R v Kemp, Darren

[2008] NSWDC 312

CITATION:	R v Kemp, Darren [2008] NSWDC 312
HEARING DATE(S):	24/07/08 25/07/08
JUDGMENT DATE:	29 July 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	The tender of recordings made by the undercover police in Cell 3 at the Newtown Police Station on 19 February 2005 is rejected.
CATCHWORDS:	Criminal law - trial - interlocutory application - exclusion of evidence of admissions - accused arrested for surreptitious questioning - listening device lawfully installed in police cells - accused placed in designated cell - undercover police operatives inveigle admissions from accused - LEPRA provisions reviewed - unlawful arrest - arrest for unlawful purpose -absent lawful arrest investigation period for questioning unavailable - distinction between 'fishing trip' and investigation - difference in focus between s.139 and s.90 Evidence Act 1995
LEGISLATION CITED:	ss 90, 138 Evidence Act 1995 Part 9 Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) Crimes Act 1900 Bail Act 1978
CASES CITED:	Williams v The Queen (1986) 161 CLR 278 at 306 per Wilson and Dawson JJ Cleland v The Queen Bales v Parmeter (1935) 35 S.R. (NSW) 182 at pp188-189 Tofilau v R 238 ALR 650 Em v R 239 ALR 204 R v Broyles [1991] 3 S.C.R. 595 R v Mullah [2005] NSWSC 358 R v Swaffield 72 ALJR 339 R v Collins [1987] 1 SCR 265 v Herbert [1990] 2 SCR 151
PARTIES:	Regina Darren Michael Kemp
FILE NUMBER(S):	07/21/0242
COUNSEL:	Crown: K Magnus Counsel: J Watts

JUDGMENT

An application pursuant to S.90 Evidence Act 1995 to exclude evidence of admissions.

1. Darren Michael Kemp (the Accused) has been charged with four counts arising out of the robbery in company of a security guard of two Westpac Bank automatic teller machines (ATMs) containing nearly $680,000 of Westpac’s money. The robbery occurred at the Homebush Bay Showground during the 2005 Easter Show.

2. The theft of the ATM’s occurred on 15th March 2005. Twenty-three months later, on 19th February 2007 the accused was arrested by Dt David Willey on the direction of Dt Sgt Peter Smith. Both officers were members of Strike Force Piccadilly, formed in August 2005 to investigate a spate of thefts of ATMs via means of ram-raids, towings off mountings and other smash and grab type activities. Dt Smith and his team were in charged with investigating the Easter Show ATM thefts as one of several designated investigations falling within Strike Force Piccadilly.

3. Shortly after his arrest the accused was housed in a designated cell (cell No. 3). A listening device recorded conversations he had with two undercover police officers (Sean and James). During the course of these conversations the accused, on the Crown case admitted to substantial involvement in the heist of the ATMs. The Crown seeks to tender the recordings of those conversations. The accused objects saying that the circumstances in which the admissions were made, now make it unfair to him to use the evidence thereby obtained (s90 Evidence Act 1995).

The Circumstances in which the Admissions were made

4. As early as 5th August 2005 police had information contained in a record of interview with one Tim Kennedy putting the accused as a member of the group that stole the ATMs. In October 2006 Strike Force Piccadilly received a copy of this interview. In 2006 on three occasions, the first being 26 October, officers of Strike Force Piccadilly spoke to Kennedy at Junee Correctional Centre. On 29th November 2006, apparently after Kennedy had been released, a 3- page statement was taken from him effectively adopting the contents of the earlier record of interview. Kennedy, before going into custody, had boarded at the accused’s residence. The accused lived in Housing Commission accommodation at Leichhardt. After Kennedy’s release from custody there was heightened interest by police in the accused’s movements and conversations. Police hoped the release of Kennedy would excite some chatter from the accused and his camp.

5. Thus listening device authorization obtained on 16th February was not the first occasion listening devices had been authorized for and used against the accused. Police concede their previous covert surveillance of the accused and monitoring of his conversations advanced their investigation not one jot. The evidence is silent on whether Kennedy, once released returned to the accused’s residence or company.

6. Dt Sgt Smith’s evidence is that he believed once he had Kennedy’s adoption of the interview that he had sufficient evidence to charge the accused. He had what Dt Smith described as “hearsay evidence”… of “a direct admission by the accused.” Dt Smith was confident the claimed admission would become evidence. So I take it that on the prosecution case, Kennedy was reporting what the accused said to him, or within his hearing. However, I understand the Crown is not calling Tim Kennedy. Neither the evidence on the voir dire, nor either side has sought to explain the absence of Kennedy from the trial. Neither side has sought to tender Kennedy’s ROI or his statement adopting the ROI. I do not know what the purpose was of the police interview with Kennedy, nor the circumstances in which he volunteered information about the accused. I do not know whether Kennedy is the man the accused refers to in his conversations with the undercover operatives (see later). Thus, in all the circumstances it becomes very difficult to assess what impact Kennedy’s claimed capacity to give evidence of a direct admission by the accused means. Nor can I gauge what would have been reasonable for Dt Smith to draw from Kennedy’s potential contribution to the prosecution case when he (Smith) was assessing the strength of the prosecution case for purposes of assessing whether he had sufficient evidence to charge the accused. That would depend upon the contents of the admission’s capacity to put the accused at the crime scene participating in the crime. While, as matters stand, I cannot be satisfied Kennedy’s potential evidence would have amounted to evidence of an accomplice, his credibility was on any view a matter that was well open to attack. He had criminal convictions. It is unclear from the evidence whether he also had motive to fabricate. I have concluded Dt Sgt Smith was aware that Kennedy’s admission did not come without baggage attached to it.

7. Other potential prosecution evidence relied upon by Dt Sgt Smith included evidence from the security guard who was said to have been robbed. There is certainly evidence he was present during the commission of the theft and restrained by two of four offenders. His evidence is the men were speaking to each other in a foreign language. Two of them spoke to him in English. He was unable to say whether either spoke English with a foreign accent. He ruled out Asian and Arabic languages. All wore balaclavas covering their heads and faces save for a small area including eyes and nose. He determined the driver of a forklift (used to lift a container housing both ATMs) was about 20. My understanding of his evidence is that was based upon the portion of the face visible to him. His evidence was all four offenders wore florescent orange vests. These vests did up at the front. He was unable to give further detail of the vests. From the Crown’s viewpoint he presented as a witness, weak as to detail and as to capacity to give clear evidence of the detail he was able to recall. There was no application by the Crown to cross-examine him pursuant to s.38 of the Evidence Act. Therefore I have assumed the prosecution is content that all matters of relevance contained in his statement are before the Court. If so, from the point of view of Dt Smith, the security officer’s statement was not a statement that incriminated the accused. Indeed, the defence will be relying on his evidence to exculpate the accused.

