39] where his Honour described the circumstances thus:
[39] [2004] VSC 11.
[8]     Over a period of some months following March 2002 Terry [the covert operative playing the role played by U50 in the present case] and the accused developed what the accused believed to be a close and genuine friendship. During this time Terry gradually introduced the accused to what the accused believed was a criminal organisation. A number of “scenarios” were devised by the covert operatives. These were intended to, and did, convince the accused that Terry was a member of a highly organised group of criminals. The accused was led to believe that the criminal organisation had connections with corrupt police. Indeed on one occasion Terry drove the accused to a car park entrance to the St Kilda Road Police Complex where the accused met a supposedly corrupt policeman and received from him an envelope which he then handed to Terry.
[9]     The accused was given the impression that the organisation handled significant sums of money. Terry offered him the possibility of becoming a member of the organisation. However, the accused was told by Terry that he could not become a member of the organisation until he was approved by “the boss”, a man referred to by the name of Mark. [The covert operative playing the role played by D14 in the present case] He was told that it would be necessary for him to meet Mark before he could become a member of the organisation.
[10]    In the period of time leading up to the meeting with Mark the accused was introduced to a series of purported criminal activities in which he willingly played a part. These activities included the collection of monies from brothels, a purported jewellery robbery and other similar “scenarios”. The accused was led to believe that $8,000 had been placed in a safe deposit box as his share of the jewellery robbery. He was told that this sum would be paid to him once he had been approved by Mark as a member of the organisation.
[11]    Throughout the whole period, the accused was told repetitively that the organisation relied upon a relationship of trust, loyalty and honesty between its members and that in particular Mark had to know the full truth about anything in the past which might bring police attention to the organisation.
[12]    On 2 June 2002, and no doubt at the instigation of police, an article appeared in the Sunday Herald Sun newspaper under the headline “Bonny (sic) may have known her killer – Police hunt for Boarder”. That article stated that a Detective Senior Sergeant Ron Iddles, the head of the “police cold case unit specialising in unsolved murders had re-opened the case”. It stated that Senior Detective Tim Day of the Homicide Squad requested anyone with any information “about former boarders and visitors” to the home of the deceased and her mother, to contact police.
[13]    The next day, Monday 3 June, the accused and Terry met in the course of the afternoon. A discussion took place between Terry and the accused in relation to DNA and how DNA testing could be used to solve “old murders”. In the course of that conversation Terry said to the accused, “It is nice to be connected to people who can make things disappear”.
[14]    Later on the same day and at approximately 6.30 pm, Detective Senior Sergeant Iddles attended at the home of the accused. He spoke to the defacto wife of the accused and left a business card with his name on it. He requested the defacto wife of the accused to ask her husband to telephone him at the Homicide Squad.
[15]    Shortly after 9.00 pm that evening the accused telephoned Terry and informed him that Detective Senior Sergeant Iddles had been to his home. The accused requested to speak to Terry. Terry drove to the home of the accused to collect him. The accused told Terry that Mr Iddles had been and had left a message that he wished to speak to him and wanted him to “come in and do a DNA test and a polygraph test”. In the course of this conversation Terry told the accused “Now the boss can fix anything ... But he has got to know the absolute truth obviously”. Throughout this conversation and on numerous occasions the accused denied any responsibility for the death of the deceased. Terry told the accused that the boss could “Get ya taught how to beat the polygraph”. The following conversation took place in the course of the discussion about the polygraph.
“Terry:‘That is not a problem. But to do that he’s got to know the full story so he can make sure you pass the polygraph. The DNA side of it, that can disappear, that is not a problem. But I have to talk to the boss eventually obviously but he’s going to want to know the full truth. Like I mean if, if you’ve done it I don’t give a rats arse.’
Accused:     ‘No, I didn’t, no I didn’t.’
Terry:        ‘I Just want, I just want.’
Accused:     ‘Yeah.’
Terry:        ‘We just want it cleared up.’
Accused:     ‘Yep.’
Terry:        ‘That is not a problem, we can make things go away.’
Accused:     ‘Yeah.’
Terry:‘But we’ve got to know the full story so that we can then put wheels into motion to get things changed.’
Accused:     ‘Yeah oh.’
Terry:        ‘Now if you did a polygraph.’
Accused:     ‘Mm.’
Terry:        ‘What’s that going to?’
Accused:     ‘I don’t know. I’ve never had a polygraph.’
Terry:        ‘Yeah, but.’
Accused:     ‘I don’t know. I’m, I’m, I’m, I’ve got’
Terry:        ‘Yeah.’
Accused:     ‘a bad cold, I don’t know what that does to readings.’
Terry:        ‘You got a what?’
Accused:     ‘As you know I’ve got a bad cold.’
Terry:‘Oh no, no, that doesn’t it’s, no what I’m saying is have you got anything to hide?’
Accused:     ‘No. No not at all.’
Terry:‘Because if you have we can make it go away but we’ve got to know the full story that’s all.’
Accused:     ‘No, no, I got nothing to hide.’
Terry:        ‘You definitely didn’t do it.’
Accused:     ‘I definitely didn’t do it.’
Terry:‘Right. Okay well you don’t do a polygraph, you don’t give a DNA sample at the moment. You don’t do anything tomorrow until I ring you.’
Accused:     ‘Mm.’
Terry:        ‘Alright then? I’ll make some phone calls tonight.’”
[16]    The accused telephoned Mr Iddles the next day, 4 June 2002 at about 1.00 pm. The accused told Iddles in that conversation that he did not kill the deceased. Iddles told the accused he wished to speak to him and that he would be seeking a DNA swab from the accused and that he would ask the accused to agree to submit to a polygraph test. The accused told Iddles that his mother-in-law had died recently and that he needed to attend her funeral and that he would call again to arrange a suitable time to attend upon the Homicide Squad Office. Iddles agreed to that course.
