R v Kilincer (No. 2) - [2021] NSWSC 829

Supreme Court

New South Wales

Medium Neutral Citation: R v Kilincer (No. 2) [2021] NSWSC 829
Hearing dates: 15 February 2021, 16 February 2021, 17 February 2021
Date of orders: 8 July 2021
Decision date: 08 July 2021
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
1. The Court declines to exclude under ss.84, 85, 90 or 137 Evidence Act 1995 (NSW), the admissions made by the Accused on 29 January 2020.
2. The Accused’s Amended Notice of Motion filed on 15 February 2021 is dismissed.

Catchwords:
CRIMINAL LAW – pretrial application – accused charged with murder – accused seeks exclusion of admissions made to an undercover police officer during a covert “scenario” investigation – covert investigation methodology as described in Tofilau v The Queen (2007) 213 CLR 396; [2007] HCA 39 – objection on basis admissions obtained as a result of oppressive conduct under s.84 Evidence Act 1995 (NSW) – s.84 objection overruled – objection on basis admissions unreliable under s.85 Evidence Act 1995 (NSW) – construction of s.85(1) considered – s.85 objection overruled – objection on basis that evidence of admissions unfair to Accused under s.90 Evidence Act 1995 (NSW) – s.90 objection overruled – objection on basis that probative value of admissions outweighed by danger of unfair prejudice to accused under s.137 Evidence Act 1995 (NSW) – s.137 objection overruled – evidence admissible

Legislation Cited:
Acts Interpretation Act 1901 (Cth)
Evidence Act 1995 (Cth)
Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW)
Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW)
Evidence (National Uniform Legislation) Act 2011 (NT)
Evidence Act 2008 (Vic)

Cases Cited:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41
Bin Sulaeman v R [2013] NSWCCA 283
BJS v The Queen (2013) 231 A Crim R 537; [2013] NSWCCA 123
Deacon v R (2019) 282 A Crim R 303; [2019] NTCCA 21
Director of Public Prosecutions (Vic) v Hou (2020) 62 VR 1; [2020] VSCA 190
Director of Public Prosecutions (Vic) v Walters (2015) 49 VR 356; [2015] VSCA 303
Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299; [2010] NSWCA 34
Higgins v R [2007] NSWCCA 56
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Lauchlan v State of Western Australia [2008] WASCA 227
McDermott v The Queen (1948) 76 CLR 501; [1948] HCA 23
Morgan v State of Western Australia [2011] WASCA 185
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 39
R v A2; R v KM; R v Vaziri (No. 14) [2015] NSWSC 1544
R v Anunga (1976) 11 ALR 412
R v Bartle & Ors (2003) 181 FLR 1; [2003] NSWCCA 329
R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335
R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494
R v Cowan; Ex parte Attorney General (2016) 1 Qd R 433; [2015] QCA 87
R v Droudis (No. 8) [2016] NSWSC 1263
R v Esposito (1998) 45 NSWLR 442
R v Fesus (No. 2) [2015] NSWSC 1467
R v Helmhout [2000] NSWSC 185
R v Jelicic [2016] SASC 57
R v Lieske (2006) 166 A Crim R 213; [2008] ACTSC 97
R v Rooke (Court of Criminal Appeal, 2 September 1997, unreported)
R v Simmons; R v Moore (No. 2) (2015) 249 A Crim R 82; [2015] NSWSC 143
R v Sumpton [2014] NSWSC 34
R v Tarantino (No. 6) [2019] NSWSC 1174
R v Taylor [2016] QSC 116
R v Tofilau (No. 2) (2006) 13 VR 28; [2006] VSCA 40
R v Ul-Haque (2007) 188 A Crim R 3348; [2007] NSWSC 1251
R v Weaven (Ruling No. 1) [2011] VSC 442
R v Xie (No. 13) [2015] NSWSC 2125
R v Ye Zhang [2000] NSWSC 1099
R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166
Sidaro v R [2020] ACTCA 11
Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39

Texts Cited:
Mildren, “Redressing the Imbalance Against Aboriginals in the Criminal Justice System” (1997) 21 Crim LJ 7
Pearce, “Statutory Interpretation in Australia”, 9th edn, 2019

Category: Principal judgment
Parties: Regina (Crown)
Kubilay Kilincer (Accused)
Representation:
Counsel:
Mr B Hatfield (Crown)
Mr E Ozen SC (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Abbas Jacobs (Accused)

File Number(s): 2020/30002
Publication restriction: Non-publication orders are in force with respect to the details of a police operation and identities of police involved.

JUDGMENT

JOHNSON J: By an indictment dated 4 November 2020, the Accused, Kubilay Kilincer, is charged that, on 11 December 1995, at Blacktown in the State of New South Wales he did murder Hasan Dastan.

The Present Application

Following committal for trial to this Court, the Accused makes application by Amended Notice of Motion filed on 15 February 2021 for an order that the purported admissions made by him on 29 January 2020 be excluded under ss.84, 85, 90 and 137 Evidence Act 1995 (NSW).
The evidence sought to be excluded by the Accused arose from a police covert investigation referred to colloquially as a scenario investigation or “Mr Big” or “Big Boss” investigation. As will be seen, this investigatory method has been considered by courts in Australia on a number of occasions. In Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39, Gleeson CJ (at [1]) observed succinctly that, in the course of a “Mr Big” investigation, the appellants “were tricked by undercover police officers, posing as criminals, into confessing”.
I will return to what has been said by courts about this investigatory method later in the judgment.

The Pretrial Hearing

The Court undertook a pretrial hearing to determine the objection raised by the Accused on 15, 16 and 17 February 2021.
Tendered by the Crown was a folder containing a range of documents relevant to the Accused’s objection (Exhibit PTA).
In addition, the officer-in-charge, Detective Senior Constable John Mastrobattista, gave evidence at the pretrial hearing (PT17-41). During the course of that hearing, audio and video recordings of the conversation on 29 January 2020 were played in Court (Tabs 13 and 14, Exhibit PTA).
The Accused did not give evidence or adduce evidence at the pretrial hearing.
Counsel for the Crown and the Accused had furnished written submissions in advance of the hearing with counsel addressing orally by reference to the evidence adduced at the pretrial hearing (PT41-118).
A date for the trial of the Accused has not been set in recognition of the fact that the ruling of the Court on the present application will play a very significant part in determining whether the charge against the Accused proceeds to trial.