8. There was evidence from a plainclothes constable linking the accused with Tim Kennedy’s car in January 2005 – that is about 2 months before the theft of the ATMs. She saw the accused access from the boot of that car a florescent orange vest similar to those frequently used by men and women working on outdoor and building sites. The accused told her the vest was Kennedy’s. Nonetheless that amounted to some circumstantial evidence linking the accused to a vest that may have been similar to a vest worn by one of the offenders. This, however, could hardly be described as a strong strand of circumstantial evidence. Dt Smith no doubt realized as much when considering his case against the accused at the time he made his decision to arrest.

9. Subsequent to the accused’s arrest a search was done of his residence. Among items found were orange florescent vests with silver stripes. These vests do up at the front, thereby having two features in common with the vests described by the security officer. Of course Dt Smith did not make his decision to arrest the accused upon items of evidence yet to be discovered.

10. Prior to the arrest, police also obtained evidence from two men unconnected with the robbery. One, Thompson, had sold a boat and trailer to the accused for $2,000. The other, Baissari, had sold a second hand blue Commodore to the accused for $9,000. On the voir dire, the date of either purchase is unclear, but I have assumed it is sufficiently proximate to the robbery to support a prosecution claim of unexplained wealth. It may be (although is not clear in the voir dire evidence) that information of these purchases originated from Kennedy. If so, the purchases may also corroborate the evidence of Kennedy – assuming he gave evidence of prior knowledge of the purchases. Of course, if it is unexplained wealth, it is a very modest wealth by comparison with the sum of money said to have been taken. No doubt Dt Smith was also aware of the problems associated with this piece of circumstantial evidence.

11. My assessment of the evidence existing at the time Dt Sgt Smith made his decision to arrest, is that at law it would be sufficient to justify an arrest. That is to say, there was sufficient evidence to ground a suspicion that the accused was one of the four men at Homebush Bay participating in the theft of the ATMs. However, in the absence of Kennedy (always a possibility with “give-ups”) as a witness at trial, a verdict by direction must have been considered a distinct possibility; failing that a Prassad direction would otherwise have been inevitable. Further, Dt Sgt Smith well knew once the accused was arrested police investigators were allowed a four hour period in which to question him. Given the accused’s prior history with the police, it was unlikely the accused would do himself any harm in a formal interview conducted by police. I am satisfied Dt Sgt Smith did not anticipate any formal record of interview he conducted with the accused would in any way strengthen the prosecution case. Further, Dt Sgt Smith must have considered the real possibility the accused would not participate in any interview at all. I am comforted in these findings by recalling that Dt Sgt Smith allowed himself only half an hour for an E.R.I.S.P.

12. The accused’s arrest was planned before 12th February 2007. On that date officers from Piccadilly had surveilled the accused at the rear car park to Fords Pharmacy at 247 Kings St. They had observed him enter the Pharmacy and leave. They knew he was a regular at the Pharmacy, for he was on a methadone maintenance program. Ford Pharmacy was his collection point. Shortly after the shop opened was his preferred collection time. He collected twice weekly. Monday mornings were one of his collection days. The accused had been the subject of surveillance over some months – whether continuously or otherwise I know not. No doubt one of the fruits of this surveillance, together with police intelligence, was this particular aspect of the accused’s weekly habits. Although there was no urgency for the arrest of the accused at some point the 19th February was settled on.

13. On 16th February officers of Piccadilly approached Justice Simpson seeking authorization for a listening device. The warrant was sought so that two undercover operatives using assumed names would be able “to record or listen to the private conversations of NSW Police undercover operative using the assumed name ‘Sean’, NSW Police undercover operative using the assumed name ‘James’, Darren Kemp and any other person or persons participating in such conversations in cell three (or another cell that may be occupied by Darren Kemp at short notice…) at Newtown Police Station, ….” The warrant would survive, if needed, until 9th March.

14. I note Her Honour does not appear to have been informed of the circumstances in which Darren Kemp would come to be in a cell at Newtown Police station at short notice. I do not regard the terms of the warrant as some judicial imprimatur for the course of action followed by Dt Smith and the undercover police operatives.

15. A few days prior to the accused’s arrest, Dt Sgt Smith briefed two undercover operatives. By the time they entered the cell they had been briefed about the accused demeanour and personality, particularly his trait of speaking about himself and his criminal activities, as well as general other activities.

16. On the 18th February the listening device was installed into Cell 3 at the Newtown Police Station by police technicians. Dt Sgt Smith who ultimately charged the accused, had no intention of seeking a formal interview with the accused until some period after what he called covert surveillance had occurred, by which I understand him to mean until the undercover officers had had an opportunity to interact with the accused.

The Accused is arrested

17. At 6:30am on 19th February 2007 Dt Sgt Smith conducted a briefing session with the arresting police. By 8:30am police were in position. By 9:00am surveillance police were reporting in that the accused was on his way. By 9:15a.m. the accused’s arrest had been effected. By 9:42am he had arrived at Newtown Police Station and been conveyed to the custody area.

18. Dt Willey, the arresting officer was well aware the accused was to be placed in a cell with undercover operatives. He knew that was one of the purposes of the arrest. He also believed the accused would be charged with the offences he was suspected of committing at Homebush Bay on 15th March 2005.

19. At the time of his arrest police involved with Strike Force Piccadilly knew he was on a methadone maintenance program. They knew he was aged 45, and was walking with a limp.

20. At 9:46am the accused name was entered into the COPS computer at Newtown Police Station as a detained person. The entry of his name and date of birth into the computer system triggered other information within the storage system of the computer databases. His C.N.I. and M.I.N. were automatically displayed on the computer screen. I am satisfied he supplied other information on this first computer screen form, including his wife’s name, his Housing Commission address, and his home telephone number. At 9:47am the accused was placed in the dock. At 9:48am the Caution and Summary of Part 9 of Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) was read to him and a copy given to him.