[17]    Later that afternoon the accused again met with Terry. Discussion took place about the death of the deceased and the accused once again denied any involvement. Terry told the accused that Mark, “the boss” was coming down “later on in the week” and would have “a chat” with the accused. On numerous occasions throughout this conversation Terry exhorted the accused when he spoke to Mark to tell Mark the truth. The accused was told “the boss” could fix the “lie detector” and that the DNA sample could be “changed”. Terry said:
“All they have to do is get our guy to change the sample. They are not going to know it is yours or whose it is. They change the sample and it comes back, no not him.”
Terry said however that this could only be done only if the accused was “110%” truthful with the boss. Terry told the accused the boss would not “leave him.” The only reason that he would “cast you aside (is) if you have not been 100% truthful”, said Terry to the accused.
[18]    Two days later on Thursday, 6 June and at approximately 3.00 pm Terry met the accused in Collins Street and took him to a city hotel to meet “the boss”, Mark. Once again Terry on numerous occasions exhorted the accused to tell Mark the truth, to be “completely honest with him”. He was told “But the one thing which will bring you undone here is if you tell one lie to the boss, he has obviously got a file ... he knows everything and he will be asking you ... If he catches you out on one lie, one thing not right, he’ll just cut you loose and ... you will never see us ... you will never see him, and you’ll be back trying to get a few dollars together”. The accused was told on several occasions that it did not matter what had happened in his past, as long as he told Mark the truth.
[19]    The accused was then taken to the foyer of the hotel where he met another purported member of the organisation already known to him as Donny and a person called Alex. He was then taken by lift to the hotel suite to meet Mark. As he entered the room he was purportedly searched with an electronic instrument.
The Admissions Obtained by Covert Operatives
[20]    The discussion between the accused and Mark took place with no other person present. The discussion however was filmed by a remote hidden video camera. Both Detective Senior Sergeant Iddles and Senior Detective Day of the Homicide Squad listened at a remote location to the discussion that took place. It commenced at approximately 3.30 pm on the afternoon of 6 June and concluded at approximately 6.10 pm in the evening.
[21]    Early in the conversation Mark said to the accused “You’ve seen some things. Now I’m not worried about that like, really. From my point of view the way that things have been done, you could walk out of here and go straight to the Jacks. It wouldn’t matter to me. I’m not going to be here for very long ... You don’t know how to find any of us, you don’t know my name. You don’t know the boys’ proper names ... You don’t know where they live ... The phone numbers I can change soon as I leave. This room’s booked in a bullshit name so you’re not a threat to me alright”. He said “You can walk out of here today and go on with the rest of your life doing whatever it was that you were doing before Terry came along”. He said “And as I said it will be no skin off my nose, I’m not worried about you, you’re no threat. If you want to get up now and walk out and go back to whatever your life was before, that’s great. If you want to be part of what we do and you want to make a lot of money and you want to stay in places like this, then some of the other things that you’ve seen and you know, we’ve only touched the tip of the iceberg with you because I’m still keeping you at arm’s length with what we do. Then great, there probably is a spot for you but again this is kind of like a job interview”.
[22]    Mark then had a discussion with the accused about his past and then inquired “And what’s happened on Sunday”? The accused man then informed him about reading an article in the newspaper and of the visit from Iddles. The accused told Mark that he did not kill the deceased. In response to this statement from the accused the following discussion took place:
“Mark:‘To be completely honest if you done that sort of thing it’s a better thing for me because it shows that you’re not one of these blokes that just gobs off about stuff he really doesn’t have the ability to do. It, it means that you’ve actually been there and done that like you’re somebody who just talks about it. Now, I pay people a lot of money to do things like this for me to check things out, and it’s not that difficult cause these blokes how they work is they want to put everything on paper. And it’s all on computers now and it’s not that difficult to get things, copies of things and things out. Now, getting your, your ah, prior convictions easy very, very easy like anybody, you could go and get that. It just costs 30 bucks or whatever at this fucking branch and they go and give ‘em to you.’
Accused:     ‘Mm.’
Mark:‘I need you to understand something. I need you to understand where I’m coming from.’
Accused:     ‘Mmm.’
Mark:        ‘You at the moment are red, red, fuckin’ red hot. Right?’
Accused:     ‘Mmm.’
Mark:‘You couldn’t have more fuckin’ police heat on you if you tried. Now, this bloke, and I’ll talk to you about him shortly, he’s got you fuckin’ well and truly lined up for this thing with the kid. Now, these sort of people, they don’t ever give up. They’ll just keep on opening this case and looking at it, and opening it and looking at it. About the only time they’ll give up is when the person they’re looking at dies. Or when, ah, someone else comes along and sticks his hand up. Or when their case falls apart because the fuckin’ exhibits go missing or whatever. And these things happen. I can’t have my whole fuckin’ house falling down around me because you’re red hot. I couldn’t think of a worse mob to be looking at you than this, this fuckin’ group. It’s not your fuckin hometown bobbies from the local detective station.’
Accused:     ‘Mm.’
Mark:‘You know. This is all they do these blokes. It’s not a great big problem as I said to you at the outset because things can be fixed. That, that problem can be made to go away. But what I’m telling you here and now is you can deny this ‘til the cows come home to them.’
Accused:     ‘Mm, mm.’
Mark:‘It’s not going to make any difference. They would probably expect that you’re going to deny it. It just means they keep looking at ya trying to uncover things until they eventually get enough of what they got. Or, or what they, ya know, enough of what they want.’”