Factual Background

The Deceased and the Accused

The deceased, Mr Dastan, died on the morning of 11 December 1995. Mr Dastan was born in February 1943 and was 52 years old at the time of his death. The cause of death was severe blunt trauma to the head and face with extensive skull and facial bone fractures. There was also evidence of blunt trauma to the chest (page 360, Exhibit PTA).
At the time of his death, the deceased owned and operated an automotive workshop at Blacktown. The deceased starting working at the workshop in 1989 and purchased the business in 1990.
The deceased lived in Fairfield Heights with his wife, Sultan Dastan, and their youngest son, Ertan (then 11 years old). There were two older children of the marriage (then aged 24 and 25 years) who each lived locally, but had moved out of the family home.
In early or mid-1995, the Accused (who was born in November 1961) was hired by the deceased as a transmission mechanic. The Accused worked fulltime for the deceased (six or seven days a week) and was the deceased’s recognised employee.
In December 1995, the Accused lived at an address in Quakers Hill, about a five-minute drive from the workshop. The Accused lived with his wife, Gulser (“Lisa”) Kilincer, and his four daughters (then aged 13 years, five years, three years and nine months).

Murder of Mr Dastan on 11 December 1995

For the purpose of this judgment, it is not necessary to recite in detail the matters addressed in a lengthy Crown Case Statement (Tab 1, Exhibit PTA).
It is sufficient to observe that on 11 December 1995, the deceased was subjected to a severe attack to his head and face causing very grave injuries and death. The murder occurred in the workshop so that the body of the deceased was located in the vicinity of a vehicle, tools and other equipment otherwise contained in the workshop.
Photographs of the crime scene revealed a metal pipe in the mouth of the deceased with a large pool of blood beneath his head and a sledgehammer lying to the left of his head (pages 325-330, Exhibit PTA).
Under the right arm of the deceased was a bloodstained note that appeared to have a partial shoe imprint on its surface. The handwriting on the note is obscured by blood, but the words might say “You fix my up the other day now I get you done poptov” (pages 17, 346, 364-365, Exhibit PTA).
The Accused was interviewed by police in 1995 and 1996 concerning the murder and he denied killing the deceased.

The Covert Operation concerning the Accused in 2019 and 2020

Detective Senior Constable Mastrobattista gave evidence that the murder of Mr Dastan had been the subject of a cold case review in 2009 and 2017 (PT17). By 2018, the Accused was the main suspect and there were no other avenues of investigation, with the investigation having stalled (PT18).
On 20 March 2018, a covert operation was authorised by the Commander of the NSW Police Undercover Branch at the request of the Unresolved Homicide Unit. There was no controlled operation certificate with respect to the operation, as it was never intended that there be any criminality in any of the scenarios (PT18).
Between 7 February 2019 and 29 January 2020, approximately 48 deployments were conducted targeting the Accused as part of this covert operation (Tab 2, Exhibit PTA).
The covert operation culminated in a meeting between an undercover officer ([redacted] or the “Big Boss”) and the Accused in a hotel room on 29 January 2020 in which the Crown alleges that the Accused made admissions to the murder of the deceased. It is this conversation which is the subject of the present objection by the Accused.

The Covert Investigatory Strategy Used in This Case

The strategy used involved what is sometimes described as a “Big Boss” or “Mr Big” scenario played out over a number of months leading to a conversation in which it is alleged that admissions were made. The general nature of operations of this type have been considered in a number of decisions including Tofilau v The Queen; R v Weaven (Ruling No. 1) [2011] VSC 442; Lauchlan v State of Western Australia [2008] WASCA 227; R v Cowan; Ex parte Attorney General (2016) 1 Qd R 433; [2015] QCA 87; R v Simmons; R v Moore (No. 2) (2015) 249 A Crim R 82; [2015] NSWSC 143; R v Fesus (No. 2) [2015] NSWSC 1467; R v Jelicic [2016] SASC 57; R v Taylor [2016] QSC 116 and Deacon v R (2019) 282 A Crim R 303; [2019] NTCCA 21.
The strategy involves undercover operatives (“UCOs”) making contact with the suspect, building a rapport with him and then introducing and involving the suspect in the work of a fictitious organisation or syndicate for which the UCOs worked, which was involved in various forms of criminal and corrupt conduct. Fictitious crimes and scenarios are undertaken as part of this process.
The suspect is led to believe that the syndicate has sufficient influence to make a criminal investigation “go away” and the operation culminates in meeting with the “Big Boss” who indicates that he would assist the suspect, but could only do so if the suspect tells the truth about the crime which the suspect is believed to have committed.
The “Mr Big” investigatory strategy was summarised by Gummow and Hayne JJ in Tofilau v The Queen (at [26]) in the following way:

“Undercover police, posing as criminals, tell a murder suspect that, to join their gang and profit from their activities, he must tell their boss the truth about his involvement in the murder. They tell him that, if he does that, the boss can and will make any problems ‘go away’. The undercover police play out various scenarios designed to show the suspect how successful and powerful they are as criminals. Any initial protestations of innocence by the suspect are met with insistence upon the need to tell the truth because charging and conviction are inevitable if the gang’s help is rejected. Is the suspect’s subsequent confession to those who play the roles of boss and gang members a voluntary confession?”

In Tofilau v The Queen, Callinan, Heydon and Crennan JJ described the strategy as follows (at [219], footnotes omitted):

“These four appeals raise for consideration the admissibility of ‘scenario evidence’. In outline, scenario evidence is confessional evidence obtained in the following way. Undercover police officers pose as members of a gang. They solicit the cooperation of a person whom they think has committed a serious crime, although they do not believe that they are yet able to prove it. They encourage that person to take part in ‘scenarios’ involving what the person wrongly thinks is criminal conduct. Provided that the person informs the head of the gang of anything which might attract the adverse attention of the police, they offer the person two advantages. One is the opportunity of material gain by joining the gang. The other is the certainty that the head of the gang can influence supposedly corrupt police officers to procure immunity from prosecution for the serious crime.”