21. I note some important matters were raised in the LEPRA Part 9 summary.

• While in police custody you do not have to say or do anything but anything that you say or you may do may be used in evidence;
• The police will help you to contact a lawyer of your choice if you want legal advice or to ask that a person come to where you are;
• The police will help you to contact a friend, a relative, a guardian or someone else so you can tell them where you are or ask them to come to where you are;
• The police cannot ask you to say or do anything while waiting for your lawyer, friend, relative, guardian or other person to come to where you are.
• The police do not have to wait for more than two hours for someone to come. If the police think someone’s safety is at risk they do not have to wait for two hours. There are other circumstances when the police do not have to contact or wait for someone to come.
• The police will keep a record of what they do with you while you are in their custody. You can look at this record provided it is reasonable to let you do so. The police will give you a copy of this record when you are released or taken before a justice, magistrate or court.

22. The time entered on the Part 9 summary given to the accused is 10:53am. The Custody Officer, Leading Senior Constable Brett McKenna accepts this time is wrong. He claims it was entered by mistake, and that he really meant 9:48. There is a second entry 10:55am, representing he says, the time at which he signed the document. Frankly, I have difficulty accepting his explanation. He explains the error by claiming the clock in the custody area was incorrect. But for the computer-generated entry of 9:48am on the Custody Management Record, I would reject his explanation out of hand. As Custody Manger he would be conscious of the time the Local Court started working. 10:53 would be an hour after the Local Court was in action. 9:48am was 12 minutes before the usual starting hour for most courts. He would have been busy preparing prisoners for the 9:30am call-over (assuming there was one) or for the 10:00am mentions (assuming that was yet to come).

23. I have examined his records in respect of this accused, his then detainee, carefully. Frankly they are best classified as seriously inadequate, and as I understand the requirements to be, fall far short of the requirements imposed upon him and his staff. They are virtually useless in determining the movements of the accused within the Newtown Police Station Custody area from 9:51am.

24. At 9:50am a brief assessment is commenced of the accused including a visual assessment. He was also asked about his medication at 9:50am. At 9:51am the brief assessment is completed. Each of these times referred to thus far is computer generated when the relevant computer screen form is engaged. For that reason I accept the LEPRA Part 9 Summary was read, otherwise complied with and the enquiries referred above to were made.

25. The first detainee inspection/assessment record made of him is at 11:28am. It is said the frequency of inspections is 30 minutes, but the times recorded do not bear that out. Firstly he had been in custody at Newtown Police Station since 9:42am. The next observation made of him is at 12:18pm and the next after that 14:40pm. On those occasions he is recorded as being in the Dock. At 18:29pm the next observation places him in an unidentified cell. On the other hand the movement record for the whole of the accused’s time in custody at Newtown Police Station only records two moves: 9:47am the dock; and 21:12pm when Cell 3 is entered as the New Location. One could be forgiven for interpreting the records that he remained in the dock until at least after 2:40pm when he was removed to a cell, perhaps then being moved from that cell to Cell 3 at shortly after 9:00pm.

The Accused’s Account.

26. The accused complains that he was roughly handled during his arrest, by being thrown against an industrial bin and being pushed up against a roller door. Dt Willey is a tall, physically very impressive man. He was accompanied by another thick-set officer. Two other officers arrived moments after the formal arrest had been effected. The accused is short in stature, overweight, and on the day of arrest wearing a surgical stocking because of blood clots in his leg. He was suffering the after affects of a mild stroke. I have no doubt he was handled firmly when handcuffed. But when he arrives at the police station he describes himself as chatting to the Custody Officer who he knew. Had he been unnecessarily manhandled as he said, it is likely he would have been less gregarious and more complaining. In the course of speaking to undercover operative Sean, he said they “got him between a big industrial bin and a roller door. They were trying to make me face the roller door while I was waiting on a car, so I went fuckin livewire and started struggling with em. Not standing against the fucken wall.” I do not regard that account given by the accused on the day of his arrest as consistent with his claim to be thrown against the bin and pushed up against the roller door.

27. The accused claimed he had told the arresting officer he had not been to the Easter show for 15 years. Although that evidence was not supported by either officer at the arrest, I do not rule it out. Within an hour and a half, the accused was telling the undercover operative Sean that was what he said at his arrest. It is certainly not beyond the accused as he presented in court. Neither arresting officer made his statement until a couple of months later. It is unlikely either remembered that detail.

28. The accused claims that once in the Custody Area he was taken to the dock. McKenna, was called into an office, emerged after a short time and told the offender he was expecting a prison truck with prisoners on board from Silverwater and that he’d have to just put me in the cell for a couple of minutes while he processed and sorted them out. The accused’s case was he was not given his LEPRA rights. However, in the course of his discussion with Sean, the accused concedes he was asked for his home phone number, who was his next of kin.

29. For reasons I gave earlier I am satisfied he was properly entered into the computer custodial records, read and advised of his LEPRA rights, and shortly thereafter moved to Cell 3. The record shows that within 9 minutes of his arrival such a move was possible. I note, for example, that he tells undercover operative Sean that he was the “only person out in the docks, and [he] should have been left there and charged or whatever they were gonna do.” I do not reject his account that it was shortly after he arrived that he found himself in the cells with one undercover police operative. What I do reject, however, is his claim that that event occurred prior to his being advised of his rights, and the limitations placed upon his rights.

30. The accused claimed that he was concerned for his personal safety during the time he was in his cells. As I understand it, this was the accused’s first period of incarceration in some years. I accept that he may well have been concerned for his safety. He was 45, in abominable physical condition. He was well aware of his own physical limitations. For a while there was one, and subsequently two apparent prisoners sharing the cell with him. The first had expressed, because of a desire to sleep, a wish to keep the cell to himself – which, so far as the accused was concerned, had been ignored. His descriptions of a prisoner’s mood suddenly changing, or resentments being formed for reasons of refusing to engage, - or indeed engaging too much – with the other prisoner or prisoners are well known. Many prisoners have difficulty with anger management. Paranoid thinking disables many others. Some prisoners have problems with both. I have no doubt this accused from prior custodial experience has a life experience of this that puts him on his guard. I do not regard his heightened sense of awareness as being caused by the undercover operatives (acting as undercover operatives), but simply by the presence of two apparent prisoners he didn’t know or trust being in the cell with him.