[23]    Discussion then took place as to what steps could be taken by Mark in relation to any polygraph test and in relation to DNA. Mark said that he could fix these things. He said:
“Yeah. Now, Terry’s obviously told me a few things that he told me over time and I’m not ah really that that concerned about (what) you have or haven’t said to Terry. ... All my mail is that you’ve done this fuckin’ thing with the kid. Now I don’t really give a shit about that ... If things are difficult for them we either fix it, or, or we send them away for a little while. ... I can understand why you wouldn’t want to be telling anybody that you’re involved in any of those things ... Some blokes see that as a badge of honour and they’ll brag about it. Well personally to me that’s sheer stupidity, you brag about these things, you’re only going to get yourself into trouble”.
The following conversation then took place.
“Mark:‘See, I mean there’s all sorts of possibilities here. But I can’t, I, I, look bottom line is I can’t help ya unless I know what’s happened. That’s the bottom line. Now, this thing’s 20 years old. Yeah?’
Accused:     ‘Mmm, yep 20years old.’
Mark:‘It’s not the sort of thing, I, I would think you’re going to want to talk about after 20 years of doing the right thing, and I’m hoping you did the right thing and kept your mouth shut.’
Accused:     ‘I have kept my mouth shut.’
Mark:‘Well but if you want if fixed there’s got to be a time where you got to say okay well this is what I want, I want it taken care of.’
Accused:‘Well I’d like it to be taken care of because Mark I didn’t do the bastard of a thing. And I.’
Mark:        ‘Well, I ... (inaudible) ...’
Accused:     ‘I’m, being honest.’
Mark:‘I gotta say to you. I’m saying to you I don’t believe you. Right and I’m saying to you, this is the one and only chance you’ve got, one and only chance I’m going to put up, I going to put up with any bullshit. I’ll speak straight to you.’
Accused:     ‘Yeh.’
Mark:‘Right. You kept a secret for 20 years I think, and I completely understand why you wouldn’t want to talk about it. The fact of the matter is everything I’ve been told and things I’ve read, and you can have a look at this, says to me you fuckin’ did that thing, right. Now it could have been a train robbery, it could have been a fuckin’ a one of a million things I suppose. It happens that it’s a kid that gets killed. Well so what? Shit happens. For all I know, maybe, ya know, maybe it was an accident, I don’t know. It’s it’s not something that I’ve had to have a big think about cause I’m not really concerned about what it is. All I’m concerned is what the result is going to be on you. Do you, you know what I’m saying?’
Accused:     ‘Mm, yeah, yeah.’
Mark:‘I couldn’t care less whether you killed ten kids. It doesn’t make any difference to me. You’ve already gone to gaol for killing people that’s, that just shows me that you can do it, that’s all. I said to you that might, might, let’s be honest it’s not might, that is a useful thing, as long as you can get away with it. Now there’s one you didn’t get away with, but you’ve been there and you’ve done your time for that, that’s over and done with. This one is not over and done with it’s fuckin’ far from over and done with. You have a look at that.’”
[24]    When Mark, at the conclusion of the above part of the discussion, asked the accused to “Have a look at that”, he was referring to a document which had as its letterhead the Victoria Police badge and the address of the Homicide Squad. The document bore the date 15 May 2002. It purported to be a “progress report re investigation” of the accused. It purported to be signed by Detective Senior Sergeant Iddles. That document referred to “recent developments” in the investigation and to “ongoing inquiries”. It contained a conclusion that the accused was the only suspect identified by investigators for the crime. It stated that “The investigation being conducted ... is progressing apace and material has been developed which strongly implicates” the accused in the murder. This document was referred to in evidence before me as a “prop”. Clearly it was prepared for the purposes of the discussion between Mark and the accused. The accused man read the document and the following conversation took place:
“Mark:‘What do you want to do about it? Because I’m telling ya this is not going to go away. You can deny it ‘till the cows come home. I can’t have you hanging around with us’.”
In response to this the accused man said:
“Shit ...yeah fuck, fuckin 20 years I’ve lived with this ... Mark, it was an accident that she died”.   (Emphasis added)
There followed a further conversation in which the accused recounted the detail of his actions towards the deceased leading to her death.
The above extract from Kellam J’s judgment is, of course, a summary by his Honour. But, the verbatim passages of repeated denials by the accused and repeated assertions by the “Mr Big”, that his Honour has reproduced in the above extract, standing alone, make it quite clear that any attempt to distinguish the present case from that of Clarke on the basis that the police conduct in Clarke was more benign is untenable.
Basal voluntariness in the present case – some general matters

And in R v Weaven (Ruling No 1), Weinberg stated:[60]
[43] If it were necessary to do so, I would have taken into account, in favour of the reliability of the confession, the evidence given by Christine Cook and others regarding the accused having returned Christine’s mobile telephone to her in the hours immediately after the deceased’s death. I would also have taken into account the fact that there were some matters mentioned in the scenario confession which, arguably, the accused would not have known unless he was involved in the murder. For example, the precise location of the deceased on the mattress might be viewed in that way. So too might the accused’s knowledge of the fact that there had been no accelerant used to start the fire.
[60] [2011] VSC 442.
I find that in all the circumstances of the present case, the evidence of esoteric knowledge is powerful evidence of the reliability of the confession of murder to the covert operatives.
Basal voluntariness in the present case - consideration
In addition to the matters discussed above, I have regard to the following further matters relevant to basal voluntariness.
First, it is to be noted that the accused referred for the first time to the murder investigation in a spontaneous statement to U50 on 9 February 2014 that he was a suspect (accompanied by a denial that he was guilty). Certainly, he made a free choice to raise this topic for discussion.