Although Kirby J dissented in the outcome in Tofilau v The Queen, his Honour summarised helpfully the features of the investigatory strategy under consideration in that appeal. It will become apparent that these features were replicated broadly in the case of the present Accused. Kirby J said (at [165], footnotes omitted):

“165 Common features of the appeals: The common features of the evidence in the four appeals, relevant to the issues of voluntariness are:
(1)   Each appellant was subjected to sustained, prolonged, intense pressure to admit his involvement in a murder which, at first, he denied;
(2)   Each persisted in denial of guilt for a period of time but ultimately made a confessional statement;
(3)   The confessional statements were made to persons who were in fact police officers, acting covertly;
(4)   The police officers concerned used techniques that played on each appellant's fear of being prosecuted for murder and on his hope of joining a criminal gang, thereby securing financial advantages, and more importantly, gaining access to corrupt police who could ‘fix up’ the otherwise looming problem of criminal prosecution;
(5)   Each appellant did not know that the persons with whom he was dealing were police officers; but each of those persons represented that they had the power, through police officers whom they effectively controlled, to influence and alter the course of future criminal proceedings to the appellant's advantage;
(6)   The confessional evidence was, in each case, procured through what was effectively an interrogation and not a neutral investigation that allowed the appellant to tell his own story in his own way;
(7)   Although none of the appellants was in physical custody at the time the confessional statements were made, each was suspected by police of homicide in circumstances where police believed that there was insufficient evidence to sustain a successful prosecution. The purpose of the ‘scenarios’ was to repair the evidentiary gap in the prosecution case; and
(8)   By reason of the course adopted, each of the appellants was deprived of a warning which the police officers, acting as such, would ordinarily have given concerning the appellant's ‘right to silence’; the recording of the evidence; its possible later use in a trial of the appellant; and the availability of access to a lawyer before giving inculpating confessional testimony to the police.”

The decision in Tofilau v The Queen involved consideration of common law principles before Victoria enacted the Evidence Act 2008 (Vic). It is, of course, the language of the Evidence Act 1995 (NSW) which is to be applied on the present application: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 39 at [10], [88]. However, what was said in Tofilau v The Queen has provided considerable guidance when considering objections to evidence, arising from the “Mr Big” investigatory strategy, taken under the Evidence Act 1995 (NSW) and under corresponding legislation in other jurisdictions in Australia.
To the extent that the “Mr Big” investigatory method uses trickery and deception, Gleeson CJ observed in Tofilau v The Queen (at [5]) that the “use of undercover police operations always involves deception” and that “all forms of covert surveillance…involve a kind of deception".
In the circumstances under consideration in Tofilau v The Queen, Gleeson CJ observed (at [17]) that “the deception practiced upon them was not such as was likely to elicit a false confession”. Gleeson CJ observed as well (at [18]) that it was significant that “the appellants thought they were talking to criminals, not police officers” and that “deception is a very common method of seeking to obtain confessions from people suspected of crime”.
With respect to the use of psychological pressure in this context, Gleeson CJ said (at [19], footnotes omitted):

“Since possible forms of deception are bounded only by human imagination, and human gullibility, it would be dangerous to assert that no form of deception could deprive conduct of its voluntary character. Most deception used in the hope of eliciting admissions, however, including the form used in the present case, is calculated to induce a person to choose to reveal information that otherwise would be concealed. The appellants were subjected to powerful psychological pressure, but it is not unusual for people to reveal old secrets under pressures that are no less compelling. The law attempts to distinguish between external pressures and pressures personal to the confessionalist. That itself may be a distinction based on pragmatic rather than scientific considerations. The effect of external forces and circumstances on an individual is likely to depend on characteristics personal to the individual. That which a person of one disposition may regard as unbearable pressure may
be a matter of indifference to another. The physical or emotional characteristics of a person, or that person’s background or circumstances, will always be material to the effect of externally imposed pressure. The burden of guilt may weigh heavily on one person but may be borne lightly by another.”

With respect to an argument based upon the suggested infringement of a person’s “right to silence”, Gleeson CJ said (at [21]):

“In answer to this line of reasoning it must again be observed that many forms of undercover police activity, and of covert surveillance, involve attempts to gain information from people who, if they were aware of what was going on, would remain inactive or silent. There is a sense in which it can be said that intercepting a telephone conversation, or secretly recording an interview, always deprives a person of the opportunity to remain silent in circumstances where, if the person had realised that he or she was under observation, the person would have remained silent. That does not mean that there has been an infringement of one of the legal rules which together make up the right to silence. Nor does it mean that what is being said in the conversation is involuntary. The argument seems to equate the right to silence with a right of privacy, and to treat as involuntary any statement that is made without a fully-informed appreciation of the possible consequences. Neither step is consistent with legal principle.”

Gummow and Hayne JJ pointed to the absence of duress, coercion and intimidation in the circumstances under consideration in Tofilau v The Queen (at [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.”

With respect to issues of pressure and suggested impropriety, Gummow and Hayne JJ said (at [113]):

“In the present matter, the appellant sought to describe the methods employed by investigating police as ‘improper’. That description was given colour and, perhaps, some content, by reference to the playing out of what appeared to be serious criminal activity. But in fact, no crime was committed in the course of the various scenarios conducted by the covert police operatives. The ‘impropriety’ to which the appellant pointed was, in the end, said to lie in the ‘pressure’ that had been applied to him. That ‘pressure’ was constituted by creating in his mind the belief that the only way he could avoid being charged with and convicted of the murder of Bonnie Clarke was to tell the ‘boss’ that he had done it.”

When considering the issue of inducements, Callinan, Heydon and Crennan JJ observed (at [323]) that “each appellant lacked reasonable grounds for thinking that the undercover officers had lawful authority to investigate [the suspected offence]” and that “the only reasonable belief which the appellants could have had about those persons was that they were gangsters, not authorised police officers”.
Concerning the issues of deception and manipulation, Callinan, Heydon and Crennan JJ observed (at [347]) that “there are innumerable examples of confessions being admitted despite the confession having been generated by deception”.
With respect to the use of pressure and the absence of threats, intimidation and violence, Callinan, Heydon and Crennan JJ said (at [375]-[376]):

“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.”

Reference should be made to the “cautionary note” at the end of the judgment of Callinan, Heydon and Crennan JJ (at [418]):

“Nothing said above should be taken as a warrant for any undiscriminating reception of evidence gathered by police officers operating covertly. Plainly, as these appeals show, it is desirable that covert operations be undertaken from time to time, and they can be undertaken without damaging the integrity of the police force, or indeed of the system of criminal justice itself. Covert operations can however be risky. Sometimes the covert officers will, as a matter of necessity, be remote from close supervision and the discipline that it entails. Seduction of officers by criminals is not unknown. Covert officers can be placed in danger. Their response to that danger may cause them, however understandably, to act in a way that might otherwise be thought irregular. But none of those factors were present in the circumstances out of which these appeals arose. The trial judges in these cases were in all respects careful and discriminating in considering and admitting the relevant evidence.”

As will be seen, the approach of the majority in Tofilau v The Queen has been called in aid in rejecting objections to alleged admissions obtained using the “Mr Big” investigatory strategy made by reference to ss. 84, 85, 90 and 137 Evidence Act 1995 (NSW) (or its equivalent in other Australian jurisdictions): R v Weaven (Ruling No. 1) at [32]-[41]; R v Simmons; R v Moore (No. 2) at [60]; R v Fesus (No. 2) at [205]; Deacon v R at [35]-[48].
In R v Jelicic, Peek J noted the similarities between cases using the “Mr Big” investigatory method and said (at [13]-[16], footnotes omitted):

“13   It is no coincidence that cases involving a [sic] 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.
14   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 below.
15   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.
16   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.”