31. During his conversations with the undercover operative Sean, the accused took the role of a wronged accused, who police were trying “to fit up” with something that “happened a couple of years ago”, namely stealing ATMs from the Easter Show. He told police he hadn’t been to the Easter show for 15 years. Undercover operative Sean initially appeared to accept him at his word. Thereafter follows conversation as Sean explains what circumstance brought him to the cells. The accused appears to give Sean the benefit of his own (the accused’s) experience as to what is likely to follow through the day and the investigation Sean is likely to have. In the course of telling Sean of the need to watch the police, the accused concedes that there were a couple of things in his own wallet that he was a little concerned about.

32. Sean doesn’t pursue the accused’s concern. The conversation shortly shifts to the accused family, and their situations. There is further conversation about how the accused handled himself in various custodial situations. Some 12 pages into the interview, Sean asks:

Q: You reckon someone’s give you up?

33. Thereafter the accused claims “someone’s told lies” and seeks to put the blame on the daughter’s ex-fiance. He does express concern about being considered for being “knowingly concerned” or “knowing something”. The conversation wanders, and Sean brings it back to whether the accused’s “daughter’s ex could have told lies to get the heat off him?” The accused says: “Well he, he, he has tried.”

34. This conversation is interrupted by the intrusion of the second undercover operative, James, into the scene. The two undercover operatives role play belonging to a group prepared to be involved in unlawful activities, using a truck waiting to be loaded with contraband of some kind. A conversation ensues between the two, with the odd comment added by the accused. At one point James is waxing philosophical and says:

…it’s no one’s fault, I mean it was an earn and that was it, you know that's all. It went fuckin bad. Can’t win em all can ya?”

to which the accused replies:

No, no. Got me for fucking stealin ATMs from the fuckin Easter Show.

35. James is quite happy to focus on the accused’s account. In describing the police who arrested him the accused comments that “these demons [meaning police] look like old-school demons like task force or homicide you know.” (Of course, he was correct.)

James asks: “What did you kill some cunt while you were doin it?

Accused: No, no, no, no but a guy that was involved, he is in at the moment for a homicide see.

36. The accused thereafter speculates whether that person was motivated to deal with police, because he is facing a murder charge while paroled on an [unrelated] attempted ATM theft. The accused explained that a special task force had been established because of the sums of money contained in ATM’s. James postulates,

“But they don’t have much money in them do they ATMs. I’ve often wondered why blokes do em.”

37. The accused responds that a full size one would hold $240, 000. Sean chips in “Bullshit”. The accused’s response is I took two. Thereafter he gives detail, which if accepted would establish that he had a very good knowledge of the circumstances in which the two ATMs were taken from Homebush Bay. During submissions I described the accused as taking on the role of a raconteur. It stuck me he was very willing to tell the undercover operatives about the circumstances of the theft of the two ATMs and his role in it.

38. The interaction between the undercover operatives and the accused ends when Dt Smith arrives to remove the accused from Cell 3 for the purposes of conducting an E.R.I.S.P. between himself and the accused.. The transcripts of the conversations between the accused and undercover police have been tendered in the voir dire. The only reference to time on each transcript is 9:35a.m. and the duration of each particular track. The 9:35am time cannot be the time at which the interaction began. I regard it as probably being the time the listening device was activated. The accused was not at the police station until 9:42am.

39. The accused did participate in an ERISP. It has not been tendered before me. The parties agree it commenced at 12:29pm. I am satisfied the accused was removed from Cell 3 shortly before 12:29pm. I am satisfied the accused was placed in Cell 3 around 10:00am, probably a few minutes before that time. Dt Smith gives evidence to this effect. I do not know how long the accused was in Cell 3 when the apparently sleeping prisoner chose to offer the accused a mattress. However once that event occurred his first CD track runs 1 hr and 12 minutes. Track two is 15 minutes. Those two tracks seem consecutive. At that point undercover operative Sean is removed from Cell 3. Thus far 1hour and 27 minutes have been consumed with the interaction. Then follows 10 un-timed pages (pages 14-24 UCO James) of transcript recording conversations between undercover operative James and the accused before undercover operative Sean returns. I have guesstimated approximately 20 minutes for this un-timed conversation. I base the guesstimate on the 15minutes for an 8 page transcript for Track 2. There is then a further 27 minutes of interaction. Sean’s second CD ends with the arrival of Dt Smith. Thus, doing the best I can, I guesstimate the time of the entire interaction between accused and undercover police is close to 2¼ hours. During this time the accused was continuously in Cell 3.

40. That being so, I am at a loss to understand Con. Steven Marsh’s claimed inspection of the accused in the dock at 11:28am. Indeed, when Const Singh collects Sean from Cell 3 he is asked the time. He gives it as 11:30. Other evidence establishes conclusively that either side of 11:28 the accused was in Cell 3. If evidence over and above the transcripts of the taped conversations is needed, one need look no further that Dt Smiths’s evidence that the accused went directly from the cells with him to the interview room at about 12:30pm.

41. The charging process commenced at 13:28, some 4hours and 13 minutes after his arrest. It was not completed until 15:20 some 5 hours and 5 minutes after his arrest.

Findings from the evidence

42. On any view, the accused was being held in breach of s. 114 (3) of the LEPRA from 13:15 until taken before an authorized officer at 15:20. Thereafter he was bail refused until granted bail the following day. This is not a complaint raised by the defence. In relation to the matter presently to be determined, nothing much turns of this.

43. Given the now known deception being practiced on the accused during the early part of his time in custody, one cannot help but wonder whether the inapt record keeping is really something more sinister than inaptness. However, making such a finding is not necessary. Frankly, on the evidence I could not make it with the requisite degree of certainty. That does not mean the issue is unimportant for reasons extending beyond this judgment. I intend to forward this judgment and Voir Dire Exhibit 7 to the Police Integrity Commission for its consideration.