Second, although it is correct to say that D14 was much more persistent in his questioning than would be permissible in the context of a conventional police interview, it is equally apparent that D14 repeatedly told the accused that he was free to walk away at any time and that he did not have to speak about his past if he did not wish to. D14 continually emphasised that if the accused did not wish to continue, D14 would shake his hand and wish him all the best for the future and that the accused would not have any future difficulties with the gang.[61] This, of course, was against the background that in those circumstances he would not be able to join the gang and would therefore lose substantial financial rewards.
[61] Exhibit VDP8/VDP17, Appendix A (Transcript of Recorded Conversation between D14, U50 and Damien Jelicic on 10 February 2014) lines 112-146. Even after the initial confession, D14 again emphasised the accused’s persisting choice to decide whether to elaborate further, telling the accused “if you don’t want to talk … I would’ve preferred that you just said “sorry dude I don’t want to tell you” and just walked mate and we would’ve left it at that”: Exhibit VDP8/VDP17, Appendix B (Transcript of Recorded Conversation between D14, U50 and Damien Jelicic on 10 February 2014) line 441.
Third, the fact was that the accused had choices. The accused explored those choices by asking D14 (in relation to the news that police were actively targeting him), “How can you help this?” to which D14 answered that he could influence the murder investigation against the accused, that he could “do all sorts of shit”, that he had dealt with another gang member’s difficulties, and that he could “pay handsomely” to create a false witness for the accused.[62] D14 further explained that he was “not judging” the accused, and accepted that the accused was “not the first to fucking knock someone and you won’t be the last”.[63]
[62] Exhibit VDP8/VDP17, Appendix B (Transcript of Recorded Conversation between D14, U50 and Damien Jelicic on 10 February 2014) lines 328-333.
[63] Exhibit VDP8/VDP17, Appendix B (Transcript of Recorded Conversation between D14, U50 and Damien Jelicic on 10 February 2014) line 371.
No doubt such comments by D14 influenced the accused in making his choice but, as emphasised in Tofilau, such conduct by D14 does not lead to basal involuntariness.
Fourth, the statements made by the accused immediately after confessing to D14 indicate that he had made a choice (and what he considered to be an informed choice). In the course of a long conversation with U50, the accused explained that a number of factors had led to his choice to speak rather than remain silent. Thus, the accused explained to U50 that his reason for not having confessed earlier was that he “just didn’t want everyone to see me as ... [a sick fuck]”[64] and that D14 had said to him “I’m not judging you mate it’s alright shit happens”.[65] The accused stated: “I never would have said that to anybody mate honestly I was going to keep that til the grave you know … but I just had to be straight out he’s [sic] was that type of a person you know”[66] and “I was going to take it to my grave ... honestly I was honestly going to do it you know and to him looking at him, I just couldn’t say it, I just couldn’t”.[67] The accused emphasised that the way D14 said that he was not judging the accused “made me feel at ease, you know”[68] and that D14 “just made me feel so much fuckin’ at ease you know fuck cause when he said he’s not judging me and that I thought fuck”.[69]
[64] Exhibit VDP8/VDP16, Appendix G (Transcript of Recorded Conversation between U50, Damien Jelicic and D14 on 10/2/2014), lines 197-199 (“a sick fuck” is not transcribed but is heard on the recording, exhibit VDP9).
[65] Exhibit VDP8/VDP16, Appendix G, line 199.
[66] Exhibit VDP8/VDP16, Appendix G, lines 1053-1055.
[67] Exhibit VDP8/VDP16, Appendix G, lines 1093-1095.
[68] Exhibit VDP8/VDP16, Appendix G, line 201.
[69] Exhibit VDP8/VDP16, Appendix G, line 1175.
Fifth, the accused made clear to U50 that prior to confessing to D14, his reasoning process had been that he thought that D14 was a “genius”,[70] that D14 had said that “he can deal with it”[71] (meaning any murder investigation); and the accused had said to himself, “well, if that’s what he says …” and decided to confess[72] since it seemed to be in his best interests, and particularly since he really wanted to become a member of the gang,[73] and was told by D14 that he could have a “new life, a new start”.[74]
[70] Exhibit VDP8/VDP16, Appendix G, line 215.
[71] Exhibit VDP8/VDP16, Appendix G, line 219.
[72] Exhibit VDP8/VDP16, Appendix G, line 221.
[73] Exhibit VDP8/VDP16, Appendix G, lines 223-225.
[74] Exhibit VDP8/VDP16, Appendix G, line 225.
Sixth, the accused made further statements to U50 concerning his feelings after he had confessed such as:
·that it was like “something lifted”, like a weight off his shoulders[75]
·he felt “worthless before but I don’t no more”[76]
·D14 was straight out with him and “that’s what made me feel so good”[77]
·“I’m just glad that I said it to him”[78]
·“it was just a relief mate fuck”[79]
[75] Exhibit VDP8/VDP16, Appendix G, lines 204-205.
[76] Exhibit VDP8/VDP16, Appendix G, line 211.
[77] Exhibit VDP8/VDP16, Appendix G, line 227.
[78] Exhibit VDP8/VDP16, Appendix G, line 227.
[79] Exhibit VDP8/VDP16, Appendix G, line 1309.
Of course, these latter statements are in a different category from statements referred to above that are directed to his mental processes before he confessed. However, they were made very shortly after the confession to D14 and concurrently with further confessions to U50. They do tend to support the proposition that he had made a deliberate choice immediately prior to the decision to confess to D14.