In Deacon v R, Grant CJ, Southwood J and Riley AJ referred (at [58]) to the statement of Peek J in R v Jelicic (at [16]) and then continued at [59]:

“Of course, it is not enough to say in a general sense that covert ‘scenario’ operations do not constitute ‘oppressive conduct’ requiring the exclusion of confessions or admissions made in the course of such operations. It is necessary to give attention to the character and content of this particular operation, the context in which the admissions were made, and the applicant’s personal characteristics and position in the matter.”

These statements of courts in other cases provide a helpful background to consideration of the objections taken in the present case. As will be seen, the recurring features of “Mr Big” investigations identified in earlier cases were apparent as well in the case of the Accused.
It is now appropriate to turn, in some detail, to what occurred in 2019 and 2020 in the “Mr Big” covert investigation involving the Accused.

Steps in the “Mr Big” Scenario Concerning the Accused Between February 2019 and January 2020

The details of the covert investigation are set out in the Crown Case Statement (pages 36-44, Exhibit PTA). It is appropriate to set out some features of the scenario development in the latter part of 2019, to place in context the conversation between “Mr Big” and the Accused, which took place and was recorded on 29 January 2020.
Between February and May 2019, a relationship developed between the Accused and the various UCOs acting as members of the syndicate.
[redacted]
[redacted]
[redacted]
[redacted]
[redacted]
[redacted]
[redacted]
[redacted]
[redacted]
[redacted]
[redacted]
[redacted]
[redacted]
Detective Senior Constable Mastrobattista gave evidence that payments in the total sum of $3,450.00 were made to the Accused during the course of the covert operation (PT19). In addition, costs totalling $807.00 were paid for items including a flight, meals, cigarettes and gifts (PT19).

Press Conference on 28 January 2020

On 28 January 2020, the Commander of the Homicide Squad addressed the media at a press conference, together with members of Mr Dastan’s family. The purpose of the press conference was to announce an increase in the reward for information relating to the murder of the deceased, which had previously stood at $100,000.00. The new reward for information was set at $1 million. No suspect or person of interest was nominated during the press conference.
Several television news channels ran stories that evening covering the increase in the reward. It is evident from that coverage that, subsequent to the press conference, media personnel had attended the Accused’s home address in an effort to speak to him about the matter. Detective Senior Constable Mastrobattista stated that media outlets did this of their own volition and there was no co-ordination between police and the media in this respect (PT21, 40).

Events on 29 January 2020 Leading to the Conversation Between the Accused and the “Mr Big”

The following morning (at 10.47 am on 29 January 2020), the Accused contacted “[redacted] by text message, requesting he “come around for coffee” (page 85, Exhibit PTA).
[redacted]
[redacted]
[redacted]

Conversation Between the Accused and “Mr Big”

[redacted]
It is appropriate to set out in some detail the summary of the conversation as contained in the Crown Case Statement (pages 37-44, Exhibit PTA). The images and sound during the conversation in the hotel room were recorded in their entirety. The extract from the Crown Case Statement has been edited to the extent that any entries serve to identify any UCO (other than by the assumed names used in the covert operation) with this approach being consistent with orders made by the Court on 15 February 2021 pursuant to s.34 Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW).
The summary of the conversation between the Accused (referred to as “Tom”) and [redacted] (described as “Mr Big”) on 29 January 2020 is contained in paragraphs 171-192 of the Crown Case Statement. As will be seen, the Accused moved from a position of denial of the murder of Mr Dastan to making admissions later in the conversation.
The early part of the conversation is summarised as follows (paragraphs 171- 186):

“171 At about 6:30pm, the accused was introduced to Mr Big. Mr Big said, ‘the boys speak very highly of you’.
The accused said he had taken the battery out of his phone. He told Mr Big he was nervous and stressed. The accused was asked why he is stressed, and he responds:
I was the suspect. Cause I was the last one that saw him in the workshop. I was a worker
... um, that morning I left for Centrelink, I had an appointment there. They used to give me cash on the side. Gave me his ute [to] drive. Nice fellow. I took the missus, went to Centrelink, all legit, everything's legit. And on the way back I called for the workshop, well, Channel 9 was there, cops were there ... that's the whole thing.
That's it. I was the head suspect. They couldn't find anybody else. But um, they couldn't find anything that I, I was, like, they didn't put me, charge me with anything. But 24 years later this. [clapping sound]

172 The accused tells Mr Big he sent a message to [redacted] about a coffee to ‘get help’. Mr Big says, 'what help' and the accused responds, ‘from you guys, from the brothers’. Mr Big explains that it's important the accused is honest with him if he is going to reach out like this. The accused says he was ‘so happy on the way coming here’. Mr Big says they can 'do this one of two ways': the accused can either tell Mr Big the truth or he can continue whatever he's done in the past. The accused says ‘I've told you the truth, I didn't do it, thank God. I didn't do it’. The accused says:
No way I would. He pays me well, he gave me his ute what for, I would never, ever do that. Never ... I wouldn't even kill a cockroach.
... Come to that day, my ex-boss 24 years ago, he had, he did have enemies. I told police everything, because he'd, he had stolen parts in there. He had everything there. Um, he even argued with these people that, I'm gonna call the cops on you. He said, you do that, and you'll see. This was about 2 weeks, right then.
... I'm suspicious of that. And another one he used to play up, this is married woman, the boss told me, he said, I think he knows that I was playing up with his wife. He used to tell me things. He might have done it, or this, these might have did it. I dunno.

173 Mr Big says he has spoken to someone called [redacted], and he knows who investigated this last time and he knows who is looking at the case now. Mr Big tells the accused he can say the same old thing, but he's tried it before and it hasn't worked, and Mr Big isn't buying it. Mr Big tells the accused to tell him what happened. The accused says:
That's what happened. I walked out with the missus. I walked out, come back. They must have been watching the place or something, you know. I've got all the receipts where I've been ... everything is there, what time I was there ... from Centrelink, I just had an appointment there, so I had to be there, I left him at 9:30. I was there at 10:00. Come back
...