44. But, what the evidence does establish is that the Custody Officer, knowing undercover operatives were seeking to finesse admissions from the accused failed to keep accurate records of his movements when it was his duty so to do. This failure to keep proper records, however motivated or caused, is sufficient on its own to constitute a circumstance to be taken into account. The failure to keep proper records inhibits the accused’s capacity to cross-examine as to his movements whilst in custody and the time of them in circumstances where a system has been established precisely for that purpose. During the time between his entry into the dock and his ultimate charging (the latter commenced at 13:28pm) several important movements and other events had taken place.

45. However, the first record of his being away from the dock is documented at 18:29pm. There is nothing in the records capable of corroborating his account, should it have been important, of being in Cell 3 shortly after his arrival in the dock. Nor is he capable of relying upon the records to account for his movement from Cell 3. The first record of him being in Cell 3 puts the time at 9:12pm almost half a day after he actually was taken there. In other words, he is unable to establish from the records that he spent any time in Cell 3 before that time and/or the duration of time he was with the two undercover police operatives.

46. Well before the accused’s arrest, Dt Sgt Smith recognised this was a case that could well do with strengthening up. That can be the only explanation for the decision to use undercover operatives after arrest.

47. In fairness Dt Sgt Smith did not disavow such a proposition. Indeed, it seems he is prepared to acknowledge he was astute to the need. I raised with him his awareness that there are a number of means by which a person may be charged with an offence. When asked by me what prompted him to use the arrest option, Dt Sgt Smith answered:

Numerous reasons, one of them being obviously to try and further – to gain further evidence in relation to the listening device in the cell and obviously taking other things into account, the further commission of offences, things like that.

Q: I don’t understand that last bit?
A: Well by arresting the accused and trying to keep him behind bars it may go some what to reducing the incidence of further – similar offences that the accused may commit while at liberty. …

Q: …[H]e was taken to court I think the next day or the day after?

A. The next day.

Q. Was this fear of further offending raised at court on the bail hearing?
A. No it wasn’t for a particular reason.

48. Neither counsel sought to explore the particular reason for the likelihood of similar offences not being raised at the bail hearing. While not relevant to the matter at hand, other than establishing the ease with which the accused secured bail, I record the accused was granted bail conditional upon an acceptable person depositing $300 and the accused himself agreeing to forfeit $300 in the event of a breach of bail.

49. I am satisfied Dt Sgt Smith’s primary purpose in arresting the accused was to create a situation whereby the accused would be exposed to two undercover police whilst in police custody managed by police, and with all facilities provided by police. Dt Smith held some hope, if not confidence, that given those circumstances (the accused’s arrest for this particular crime, his noted personality traits as disclosed in other covert surveillance) advantage could be taken of police custody by using facilities of the police station, to obtain a venue, a listening device and his undercover police to focus the accused’s conversation upon the circumstances of the robbery. I am satisfied the two undercover operatives pursued their involvement with the accused at the direction of Dt Sgt Smith for the purpose of achieving, if possible, an outcome consistent with Dt Sgt Smith’s hoped for outcome.

50. Of the four hours allocated for investigation, Dt Sgt Smith chose to devote a majority of it to the interaction between undercover police operatives and the accused. It was Dt Sgt Smith’s intention and understanding that the accused would remain in Cell 3 until and only when he directed the accused be removed from the cell. Having allocated so much time for this purpose he was caught short of the four hours permitted for investigation purpose by s. 115 (2) LEPRA.

51. I am satisfied the accused was not pressured by either of the undercover police officers. He was, of course unaware of their true identity as police officers. Each was, of course engaged in police work. Each was, through questioning and comments designed to evoke a response, seeking to increase police knowledge about the ATM thefts at the Easter Show in 2005. Because the accused was unaware of their identity, he spoke to them voluntarily, and it would appear, without much reserve.

52. The defence case is the accused was posturing while speaking to the undercover police. His detailed knowledge, although appearing well informed, is hearsay. The Crown case is the accused was reliable in the account he gave to the undercover police. The only available evidence to compare the accused’s account to is the evidence of the security guard. As I have said, his evidence appeared to favour the accused, that is, appears inconsistent with significant portions of the accused’s account. I have already noted, my impression of the security guard was that he was a weak witness. I also noted he was not cross-examined by the prosecution on portions of his evidence that did not favour the prosecution. Nonetheless the detail provided by the accused to the undercover police smacks of reliability. It possessed the quality of an observant eyewitness. For example:

(a) …after I put it (container housing the two ATMs) on the truck, I've just pulled the fuckin forklift back and left it with the forks up.

(b) “well the arse of the forklift come off the ground” [when loaded with the container]

(c) “when we ripped 'em (the ATMs) out, like a couple of cables and fuckin put 'em on the truck, the big sign Westpac was still lit up, 'cos it was on its own power. So, it’s goin over the [Ryde?] Bridge and you see like Westpac on it.”

53. Ultimately, should these conversations proceed to the jury, it would be a matter for it whether these revelations made by the accused constituted true and accurate admissions. My task is confined to assessing the reliability of the evidence the prosecution seeks to provide the jury to satisfy myself that in the event it was admitted, the evidence is capable of satisfying a jury the accused made true and accurate admissions of his complicity in the theft of the ATMs. I am satisfied the evidence reaches such a level of reliability. I am satisfied the jury could prefer, beyond reasonable doubt, his account to that given by the security officer.

54. Dt Sgt Smith’s mandate to arrest without warrant is covered primarily by s 99 LEPRA. It is set out below:

99 Power of police officer to arrest without warrant

(1) A police officer may, without a warrant, arrest a person if:

(a) the person is in the act of committing an offence under any Act or statutory instrument, or

(b) the person has just committed any such offence, or

(c) the person has committed a serious indictable offence for which the person has not been tried.

(2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument.

(3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:

(a) to ensure the appearance of the person before a court in respect of the offence,

(b) to prevent a repetition or continuation of the offence or the commission of another offence,

(c) to prevent the concealment, loss or destruction of evidence relating to the offence,

(d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,

(e) to prevent the fabrication of evidence in respect of the offence,

(f) to preserve the safety or welfare of the person.

(4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorized officer to be dealt with according to law.