Seventh, while I accept that the accused made some references to being “scared”, in the absence of evidence from the accused, utterances such as that he was “fuckin way too scared to say anything about it”[80] are most likely to have meant that he simply did not want others to know of something about which he was deeply ashamed. As noted above, the accused’s explanation to D14 that his reason for not having confessed was that he “just didn’t want everyone to see me as … [a sick fuck]”[81] is emblematic in this regard. Of course it will be for the jury to decide what construction they will in fact place upon such statements.
[80] Exhibit VDP8/VDP16, Appendix G, line 107.
[81] Exhibit VDP8/VDP16, Appendix G, lines 197-199 (“a sick fuck” on the recording).
Eighth, in Tofilau, Gummow and Hayne JJ concluded in relation to the appellant Tofilau, “[t]hat he may have felt under the pressure that he himself generated by his desire to join the gang and thus gain not only the financial benefits said to follow from that membership but also resolution of what otherwise appeared to be his inevitable prosecution for murder is not to the point”.[82] So here, in the present case, I conclude that the mere fact that the most advantageous choice was obvious to the accused is in no way determinative of the matter of basal voluntariness. The accused no doubt wanted: a “new life” as a member of the criminal gang with an exciting life style and his new “friends”; and to receive entitlements that had already accrued (such as his share from the “robbery”) and future entitlements as they accrued; and to have the benefit of D14 taking care of the murder investigation. But a choice was open to the accused to remain silent or to confess to the crime of murder and the fact that he took the above matters into account when making his choice does not affect the fact that he made a choice.
[82] Tofilau v The Queen (2007) 231 CLR 396, 426 [81].
Conclusion concerning basal voluntariness
What is missing from the accused’s written and oral submissions is any sufficiently detailed consideration of the content of the majority judgments in Tofilau concerning the interpretation and application of the McDermott statement in the context of a Mr Big operation. The McDermott statement is a broad statement of principle applicable to a very wide area of factual situations. Primary regard must be had to the majority judgments in Tofilau which specifically delineate the correct application of the general McDermott statement to the particular factual situations under consideration in Tofilau, which in turn closely correspond to the factual situation in the present case.
Having regard to all the facts and circumstances of the present case, and to the authorities to which I have referred including that of Tofilau v The Queen[83] in the High Court, I find that basal voluntariness is here established.
[83] (2007) 231 CLR 396.
The application of the fairness discretion in the present case
The nature of the discretion(s) to reject confessional evidence[84] has been considered by the High Court in a number of decisions, including in recent times in Swaffield[85] and in Tofilau (where the matter of discretionary exclusion was relied upon by only one of the four appellants).
[84] The term includes statements which include admissions but do not constitute a confession of guilt.
[85] R v Swaffield; Pavic v The Queen (1998) 192 CLR 159.
In Swaffield, it was confirmed that the fairness discretion is a discretion to exclude a confession if it would be unfair to the accused to admit it in evidence as distinct from a free floating inquiry as to fairness of police actions. Thus Toohey, Gaudron and Gummow JJ there stated:[86]
[T]he question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him ... Unfairness, in this sense, is concerned with the accused’s right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.
[86] (1998) 192 CLR 159, 189 [53], quoting Van der Meer v The Queen (1988) 62 ALJR 656, 666.
The relevance of the seriousness of the crime being investigated
Although at one time it may have been thought that, in the area of confessional evidence, one did not balance “unfairness” against matters militating in favour of admission such as cogency of the evidence,[87] it now appears clear that in exercising the fairness discretion, at least in the present context, one may take into account the matter of the seriousness of the crime being investigated. Thus, in the joint judgment of Gummow and Hayne JJ in Tofilau, their Honours stated:[88]
[112] A number of matters may affect the exercise of the discretion to exclude evidence of a confession which otherwise is admissible. So much is evident from what is said in Swaffield. But as noted earlier in these reasons, by reference to the decisions in Leeand Cleland, the chief focus of the discretionary questions that arise remains upon the fairness of using the accused person’s out-of-court statement, rather than upon the method of obtaining it. To the extent to which questions of disciplining police or controlling investigative methods are said to be relevant, proper weight must be given to the seriousness of the crime being investigated. Such considerations are relevant to the exercise of the discretion to exclude illegally obtained evidence. The relevance of the seriousness of the crime being investigated can be no less when considering the exercise of a discretion to exclude evidence that has not been unlawfully obtained.
(Emphasis added; citations omitted)
[87] By contrast with the Ireland/Bunning v Cross discretion where such a balancing process was always stressed (R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54).
[88] (2007) 231 CLR 396, 432.
Serious forensic disadvantage to a accused caused by a Mr Big operation
One important factor to be considered in the context of an application to exclude evidence of a Mr Big operation is the matter of any serious forensic disadvantage to the accused caused by the admission of such evidence.
In the present case, there would appear to be three relevant skeins of this problem. First, the aurally recorded conversation of the accused may alienate a jury by dint of its content of such things as profanity, extreme sexism, immoral views and anti-social views. Secondly, and more seriously, the conversation of the accused may contain admissions (or boasting) of past discreditable or frank criminal behaviour. Thirdly, the conversation and particularly the conduct of the accused may display an eagerness to participate in unlawful behaviour and, as the scenarios progress, in very serious criminality.
I raised these matters with counsel at the very outset of the voir dire hearing. I indicated that the ability to minimise the prejudicial effect was a matter that needed to be addressed before, rather than after, a principal ruling concerning general admissibility since the likely prejudicial effect of the evidence to be admitted would be an important factor to be taken into account when exercising the fairness discretion. I indicated that, subject to the wishes of the accused, I would be prepared to excise a very large proportion of the proposed prosecution evidence in order to mitigate the effect of the first two skeins referred to above.