174 Mr Big and the accused then discuss the impact this has had on the accused's family. Mr Big says this is the accused's best opportunity to do what is right for his family, to make this go away. Mr Big says there's only one person in the room that can make this right; he says he can see that the accused is thinking about it. The accused asks Mr Big whether he believes the accused didn't do it, and Mr Big says, ‘no, I don't ... we wouldn't be sitting here if ... if everything you had said was legit, you wouldn't be sitting here in front of me’.
175 Mr Big says, ‘we can sit here, and you can tell me, or tell me what you told everyone else’. The accused responds, ‘I'm telling exactly what happened ... I'm being honest’. Mr Big says he knows what he has to do to make this go away, but the one thing that brings the flies or the dogs is when someone's hiding something. The accused says, ‘I'm not hiding anything from you ... I would tell you if I did it. But I did not do it. I did not do it ... I didn't do it honestly, I did not do it’:
Even the Coroner's back then, they didn't charge me or anything at the end. Cause I didn't do it. The time fits, everything was where I was. But I didn't do it man, honestly I would not do it. Cause, like he was a nice man. I loved the man. I was in tears that day
...
I loved the man, honestly. He was like a father to me. I would not do it, you know. He left me his keys, I opened the shop. And he came ... he said, come quick ... yeah, that's what happened. Honestly, honest to god. Look at my kids, I didn't do it. If I did, honestly I will tell you ...
I didn't do it. Did not do it, there's several other suspects, but I didn't ... It just could have been his son, he was a druggie, I don't know.

176 The accused says he feels lost with all this stress. Mr Big says he knows what is stressing the accused; it's having to carry this for 24 years knowing that it's not going away. Mr Big says he has spoken to [redacted]. He tells the accused not to treat him like a fool. Mr Big says he can see the pressure it's bringing on the accused. Mr Big says very few people get the opportunity to make things go away, and it's not for themselves, it's for their family.
177 The accused says he is being honest and would tell Mr Big if he did it: ‘I tell you, honestly, I would tell you. If I did it, I would tell you’. Mr Big says, ‘and you have to, otherwise it doesn't go away, you have an opportunity here mate’. Mr Big emphasises the need for trust and honesty. The only missing piece [in] the puzzle is the truth. The accused says:
Just say I did do it, what's that gonna help, I mean ... I know, just say I did it, which I didn't, just say I did it. How is that gonna help more? But I didn't do it, that's all ... No, but if I did it, honestly on my kids I would tell you. My oath
...
No, what I meant is, say if I did it, I'm trying to explain it, how's that gonna help, is it gonna help [redacted] is it gonna, you know, I know I didn't do it, I'm just saying.

178 Mr Big says the only way he is going to be able to make it go away is if he gets every skerrick of information about how it happened. Mr Big says, ‘only one person can do this Tom, it's not me, it's not Lisa, it's not the grandkids mate. Let it go, talk to me, let me help you’. The accused replies, ‘I didn't do it, honestly, I would tell you if I did it. I trust you guys, you know ... I do trust you’. The accused repeats this a number of times. Mr Big says he just wants the truth because without it, he's got nothing. The accused says:
I'm telling you the truth, I did not do it. I couldn't do it to that man. He's done nothing to me. He was a nice man, I wouldn't. …
You have to believe me, I didn't do it. I would tell you, honest to God, I would, swear on my kids. I didn't do it. Honestly, I would tell you. I didn't do it. On my kids, I wouldn't, didn't do it. I would never swear on my kids. Man, I love them.

179   Mr Big says Lisa must be seeing what he is seeing, which is a man who is burdened with something. Mr Big says he sees the accused's sighs and the way he is sitting forward. The accused again denies killing the deceased and says he is being honest.
180   Mr Big says the accused sent the text for help and he feels like he's wasted his time; he didn't expect to come here and hear what he could have read in the paper. The accused maintains he is being honest, and he did not do it. Mr Big says he sees a man he believes has had a burden for last 24 years. Mr Big says he needs to ask the same question, ‘why contact us?’ The accused says, ‘help’. Mr Big says he can't help without the truth and the accused responds, ‘but I am telling you the truth, I can't say I did it, I didn't do it’.
181   Mr Big says [redacted] has managed to get a hold of a lot of information and he needs to [sic] the last piece of the puzzle. The accused gives a version of what happened:

I had the keys. I opened the workshop, opened all the shutters up. And then his wife called. She said, is he there? He said, I said, no, he's not back yet. I'll tell him you called. Anyway, and then he came. He hasn't been home, he's been gambling in some Turkish cafe, said he lost all the money. So anyway, he came there. And, um yeah, I said, I've got an appointment, I've got to pick Lisa up, go home, go to Centrelink. He said, go and come back. I've got to go, he said, I haven't got enough sleep. So I picked up Lisa, went there. Maybe for an hour, not even, more actually (SIGH) And then we came back.

182 Mr Big says he knows for a fact the accused didn't have an appointment. The accused sighs and says, ‘but we were there’, ‘we had to say something to them all, I can't remember, Lisa will know all that, but we were there. Time fits, everything fits, I left him there and went. Mr Big raises the fact that someone at Centrelink had ticket ‘146’, and the accused arrived after then and didn't even take a ticket. The accused says, ‘impossible’. He says he doesn't know Demet Ulusoy. He says, ‘honestly, I did not do it… I would tell you if I did it … they massacred him, you know, I couldn't do that, I wouldn't do that, no way’.
183 The accused denies taking any money from a customer who paid for a car. He denies being at the workshop when the new worker Andrews showed up. The accused says, ‘no- one came for a job there. No-one. I opened up at 8:30. Opened the shutters up, one shutter up. Then Hasan opened the other shutter up, and I stayed there another maybe 10 minutes, and off I went, that's it, honestly, I would
tell you, I've got nothing to hide’. The accused says he got the [sic] Centrelink at 9:50 because he ‘left him at 9:30’.

184   The accused again denies he took money from the deceased but when Mr Big mentions the customer with the reconditioned engine, he says, ‘look ... Hasan would have too, took that’. The accused says, ‘but I didn't take it, honestly’. Mr Big says he can't understand why they are sitting together then, because everything seems ‘hunky dory’. Mr Big again says this is an opportunity for the accused to make things right for himself and his family. The accused again denies killing the deceased.
185   Mr Big says, ‘you realise if we keep on going around in these circles, nothing changes when you walk out of here’. Mr Big encourages the accused to let him take some of his burden. The accused says he can't say he did it because he didn't do it. Mr Big says he can only extend his hand for so long. The accused says, ‘you're telling me to tell you the truth, I am being honest, I didn't do it’.
186   Mr Big says the accused has a once in a lifetime opportunity. He tells the accused he can take the pressure away. The accused maintains he didn't do it. Mr Big says he might not have seen him there, but he was there [on 17 October] sorting things out for [redacted]. The accused continues to say, ‘I've been honest with you, I can't say I did it, I didn't do it’.”