55. On its face it appears the arrest may have been permissible pursuant to s. 99 (2), or to s99 (1) (c) assuming Dt Sgt Smith had such knowledge, or honestly and reasonably held such a belief. However the power of arrest pursuant to s99 (1)(c) and (2) is circumscribed by s,99 (3) when it is for the purpose of taking proceedings against a person. Dt Willey, who made the arrest, believed that was certainly one of the purposes. Dt Sgt Smith who ordered the arrest says his ultimate intention was the accused, once finished with the undercover operatives, was to be formally interviewed and charged. I am satisfied the subsidiary purpose in arresting the accused was to have him charged with the offences he has now been arraigned upon.

56. Assuming 99 (3) applies even when only the subsidiary purpose of the arrest is charging the person, then the arrest of the person should seek to achieve at least one of a number of designated purposes. On the evidence before me, I am not convinced Dt Sgt Smith genuinely believed the accused would be unlikely to appear (he was granted bail the following day); would be likely to commit an offence (not raised at the bail hearing); would be likely to conceal, lose or destroy evidence already available to police or at all (subject of course to the accused right to silence); to harass or interface with a potential witness; or was likely to fabricate evidence if not arrested. If Dt Sgt Smith’s belief of the accused’s involvement is correct, the likelihood, from Dt Smith’s perspective, of a risk of fabricating evidence would increase during any interview with the accused. Nor was the arrest necessary to preserve the safety or welfare of the accused. Again, if there was any risk to the safety and welfare of the accused, given his health conditions it could only have been exacerbated by his arrest. I can find no purpose required to be achieved by s.99 (3) was genuinely entertained by Dt Sgt Smith. Nor can I find any such purpose was achieved by the accused’s arrest.

57. I find any arrest for the purpose of initiating criminal proceedings against the accused was unjustified in the circumstances of this case.

Did the primary purpose of the arrest justify the arrest?

58. As I earlier remarked the primary purpose of the arrest was to detain the accused at a venue controlled by police for the purpose of placing two undercover operatives in a cell with the accused in circumstances where his mind would be focused upon the circumstances of the theft of two ATMs at the Easter Show. I turn now to consider whether an arrest in those circumstances was justified.

59. A useful starting point is to review some clear statements on the common law.

A person is not to be imprisoned otherwise than upon the authority of a justice or a court except to the extent reasonably necessary to bring him before the justice to be dealt with according to law. That as we conceive it, is one of the foundations of the common law. Williams v The Queen (1986) 161 CLR 278 at 306 per Wilson and Dawson JJ
* * * * *
The right to personal liberty is, as Fullagar J. described it, “the most elementary and important of all common law rights”. Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England “without sufficient cause”. He warned:
Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper … there would soon be an end of all other rights and immunities.

That warning has been recently echoed. In Cleland v The Queen , Deane J said
It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed.

The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes…
(authorities and citations omitted) Williams v The Queen ante at 292 per Mason and Brennan JJ
* * * * *

But suspicion that a person has committed a crime cannot justify an arrest except for a purpose, which that suspicion justifies; and arrest and imprisonment cannot be justified merely for the purpose of asking questions. When a police officer suspect that a crime has been committed there is no reason why he should not, and every reason why he should ask questions of any person who seems likely to be able to give any information on the subject, whether he suspects him of having committed it or not, for the purpose of discovering whether his suspicions are well founded, and if so, who is the perpetrator, but he has no authority to arrest or confine any person for the purpose of asking him questions. No person is entitled to impose any physical restraint upon another except as authorized by law. This rule applies as much to police officers as to any one else, although the law allows them somewhat greater powers in this respect than it allows to other citizens. Where the imposition of physical restraint is authorized by law it may be imposed only for the purpose for which it is authorized. Thus such restraint may be lawful to prevent a breach of the peace so long as it ceases as soon as its necessity ceases. It may be imposed in the course of arresting and bring before a magistrate a person for whose arrest a warrant has issued; and it may be imposed by a police officer in the course of arresting and bringing before a magistrate a person for whose arrest no warrant has issued, but whom the officer, with reasonable cause suspects of having committed a crime or an offence punishable whether by indictment or summarily under any Act. This authority existed with respect to felonies at common law. It was extended to other offences by statute [Crimes Act 1900]…. But the statute, like the common law, authorizes him only to take the person so arrested before a justice to be dealt with according to law, and to do so without unreasonable delay and by the most reasonably direct rout. Any detention which is reasonably necessary until a magistrate can be obtained is of course lawful, but detention which extends beyond this cannot be justified under the common law or statutory power. Thus it has been held that if in the course of an arrest which is otherwise for a lawful purpose, the arresting constable takes the arrested person to some place to which it would not be reasonable and proper to take him in the course of bringing him before a magistrate, for the purpose of searching him there, the detention in that place and the search are unauthorized and therefore actionable. (Citations omitted). Bales v Parmeter (1935) 35 S.R. (NSW) 182 at pp188-189

60. The common law, of course has been modified by statute. When introducing the Law Enforcement (Powers and Responsibilities) Bill , the then Attorney General (Mr Debus) in the second reading speech said the following:

The Government is pleased to introduce the Law Enforcement (Powers and Responsibilities) Bill. The bill represents the outcome of the consolidation process envisaged by the Royal Commission into the New South Wales Police Service to help strike a proper balance between the need for effective law enforcement and the protection of individual rights….

I turn now to powers relating to arrest. Part 8 of the bill substantially re-enacts arrest provisions of the Crimes Act 1900 and codifies the common law. The provisions of part 8 reflect that arrest is a measure that is to be exercised only when necessary. An arrest should only be used as a last resort as it is the strongest measure that may be taken to secure an accused person’s attendance at court. Clause 99, for example clarifies that a police officer should not make an arrest unless it achieves the specified purposes, such as preventing the continuance of the offence. Failure to comply with this clause would not, of itself, invalidate the charge. Clauses 107 and 108 make it clear that nothing in the part affects the power of a police officer to exercise the discretion to commence proceedings for an offence other than by arresting the person, for example, by way of caution or summons or another alternative to arrest. Arrest is a measure of last resort. That part clarifies that police have the power to discontinue arrest at any time.

The application of the safeguards contained in part 15 of the bill represents the classification of the common law requirement that persons must be told of the real reason for their arrest and a clarification of the additional requirements that officers must provide their name, place of duty and a warning. Hansard 17th September 2002 p. 4846.