After consequent discussions between counsel, it was agreed between them that most of the scenario evidence would be led by agreed short summaries of scenarios in neutral language (the “culling process”). In this particular case, this culling process proved very effective in largely obviating the first two skeins of prejudice. I mention that the accused indicated, for no doubt good forensic reasons, that he wished to have played some passages that the prosecution did not intend to play. If that resurrected any aspect of the first two skeins of prejudice, it did so as a matter of forensic choice.
Of course, the third skein of prejudice remains. I consider that the accused’s blatant conduct clearly directed to earning money by participating in conduct which was positively (though erroneously) believed to be criminal offending undoubtedly amounted to “discreditable conduct” within the meaning of s 34P of the Evidence Act 1929. I am fortified in that view by the remarks of Callaway JA (with whom Buchanan JA agreed on this point) in R v Tofilau (in the Victorian Court of Appeal).[89] His Honour stated:[90]
[89] R v Tofilau (No 2) (2006) 13 VR 28.
[90] (2006) 13 VR 28, 31-.
[2]     Where the Crown relies on a confession obtained by the mode of investigation exemplified by these five cases, attention must be given to the admissibility not only of the confession but also of the evidence of the scenarios leading up to the confession and to the directions that need to be given to the jury relating to the scenarios. The scenario evidence will show the accused as a willing participant in what he or she believed to be criminal activity. As these cases illustrate, that activity may include despicable crimes like blackmail and crimes of violence.
[3]     Such evidence is “[p]ropensity evidence” within the meaning of s 398A of the Crimes Act, as that expression was interpreted in R v Best. It is for the Crown to show that it is admissible, rather than for the accused to persuade the judge to exclude it pursuant to the Christie discretion. The test of admissibility is whether the probative value of the scenario evidence is such that it is just to admit that evidence despite any prejudicial effect it may have on the accused. The scenario evidence will usually be admissible for the same kind of reason that evidence of uncharged acts to prove relationship is usually admissible in cases of sexual offences. It is received in order to show how the confession came to be made.
[4]     The analogy with relationship evidence in cases of sexual offences does not stop there. The jury should be directed as to why the evidence of other purported criminal activity is admitted and warned against using it in an impermissible fashion.
[5]     In R v BAH (No 2) this Court reaffirmed the three elements of the direction that should be given to a jury when the Crown relies on evidence of uncharged acts to prove a sexual relationship. The second element is unlikely to be important in relation to scenario evidence, but the first and third elements are just as important. To adapt the language of King CJ in R v Dolan, it is incumbent upon the trial judge to direct the jury as to the use which they are entitled to make of the evidence of other purported criminal activity and, even more importantly, the use to which such evidence must not be put. The jury will have learned that the accused was a person willing, and in some cases eager, to participate in organized crime. They need to understand the limited purpose for which that evidence is before them and that they must not engage in propensity reasoning. That is a real risk in cases like this, especially where the scenarios involve apparent violence.
[6]     It should therefore be explained to the jury that:
(a)    the evidence of the accused’s participation in other purported criminal activity, and his or her attitude to that activity, is admitted solely to establish the context and setting in which the alleged confession came to be made; and
(b)    the jury must not reason that, because the accused was a willing participant in what he or she believed to be other criminal activity, the accused is the kind of person who is likely to have committed the crime charged.
[Citations omitted]
I therefore consider that the test of admissibility of the particular passages of dialogue remaining after the “culling process” is that laid down in s 34P(2) of the Evidence Act 1929 (which is, of course, a better outcome for the accused than the mere availability of the Christie discretion).
In the High Court in Tofilau, the Justices referred to this matter of serious forensic disadvantage as relevant to the fairness discretion but declined to interfere with the exercise of that discretion by any of the four trial Judges.[91]
[91] (2007) 231 CLR 396, 431-432 [110]-[111] (Gummow and Hayne JJ); 410 [24] (Gleeson CJ); 526 [406]; 529 [414] (Callinan, Heydon and Crennan JJ).
In the present case, the scenario evidence that the prosecution seeks to tender (after the “culling process” has been applied) must run the gauntlet of s 34P(2)(a) of the Evidence Act 1929, in addition to all other objections as to admissibility.

In relation to this particular matter, I indicate that I find that the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
I am further satisfied that the probative value of the evidence sought to be admitted for what I consider to be a permissible use under s 34P(2)(a) (namely that of properly presenting required background to, and context of, the confessional statements) does substantially outweigh any prejudicial effect it may have on the accused.
I will, of course, give appropriate directions to the jury in relation to these matters in the course of the summing up.
Conclusion as to the exercise of the general fairness discretion
I note that a substantial number of Australian courts have now admitted evidence of Mr Big covert operation, having specifically found it not unfair to do so. Having regard to all of the facts and circumstances of the present case, I decline to exercise the general fairness discretion to exclude the evidence.
The public policy discretion
It has become clear that the Ireland/Bunning v Cross,[92] or public policy discretion, may be invoked not only in circumstances where police conduct is positively unlawful, but also when it is seriously unfair and improper.[93] I adopt that broad approach to the public policy discretion, favouring the accused as it does.
Does the use of deceit and/or psychological pressure by a police agency lead to discretionary exclusion?
[92] R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54.
[93] Bunning v Cross (1978) 141 CLR 54, 75 (Stephen and Aickin JJ) (lines 8-9); R v Lobban (2000) 77 SASR 24, 30 (Martin J); Cleland v The Queen (1982) 151 CLR 1, 19-20 (Deane J); Ridgeway v The Queen (1995) 184 CLR 19, 41-42 (Mason CJ, Deane and Dawson JJ); Nicholas v The Queen (1998) 193 CLR 173, 195 [33] (Brennan CJ); 216 [100] (McHugh J); R v Rockford (2015) 122 SASR 391, 398 [32] (Stanley J).