Some way into the conversation, the Accused took a toilet break within the hotel room. When the Accused left the toilet and rejoined “Mr Big”, the Accused’s demeanour and responses in the conversation took a different turn and he made what the Crown says are admissions concerning the murder of Mr Dastan.
I have kept in mind that the Crown does not intend to adduce opinion evidence from [redacted] concerning the demeanour of the Accused during the conversation. The Crown accepts that, if the evidence is allowed, it would be a matter for the jury at trial to assess the demeanour of the Accused as depicted in the video and audio recording of the conversation.
However, having assessed the video and audio recording of the conversation, I express the view (for the purpose of this ruling) that the manner, appearance and words of the Accused when he made admissions seemed genuine. The Accused became upset in a manner that seemed unfeigned. The Accused’s presentation at this point of the conversation did not have the appearance of acting or pretence in what he said and how he said it. The Accused was not detained in the hotel room. When he returned from the bathroom, the Accused spoke to [redacted] in an emotional way as he made admissions. If the Accused merely wanted to tell [redacted] that he had committed the crime to get him off his back, the Accused could have made admissions in a non-emotional way to bring the process to an end. This is not what happened. It would be open to a jury to so conclude.
The summary contained in the Crown Case Statement continued (at paragraphs 187-190):

“187 About 1 hour and 48 minutes into the conversation, the accused excuses himself to use the bathroom. [‘Mr Big’] describes noticing a change in the accused's demeanour when he returned from the bathroom a few minutes later. The accused leant in close to him, bowed his head, shed tears and reached out to hold his hands at times. This is captured on a covert video recording.
188 When the accused returns from the bathroom [redacted], The accused then admits [to] killing the deceased. The accused says:
It was a fight ... he sweared at my mother, cause he was Alevis you know, Muslim ... Sunni and Alevis, they're enemies... um, he said something about me, and I said, no, you're happening in the workshop ... do you know how hard this is... and um, he grabbed the bar to hit me, actually swung the bar and I ducked, just missed me. He swung again and I got the bar ... I got a good bar and wacked him, bang, so I hit him a couple of times, I went so berserk, that's it, then he fell between the car and I threw the pole at him, I got the shits with him ... shut the door ... and yeah.
Do you know how hard this was? (Crying) Sorry. [I] just want to it end, even Lisa doesn't know ... He said, what did he say, it's been so long. I'm not there. He said, you're all the same [Sunnis], you're all fucking cunts and whores and that ... he just, every stupid thing.
He just started swinging, oh and he had the bar in his hand, every stupid thing, he was a bit tipsy, and he came from gambling …
[It was] about 9:30 … I had the keys to open the workshop, [he said my mother was a] whore, I said, you're, you're, same things, whatever he said. I was pissed off … he went off and off, are you drunk I said. He grabbed the bar, he swung it a couple of times, couldn't hit me. You know. Somehow I got the bar off him and just went wack.

189 The accused said the deceased tried to hit him two times but missed. On the third time, he got the bar off the deceased. He asked the deceased what he was doing, and the deceased was swinging at him. The accused ‘got the bar and went bang’. He struck the deceased to the head; the deceased got up, so he hit him in the head again. The accused hit him three times. The accused says he wiped down the bar with spirits and ‘put it back where it was’. The accused says:
Do you know how hard this is for me?... You're the only person… (SOBBING)… Over stupid religion, I just lost control… Do you know how I feel? Good… You're the only one I've… I do, yes I do [feel better] … Thank you for getting it out of me, it was hard, such a stress.
Because the first time I saw you, you got to understand me, it's not something to hide, you know what I'm saying. I saw you the first time, I do trust you, but it's very hard for me to say (SOBBING)… I said it so… I've been thinking about it since I walked in here, been thinking, on the way I've been thinking. On the way I've been thinking that tell you … just …
You got to understand man, the first time I saw you, I know you more now than what you said, it's hard to explain… I can trust you now, Just more now than … Lisa doesn't know… Stephanie.

190   The accused says the following:
•   He never saw or pushed any worker away that came, that's bullshit;
•   He ‘hit’ the deceased when he was on the ground; the deceased fell between the motors and the car; the accused got a big diff, a centre diff and threw it on him; he cleaned the bar and then he went;
•   He went home, took his overalls and shoes off and stuck them in the washing machine; washed them;
•   He is glad Mr Big did it [got it out of him]; ‘I'm glad you did it, appreciate it, appreciate it, I'm clear now, Lisa doesn't know’;
•    ‘You got it out of me … you know how hard it was 24 years keeping that… yes, when it happened and I said why did I do this, I just lost it (sobbing)… he did punch me on the chest, before he swung, then he got the bar’. He couldn't have just walked out because the deceased ‘was swinging … he was drunk, tipsy; upset he lost his gambling’;
•   There was no issue with money. The deceased was one of those Alevis that hate Sunnis, he always said ‘you're all the same, this, that’; the accused kept quiet, but he hated him for that; the accused had to do his compulsory army service in Turkey and the deceased was against that;
•   He picked up the diff because he ‘wanted to destroy him’. It was the centre of a diff with the gears in it;
•   He took about $30-40 from the till;
•    ‘I trust you with my life … [I've held it to myself] for 24 years’.”

In the middle of the evening, [redacted] and the Accused took a break (paragraph 191):

“At about 8:50pm, the accused and Mr Big took a break. The accused had a coffee with three UCOs at the front of the Hotel. [redacted] describes the accused as more talkative and relaxed than earlier in the evening The accused told [redacted] that he felt relieved having spoken to [redacted]

[redacted] Once again (for the purpose of this ruling), I note that the tone and content of the Accused’s contributions to the conversation appeared to indicate a relaxed approach which was not consistent with a person who had just fabricated a story in his discussion with [redacted]. It would be open to a jury to so conclude.
During the course of the coffee break conversation, the Accused said at one point, “[redacted] seems nice” (page 243, Exhibit PTA). Soon after, the Accused said, “We had a big talk” (page 244) and, a little later, “I feel so relaxed after talking to [redacted] (page 255). By this time, of course, the Accused had made admissions concerning the murder of Mr Dastan.
The Accused returned to the hotel room and the conversation with [redacted] continued (paragraph 192):