61. Below are the relevant provisions of Part 9 of the LEPRA.

a) 109 Objects of Part

b) The objects of this Part are:

(a) to provide for the period of time that a person who is under arrest may be detained by a police officer to enable the investigation of the person’s involvement in the commission of an offence, and
(b) to authorise the detention of a person who is under arrest for such a period despite any requirement imposed by law to bring the person before a Magistrate or other authorized officer or court without delay or within a specified period, and
(c) to provide for the rights of a person so detained.

c) 111 Persons to whom Part applies

(1) This Part applies to a person, including a person under the age of 18 years, who is under arrest by a police officer for an offence. It is immaterial whether the offence concerned was committed before or after the commencement of this Part or within or outside the State.

(2) This Part does not apply to a person who is detained under Part 16.

d) 113 Effect of Part on other powers and duties

(1) Existing powers relating to arrest and other matters This Part does not:

(a) confer any power to arrest a person, or to detain a person who has not been lawfully arrested, or

(b) prevent a police officer from asking or causing a person to do a particular thing that the police officer is authorised by law to ask or cause the person to do (for example, the power to require a person to submit to a breath analysis under Division 3 of Part 2 of the Road Transport (Safetyand Traffic Management) Act 1999, or

(c) independently confer power to carry out an investigative procedure.

(2) Certain evidentiary matters and rights not affected. Nothing in this Part affects:

(a) the operation of:

(i) the following provisions of the Evidence Act 1995:

section 84 (Exclusion of admissions influenced by violence and certain other conduct)

section 85 (Criminal proceedings: reliability of admissions by defendants)

section 90 (Discretion to exclude admissions)

section 138 (Exclusion of improperly or illegally obtained evidence)

section 139 (Cautioning of persons), or

(ii) any other provision of that Act, or

(b) any law that permits or requires a person to be present at the questioning of another person who is under arrest (for example, the presence of a parent at the questioning by a police officer of the parent’s child), or

(c) the right of a person to refuse to participate in any questioning of the person or any other investigative procedure unless the person is required by law to do so, or

(d) the right of a person to leave police custody if the person is not under arrest, or

(e) the rights of a person under the Bail Act 1978.

e) 114 Detention after arrest for purposes of investigation

(1) A police officer may in accordance with this section detain a person, who is under arrest, for the investigation period provided for by section 115.

(2) A police officer may so detain a person for the purpose of investigating whether the person committed the offence for which the person is arrested.

(3) If, while a person is so detained, the police officer forms a reasonable suspicion as to the person’s involvement in the commission of any other offence, the police officer may also investigate the person’s involvement in that other offence during the investigation period for the arrest. It is immaterial whether that other offence was committed before or after the commencement of this Part or within or outside the State.

(4) The person must be:

(a) released (whether unconditionally or on bail) within the investigation period, or

(b) brought before an authorized officer or court within that period, or, if it is not practicable to do so within that period, as soon as practicable after the end of that period.

(5) A requirement in another Part of this Act, the Bail Act 1978 or any other relevant law that a person who is under arrest be taken before a Magistrate or other authorized officer or court, without delay, or within a specified period, is affected by this Part only to the extent that the extension of the period within which the person is to be brought before such a Magistrate or officer or court is authorised by this Part.

(6) If a person is arrested more than once within any period of 48 hours, the investigation period for each arrest, other than the first, is reduced by so much of any earlier investigation period or periods as occurred within that 48 hour period.

(7) The investigation period for an arrest (the "earlier arrest") is not to reduce the investigation period for a later arrest if the later arrest relates to an offence that the person is suspected of having committed after the person was released, or taken before a Magistrate or other authorised officer or court, in respect of the earlier arrest.

115 Investigation period

(1) The investigation period is a period that begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances, but does not exceed the maximum investigation period.

(2) The maximum investigation period is 4 hours or such longer period as the maximum investigation period may be extended to by a detention warrant.

f) Division 3 – Safeguards relating to persons in custody for questioning

g) 122 Custody manager to caution, and give summary of Part to, detained person

(1) As soon as practicable after a person who is detained under this Part (a "detained person") comes into custody at a police station or other place of detention, the custody manager for the person must orally and in writing:

(a) caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence, and

(b) give the person a summary of the provisions of this Part that is to include reference to the fact that the maximum investigation period may be extended beyond 4 hours by application made to an authorized officer and that the person, or the person’s legal representative, may make representations to the authorized officer about the application.

(2) The giving of a caution does not affect a requirement of any law that a person answer questions put by, or do things required by, a police officer.

(3) After being given the information referred to in subsection (1) orally and in writing, the person is to be requested to sign an acknowledgment that the information has been so given.

62. The intent of parliament was to codify the common law insofar as the power of arrest is concerned (Second Reading Speech ante). There has been no sanction by Parliament of any diminution of a person’s right to personal liberty cherished by Fullagar J. There is nothing in the provisions of the LEPRA or the Second Reading speech of the then Attorney General which justifies the use of arrest for any purpose other than to bring the person before a justice or otherwise authorized person to be dealt with according to the law (Williams v The Queen ante per Wilson and Dawson JJ). The capacity to detain for any purpose after arrest is enlivened only once the arrest has been accomplished (s.114 (1)).

63. Arrest is still a remedy of last resort (Williams v The Queen ante per Mason and Brennan JJ) (S. 99 LEPRA). Section 114 (1) does not provide any basis for arrest (Bales v Parmeter (ante). Proper arrest is a condition precedent without which s 114 (1) cannot be activated. Absent a lawful arrest access to the investigation period is unavailable. Nor can an arrest be formulated for any purpose other than what the law permits. Clearly the common law would not sanction the use of an arrest for purposes conceived and pursued by Dt Sgt Smith. Nor is there authority in the common law once a person is arrested to restrain his liberty for the purpose of placing him in a cell with undercover police. As Chief Justice Jordan said: “No person is entitled to impose any physical restrain upon another except as authorized by law.” So far as I am aware the placing of an accused in a designated cell with two undercover operatives charged with engaging him, and tasked with seeing if admissions can be finessed from him is not authorized by law as a basis for arrest.