Tofilau v The Queen is authority for the proposition that the use of deceit and/or psychological pressure by a police agency in course of a covert Mr Big operation does not necessarily lead to exclusion pursuant to the public policy discretion.
Of course, the matter remains one of degree. In R v Tofilau (No 2) Vincent JA observed:[94]
[94] (2006) 13 VR 28, 60-62.
[149] Of course, there are and must be limits to the kinds of tactics that can be employed by investigating agencies in their endeavours to secure evidence of wrong doing. Knight Bruce V-C addressed this notion long ago, in 1846, in a passage quoted in the joint judgment of Aickin and Stephen JJ in Bunning v Cross:
The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination … Truth, like all other good things, may be loved unwisely–may be pursued too keenly–may cost too much.
[150] Our society has changed dramatically since his Honour expressed that view and the rate of change appears to be accelerating. In many respects, the level of sophistication of criminals, the nature of the matters to be investigated and the techniques developed by investigative bodies to deal with them have altered to respond to and reflect those changes. It has to be acknowledged that, as a matter of practical reality, the successful investigation of criminal conduct will from time to time necessitate the use of covert operatives, subterfuge and the conduct of what are colloquially described as “sting operations”. Provided that the investigator’s activities are lawful and consistent with the underlying principles and values of the law, no problem arises.
[151] The Victorian Court of Criminal Appeal said with respect to these concepts in Warrell:
These concepts of voluntariness, fairness, and public policy are integral to the operation of our criminal justice system. They are designed to ensure that any finding of guilt arrived at, on the basis of confessional evidence, is not only reliable, but that the evidence itself has been obtained in a socially acceptable fashion. It is important to keep in mind, in this context, that they are concerned not only with the recognition and protection of the rights of those who may be suspected of the commission of criminal offences, but that any such finding is not surrounded by an aura of possible injustice which compromises both the system and the society which supports it.
[152] They represent a very carefully constructed balance between the respective rights and obligations of the State and the individual and have been developed to ensure that reliability and integrity is maintained in a system directed to the protection of the rights of both the community and the individual and to the advancement of the interests of justice. On the one hand, there is an obvious need to bring to account those who have committed serious offences if the objectives of the criminal justice system are to be achieved and societal values vindicated, but, on the other, it cannot be forgotten that those values incorporate the rights of the individual and, in part define the nature of the relationship between the citizen and the community in which he or she resides. The balance is a delicate one and whether or not it has been maintained in a given case can only be determined after careful consideration is given to all of the circumstances relating to the particular matter. [Citations omitted]
The relevance of the seriousness of the crime and cogency or reliability of the tendered evidence
It has always been the case that when exercising the public policy discretion, one takes into account matters militating in favour of admission such as the seriousness of the crime being investigated and the cogency or reliability of the tendered evidence, and I do so. These matters strongly militate toward admission in the present case.
Conclusion concerning the public policy discretion
As noted above in the context of basal voluntariness, the facts in the Clarke appeal match most closely the case of the present accused; I consider that the very long passage in the joint judgment of Callinan, Heydon and Crennan JJ in Tofilau[95] on the topic of discretion concerning Clarke points strongly in favour of declining to exclude the evidence in the exercise of the public policy discretion.
[95] (2007) 231 CLR 396, 523-529 [391]-[416].
Having regard to all of the facts and circumstances of the present case, I decline to exercise the public policy discretion to exclude the evidence.
Conclusion concerning the admissibility of the evidence concerning the covert Mr Big operation
It remains to note that Mr Algie placed considerable weight on the decision of the Canadian Supreme Court in R v Hart[96] (decided since the decision of the High Court in Tofilau) which allowed an appeal in a Mr Big case with facts rather different from the present (particularly including the fact that there was there no evidentiary support for the reliability of the confession in that case).
[96] [2014] 2 SCR 544. One finds that an appeal in the case of Hart was heard in conjunction with the hearing of the appeal in R v Mack [2014] 3 SCR 3, and by the same bench of the Supreme Court. The judgment of the Court in Hart was delivered first, on 31 July 2014. The judgment of the Court in Mack dismissing the appeal in that case was delivered later, on 26 September 2014 and separately reported. I was not referred to the decision in Mack by counsel; that is unfortunate since I consider that the two decisions should be read together.
I have alluded above to differences between Australian Mr Big operations and many of the operations carried out in North America. One important difference is that, in North America, it has been quite normal for the various contacts between covert operatives and the accused not to be aurally or visually recorded, with such recording only being made of the eventual confession to “Mr Big”. Indeed, in R v Hart,[97] the unfortunate situation emerged of the alleged “April 10 confession” not being recorded, and the accused denying that it had ever occurred. By contrast, the Australian methodology, as adopted in the present case, requires that all contact between covert operatives and the accused be aurally recorded. In the present case, the eventual confession to “Mr Big” was both aurally and visually recorded.
[97] [2014] 2 SCR 544.
Another important difference is that in North American cases, it was quite normal for the covert operatives to impress upon the accused the gang’s propensity for violence and to stage demonstrations of severe violence apparently being meted out to a person who had had the temerity to lie to “Mr Big”. Thus the joint judgment of the Canadian Supreme Court in Hart stated:[98]
[59] Throughout the operation, the suspect is also told that the organization demands honesty, trust and loyalty from its members. An aura of violence is cultivated to reinforce these values. Officers teach the suspect that those who betray the trust of the organization are met with violence. They do this by telling the suspect that the organization kills “rats,” or by exposing him to simulated acts of violence perpetrated by members of the organization against other undercover officers as punishment for imagined betrayals (see, eg, Moore, Copeland and Schuller, at pp 356-57). R v Hathaway, 2007 SKQB 48, 292 Sask R 7, provides a stark example. In that case, undercover officers simulated an assault on a woman who had crossed the criminal organization. During the beating, officers threatened to kill the woman, her husband, and her infant child. The accused watched as undercover officers threw the bloodied woman into the trunk of a car.