“The accused then returned into the hotel room for a further conversation with Mr Big. In summary, he said the following:
•   The overalls he washed were white and the shoes were black steel caps;
•   The deceased fell ‘between the car’. When asked if he was under the car, the accused says, ‘can't be, well maybe he slid under there, I don't know’;
•   The pole was a ‘metal pole, a pipe’. He saw the cops carrying the pole on TV, it was sticking out of a bag. He recognised it;
•   Mr Big says that [redacted] has told him the pipe was in the deceased [sic] mouth. The accused says, ‘I don't know where that went because, nuh … I'm thinking … 24 years … I went bang with the pipe and then I wiped it and put it back there… I threw the diff after that as well’. He is not sure how the pipe stayed in his mouth but ‘I guess I grabbed the other pipe, there was another pipe … I threw a pipe at him, it was like a spare, I don't know whether it went in his mouth or not’. He threw the second pipe at the deceased, just went whack, ‘I hit him like this … honestly, I don't know what had hit him’. Later during the conversation he adopts the words of Mr Big, that he had ‘rammed it into him’, he says, ‘just went boom, don't know where it hit him’;
•   He is asked whether a sledgehammer was used, and he responds, ‘not that I know of’. He didn't use a sledgehammer; maybe the deceased fell on it;
•   The fight was not about money, the deceased didn't have any money on him; he lost it at gambling, he didn't see the deceased's wallet. There was money in the till. Later, the accused says, ‘I just remember a bit I can't remember, [the] wallet fell off him, I looked at it, there was no money in it, his wallet was on the floor’; ‘I threw the wallet ... I remember that now... I was just pissed off, I threw it’;
•   He has no knowledge of any note. He wouldn't write a note because ‘they'll know your handwriting’. After more questions, he says he can't remember a note. He is asked if he left it behind and he says, ‘I don't know’. He asks whether [redacted] can just ‘take the note’;
•   He took the rags he used to wipe down the pipe with him. He put them in someone's bins on his street, in an industrial area where there were no cameras. It was a bin day, 100%;
•   The accused says, ‘I feel better talking to you ... I trust Lisa, I didn't even mention it to her’. When asked 'what's the most important thing you got out of tonight', the accused says, ‘the truth, feel good’.”

Arrest of the Accused on 29 January 2020 and Subsequent Police Interview

The Accused was arrested in the hotel room shortly after the conversation with [redacted] on 29 January 2020 (PT31).
When informed he was arrested for the murder of Hasan Dastan, the Accused said, "I only said that so they can help me, I didn't do anything, trust me, he just pushed and pushed" (PT32-33).
After his arrest, the Accused was conveyed to Blacktown Police Station where he participated in an electronically recorded interview with police. During that interview, the Accused said, amongst other things:

that he "didn't do it. I'm not guilty" (Q&A 35);

when asked about the admissions he had made that evening, the Accused said "I didn't do it. I only said that so he could help me ... because he kept pushing me, pushing me, pushing me and I said I did it, and I said some things and so, I didn't do it. I'm not a ... I didn't do it" (Q&A41-42);

he said he admitted to it because “he kept pushing me”; the UCO was mentioning pipes and things and the Accused said, “Yes I did, I don't even know”. He only heard there were pipes from the news; "hit on the head or something, I had to go along with it" (Q&A 43);

when asked why he felt he had to make those admissions, the Accused [redacted] “I’ve been telling him for the last hour [that I didn’t do it], but he keep pushing” (Q&A 48);

he was pretending to cry when he made the admissions; it was all an act (Q&A 1148-1150).

During the course of the conversation with [redacted] on 29 January 2020, the Accused made a drawing which he was shown and signed during the later police interview (PT33-34; Exhibit PTB).

Physical and Forensic Evidence

Having regard to submissions made concerning aspects of the physical and forensic evidence, it is appropriate to note the following features of the forensic and expert evidence as summarised in the Crown Case Statement (page 47, Exhibit PTA):

“195.   In 1995, police determined that indentations on a note pad in the workshop were consistent with the writing on the blood-stained note (meaning the note had previously been placed on top of the note pad).
196   A partial fingerprint was identified on the note, but it was unsuitable for comparison (due to its limited detail). An unidentified fingerprint was located on (i) a blank piece of paper on the front of the notepad, and (ii) the cardboard backing on the notepad.
197   In 2017, a DNA profile was obtained from the back, top-left corner of the blood-stained note. The profile is not consistent with the accused's DNA profile. (It should be noted however, that there is no movement record for the note between 13.11.1997 and 10.10.2017, when it was located in a plastic sleeve within an archived box at Glebe Coroner's Court).
198   A shoe print examiner determined that the shoe impression on the blood-stained note did not match the black shoes or pair of thongs seized from the accused's premises.
199   No fingerprints were developed on the radiator, the pipe or the sledgehammer. DNA swabs were taken from each of the three items. Testing either produced a profile consistent with the deceased's DNA profile, or DNA testing was unsuccessful.
200   Handwriting comparisons between the blood-stained note and examples of the accused's handwriting were inconclusive.
201   Blood was not detected on the damp shoes or jeans seized from the accused's laundry room, nor was blood detected on the clothes the accused had purportedly been wearing on the day of the offence (black jeans with ripped knee, white t-shirt, thongs).”

Insofar as the Accused referred in the conversation with [redacted] to having thrown a “diff” at the deceased during the commission of the crime, Detective Senior Constable Mastrobattista stated that no “diff” (differential) could be seen in the crime scene photographs, nor was a “diff” seized or retained by police (PT34-35).
Detective Senior Constable Mastrobattista stated that a wheel hub assembly and a brake assembly were visible in the crime scene photographs, but he had no information whether those items had blood on them nor whether they had been examined for fingerprints (PT35; page 330, Exhibit PTA). The blood and hair of the deceased was detected on the sledgehammer and radiator depicted in the crime scene photographs (PT35-36; page 330, Exhibit PTA).
Insofar as the Accused referred in the conversation with [redacted] to using two pipes, Detective Senior Constable Mastrobattista said that one pipe only was depicted in the crime scene photographs, this being the pipe in the mouth of the deceased (PT36, page 344, Exhibit PTA).
Insofar as a ball joint remover was referred to by the Accused in the conversation with [redacted] Detective Senior Constable Mastrobattista was informed by the deceased’s son that there had been two ball joint removers in the deceased’s workshop (PT36).
In cross-examination, Detective Senior Constable Mastrobattista stated that the only additional evidence obtained as part of the cold case reviews was the unknown male DNA profile located on the note found at the crime scene (PT38- 39).