64. Nor, it seems to me, is it authorized by s 114 (2) LEPRA or any other section. “[T]he purpose of investigating” found in s114 (2) relates to enquiries being done after arrest by the arresting officer or those acting at his direction. An investigation amounts to a search, inquiry or examination of particulars. It is an examination to obtain the true facts to make an inquiry. When the allowance of 4 hours was made for investigation time, what was contemplated was the formal questioning of a suspect, and time preparatory for conducting a record of interview. There was a real issue as to whether police were permitted by the common law, having arrested a suspect, to have time out for the purpose of questioning before placing the accused before an authorized person for charge and bail. It was never a voiced contemplation that there should be “time out” for undercover operatives to pose as arrested detainees.

65. What occurred in the cells with this accused was a fishing expedition that may, or may not have been successful. It can hardly masquerade as an investigation. When LEPRA was drafted conduct of the kind that is the subject of this voir dire was unknown after arrest and before charging. None of the government, the Royal Commission, or the Courts in this country, so far as my enquiries are concerned, has dealt with conduct of this kind at this particular time in the criminal trial process. There was no law enacted to redress or support it. Understanding the terms of LEPRA are codifying the common law, there is nothing in s 114 (2) which supports the pursuit of this conduct.

66. Dt Smith’s primary purpose in arresting the accused did not justify his arrest. It follows from my findings in respect of his arrest that the accused was treated unfairly. Although an arrest may be carried out not in accordance with LEPRA, any charge resulting from that arrest nonetheless survives. However, s.113 provides that evidentiary matters and right are not affected.

67. The defence seeks relief pursuant to s.90 Evidence Act 1995. It provides:

In a criminal proceeding, the court may refuse to admit evidence of an admission or refuse to admit the evidence to prove a particular fact if:

(a) the evidence is adduced by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

68. The Crown argues, if I find an impropriety I would exercise my discretion pursuant to s.138 of the Evidence Act. While there is clearly scope for an overlapping of the work done by the two sections, there are also differences to be observed in their application. S138 applies to civil and criminal proceedings. It applies to the tender of a wide range of evidentiary matters. It seeks to deal with impropriety and unlawful conduct by a wide range of people and in a wide range of situations. On the other hand s. 90 is more targeted. It is directed only to admissions, and only admissions adduced by the prosecution. It applies only in criminal proceedings. It is targeted particularly at ensuring propriety among law enforcement officers. Not surprisingly given the different scope of each section there are different policy considerations. Improper conduct that may survive if tested against s.138 (3) may not survive – assuming it related to an admission in criminal proceedings, against the test of s.90 (b).

69. The relief sought is a discretionary matter. Obviously I am dealing with admissions said to have been made by the accused, and sought to be adduced by the prosecution in criminal proceedings. The issue for me is “having regard to the circumstances in which the admission was made, is it unfair to the defendant to use the evidence in the trial.” It is no secret to the parties that this has been a difficult decision for the Court. The question for me is not whether the accused was treated unfairly; it is whether the reception of the admissions would be unfair to him (Cleland v The Queen (1982) 151 CLR 1 at p. 18 per Deane J.

70. I have found the admissions were voluntarily made. I have found they qualify as having the requisite degree of reliability to go before a jury. The Part 9 caution, although not usually so applied or understood, is capable of covering a situation where undercover operatives are or may be in a cell. Authorities such as Tofilau v R 238 ALR 650 and Em v R 239 ALR 204 stand for the acceptance into evidence of admissions made in such circumstances.

71. On the other hand, in my experience this is an extraordinary case. The only authority I have been able to locate from my experience and research touching upon any covert dealings with a detainee in custody pending charging is a Canadian decision R v Broyles [1991] 3 S.C.R. 595. Even that case has significant differences.

72. There is helpful obiter to be found in R v Mullah [2005] NSWSC 358 (11 February 2005) in a judgment of Wood CJ at CL:

114. The difference in the position of an accused who is involved in [covert surveillance] conversations in the course of the commission of a crime, and that of an accused post arrest, while not conclusive, also has, in my view some significance. A particular concern exists in relation to post arrest trickery or subterfuge that is designed to derogate from the fundamental right of silence, and from the privilege against self-incrimination. Somewhat different considerations apply, in my view, in relation to investigations occurring before arrest, and which are an almost inevitable feature of the kind of controlled operations, which are now permitted by statute, in response to the decision in Ridgeway v The Queen . (reference omitted).

73. For reasons given I regard the arrest of the accused as an unfair deprivation of his liberty. Such an unfairness is no small matter. The unfairness impinges into the consideration of circumstances in which the admissions were made. It was an extreme step taken by police in placing the accused into an environment that was owned, managed, and dominated by them, for an unfair purpose.

74. For reasons I have given I regard the custody records maintained by the police as an impropriety that becomes a circumstance to be taken into account on the question of fairness to the accused. For reasons I have given above I regard them as a circumstance contributing to the unfairness of allowing the admissions into evidence.

75. I am satisfied planned trickery and deception were used by investigating police because of a belief that the accused would not reveal anything incriminating within the normal interview structure. In doing so they were seeking to avoid, or more accurately void his right to silence. I note the remarks of Brennan CJ in Swaffield “There is a public interest in ensuring that the police do not adopt tactics that are designed simply to avoid the limitations on their inquisitorial functions that the courts regard as appropriate in a free society. (R v Swaffield 72 ALJR 339.)

76. I have already noted when reviewing the detail of this case that from a prosecution perspective, but for the admissions made by the accused, it is a markedly weak case. The admissions are, because of their scope, detail and reliability self-incriminatory evidence of a high order. Self- incriminatory evidence obtained in the way in which this incriminatory evidence was obtained would render this trial unfair because its admission would strike at one of the fundamental tenets of a fair trial, the right to silence. That the admissions may persuade a jury beyond reasonable doubt is not to point. The unfairness in the trial would be excusing by the trial judge the voiding of the right to silence by trickery and deceit. If the impugned evidence is the only evidence tending to incriminate the accused, the fact that the conviction of the accused depends on self-incriminatory evidence will increase the unfairness of the trial. ( R v Broyles [1991] 3 SCR 595 citing with approval R v Collins [1987] 1 SCR 265 and R v Herbert [1990] 2 SCR 151).

77. In all the circumstances I am persuaded that having regard to the circumstances in which the admissions sought to be relied upon by the Crown were made by the accused, it would be unfair to him to use them in evidence against him. The tender of the evidence of the recordings made by the undercover police in Cell 3 at the Newtown Police Station on 19 February 2005 is rejected.