…
[78] Finally, Mr Big operations create a risk that the police will resort to unacceptable tactics in their pursuit of a confession. As mentioned, in conducting these operations, undercover officers often cultivate an aura of violence in order to stress the importance of trust and loyalty within the organization. This can involve — as it did in this case — threats or acts of violence perpetrated in the presence of the accused. In these circumstances, it is easy to see a risk that the police will go too far, resorting to tactics which may impact on the reliability of a confession, or in some instances amount to an abuse of process. (Emphasis added)
[98] [2014] 2 SCR 544, 571; 577-578.
By clear contrast, in the present case the matter of possible violence was quite muted. There was no doubt a background awareness by the accused that the gang was well funded and that it had traded in firearms, including a submachine gun. Also, in one scenario, a gang member ostensibly hit with a crow bar the owner of premises when he unexpectedly returned home during the “robbery”. However, no threats were made to the accused at any stage. To the contrary, D14 made it very clear that the accused could leave the gang with no adverse consequences whatever; and the accused never made any statement evincing disbelief of those assurances.
It is also important to note that in the scenario concerning the expulsion of a gang member in the present case, the transgressing member was only evicted with some shouting and profanity; he was told to hand over his car keys and to never have any further contact with the gang. He was not threatened with future violence and, after he had left, it was made plain to those present (including the accused) that there was not going to be any violent consequences for him and that the loss of his car and expulsion from the gang was his only punishment.
I find it unnecessary to consider at length the decision in Hart (or other North American decisions) for two reasons. First, I am bound to accept the law as propounded by the High Court in Tofilau. And secondly, even if one were to approach the present case in the manner adumbrated in Hart, I consider that I would still come to the same decision here. I note that in Hart the Court stated:
[105] After considering the circumstances in which the confession was made, the court should look to the confession itself for markers of reliability. Trial judges should consider the level of detail contained in the confession, whether it leads to the discovery of additional evidence, whether it identifies any elements of the crime that had not been made public (eg, the murder weapon), or whether it accurately describes mundane details of the crime the accused would not likely have known had he not committed it (eg, the presence or absence of particular objects at the crime scene). Confirmatory evidence is not a hard and fast requirement, but where it exists, my view, the groups of people that present the greatest danger of falsely confessing during conventional interrogations warrant enhanced scrutiny in the context of Mr Big operations. It can provide a powerful guarantee of reliability. The greater the concerns raised by the circumstances in which the confession was made, the more important it will be to find markers of reliability in the confession itself or the surrounding evidence. (Emphasis added)
The Court later returned to this matter of “markers of reliability” and found that none were present in that case and that there was “a complete lack of confirmatory evidence”.[99] This is very different to the situation in the present case where there is ample confirmatory evidence as explained above.
[99] See Hart at 598-599 [141]-[144]; 600 [147].
I also note the following passages, with which I do not disagree, but which, in the present circumstances, need not be considered further:[100]
[108] In the end, trial judges must weigh the probative value and the prejudicial effect of the confession at issue and decide whether the Crown has met its burden. In practice, the potential for prejudice is a fairly constant variable in this context. Mr Big operations are cut from the same cloth, and the concerns about prejudice are likely to be similar from case to case. As a result, trial judges will expend much of their analytical energy assessing the reliability of the confessions these operations generate.
[109] Determining when the probative value of a Mr Big confession surpasses its potential for prejudice will never be an exact science. As Justice Binnie observed in Handy, probative value and prejudicial effect are two variables which “do not operate on the same plane” (para 148). Probative value is concerned with “proof of an issue”, while prejudicial effect is concerned with “the fairness of the trial” (ibid.). To be sure, there will be easy cases at the margins. But more common will be the difficult cases that fall in between. In such cases, trial judges will have to lean on their judicial experience to decide whether the value of a confession exceeds its cost.
[110] Despite the inexactness of the exercise, it is one for which our trial judges are well prepared. Trial judges routinely weigh the probative value and prejudicial effect of evidence. And as mentioned, they are already asked to examine the reliability of evidence in a number of different contexts, as well as the prejudicial effect of bad character evidence. They are well positioned to do the same here. Because trial judges, after assessing the evidence before them, are in the best position to weigh the probative value and prejudicial effect of the evidence, their decision to admit or exclude a Mr Big confession will be afforded deference on appeal.
[100] R v Hart [2014] 2 SCR 544, 588.
Finally, I note that that the prosecution submission here does not seek to deny the importance of evidence of reliability of the confession. In referring to the decision in R v Hart, the prosecution submits:[101]
Reliability underlies the development of the law in this area, both historically and in recent times. The joint reasons in Swaffield suggest the existence of a freestanding rule excluding confessions that are not reliable. Concern with reliability was the rationale of the recent decision by the Supreme Court of Canada [Hart] to establish a new rule of evidence requiring that the prosecution demonstrate that confessional evidence obtained using undercover methods of the type in issue is more probative than prejudicial.
[101] Prosecution outline of argument at [33].
The prosecution outline then proceeds to make the point that in the present case the confessional evidence is reliable both in the sense that the words uttered by the accused were accurately recorded and in the sense that the confession is very unlikely to be false for the reason that there is strong evidence of esoteric knowledge by the accused.
Having regard to all of the facts and circumstances of the present case, I rule that evidence concerning the covert Mr Big operation is generally admissible and I decline to exclude it.