The Alleged Admissions of the Accused Relied Upon by the Crown

The principal alleged admissions made by the Accused during the conversation on 29 January 2020 with [redacted] relied upon by the Crown as going directly to the Accused’s responsibility for the murder, are as follows (with page references to the transcript of the conversation which is contained at Tab 5 of Exhibit PTA):

“I did it, was a fight” (an admission to killing the deceased) (page 92);

that the Accused hit the deceased with a bar a couple of times and “went so berserk” (page 92); that he “lost control” over what was said by the deceased (page 99); and that he “lost it” (page 111);

the bar was one used to take ball joints off and he “just went whack” (pages 94-95);

the Accused hit the deceased on the head, he went down but got back up again and the Accused hit him again on the head (page 96);

the Accused wiped down the bar using spirits (page 97);

the Accused also hit the deceased on the head with another object (a differential) which the Accused threw on him (page 104), he did this because he “wanted to destroy him” (pages 113-114);

the Accused hit the deceased three times as well as throwing the object/differential (page 104);

when the Accused first went home he put clothing, including his shoes, in the washing machine and washed them (pages 106-107);

the Accused stole money from the till (immediately after the murder) (pages 115-116);

there was another pipe which the Accused threw or rammed (by demonstration) into the deceased (pages 126-129);

the Accused looked in the deceased's wallet, he was “pissed off” and “just threw it” (pages 143-144);

the rags used to wipe down the pole were taken with him and disposed of in a bin after he left the workshop when he was on the way home (pages 145-147).

Alternative Bases for Exclusion of Alleged Admissions

The Accused seeks the exclusion of the alleged admissions made on 29 January 2020 upon the following alternative bases:

that the admissions were obtained as a result of oppressive conduct towards the Accused: s.84 Evidence Act 1995 (NSW); or

the circumstances in which the admissions were made suggest that the truth of the admissions was adversely affected, with those admissions being made as a result of the acts of police whom the Accused believed were capable of influencing the decision to prosecute the Accused: s.85(1)(b) Evidence Act 1995 (NSW); or

in the exercise of the Court’s discretion to exclude the admissions, having regard to the circumstances in which they were made, which rendered their use against the Accused unfair: s.90 Evidence Act 1995 (NSW); or

in the exercise of the Court’s discretion to exclude evidence that might be unfairly prejudicial to the Accused in his trial: s.137 Evidence Act 1995 (NSW).

Relevant Statutory Provisions

The word “admission” is defined in the Dictionary to the Evidence Act 1995 (NSW) as follows:

“admission means a previous representation that is -
(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and
(b) adverse to the person’s interest in the outcome of the proceeding.”

Sections 84 and 85 Evidence Act 1995 (NSW) provide as follows:

84   Exclusion of admissions influenced by violence and certain other conduct
(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by—
(a)  violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or
(b)  a threat of conduct of that kind.

(2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.

85   Criminal proceedings: reliability of admissions by defendants
(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant—
(a)  to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or
(b)  as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

Note—
Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen(2004) 218 CLR 216.
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account—
(a)  any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and
(b)  if the admission was made in response to questioning—
(i)  the nature of the questions and the manner in which they were put, and
(ii)  the nature of any threat, promise or other inducement made to the person questioned.

The term “investigating official” is defined in the Dictionary to the Evidence Act 1995 (NSW) in the following way:

“investigating official means--
(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or
(b) a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences.”

Section 90 Evidence Act 1995 (NSW) provides:

90   Discretion to exclude admissions
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.

Section 137 Evidence Act 1995 (NSW) states:

“137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

Reference should be made as well to s.189 Evidence Act 1995 (NSW) which provides:

189   The voir dire
(1) If the determination of a question whether—
(a)  evidence should be admitted (whether in the exercise of a discretion or not), or
(b)  evidence can be used against a person, or
(c)  a witness is competent or compellable,
depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question.

(2) If there is a jury, a preliminary question whether—
(a) particular evidence is evidence of an admission, or evidence to which section 138 (Discretion to exclude improperly or illegally obtained evidence) applies, or
(b) evidence of an admission, or evidence to which section 138 applies, should be admitted,
is to be heard and determined in the jury’s absence.

(3) In the hearing of a preliminary question about whether a defendant’s admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission’s truth or untruth is to be disregarded unless the issue is introduced by the defendant.
(4) If there is a jury, the jury is not to be present at a hearing to decide any other preliminary question unless the court so orders.
(5) Without limiting the matters that the court may take into account in deciding whether to make such an order, it is to take into account—
(a)  whether the evidence to be adduced in the course of that hearing is likely to be prejudicial to the defendant, and
(b)  whether the evidence concerned will be adduced in the course of the hearing to decide the preliminary question, and
(c)  whether the evidence to be adduced in the course of that hearing would be admitted if adduced at another stage of the hearing (other than in another hearing to decide a preliminary question or, in a criminal proceeding, a hearing in relation to sentencing).

(6) Section 128 (10) does not apply to a hearing to decide a preliminary question.
(7) In the application of Chapter 3 to a hearing to determine a preliminary question, the facts in issue are taken to include the fact to which the hearing relates.
(8) If a jury in a proceeding was not present at a hearing to determine a preliminary question, evidence is not to be adduced in the proceeding of evidence given by a witness at the hearing unless—
(a) it is inconsistent with other evidence given by the witness in the proceeding, or
(b) the witness has died.

Some Features of the Conversation Between [redacted] and the Accused on 29 January 2020

A summary of the challenged conversation was set out earlier, drawn from the Crown Case Statement. When setting out those extracts, I made certain observations about the images and sounds contained in the recordings of the conversations (see [75], [78]-[79] above).
Given submissions made by the parties concerning parts of the conversation of 29 January 2020, it is appropriate to refer expressly to portions of the conversation. Amongst other things, complaint was made by Senior Counsel for the Accused concerning the use of pressure, the use of leading questions by [redacted] and what was described as “gratuitous concurrence” on the part of the Accused.
It should be kept in mind that the Accused had not met [redacted] before this meeting. The Crown submitted that this aspect was significant in assessing the change in attitude of the Accused from denials to the making of admissions to the murder of Mr Dustan.
Early in the conversation, the Accused said “My missus is stressed, I’m stressed, I don’t know what to do” (page 97, Exhibit PTA).
The Accused said that he had made contact for a meeting that day “for help … from you guys” (page 98).
The conversation proceeded with the Accused maintaining that he did not commit the murder (page 100 and following).
The general approach of [redacted] as the conversation continued, reflected the strategy observed in other cases where the “Mr Big” investigatory method was used (see [26]-[30] above).
For example, at one point, [redacted] said “So please don’t, please don’t, how can I put this very politely, don’t play me for a fool” to which the Accused responds “No, I’m not, honestly I’m not” (page 115).
At another point, consistent with the “Mr Big” investigatory method, [redacted] said to the Accused “I have the people. We’ve done it before, we’ll do it again. But the only time we finish it is when that last piece of the puzzle comes into play” (page 120).
Soon after, [redacted] made clear again that all “information” was needed to be given to [redacted] the corrupt police officer who would make the case go away (page 125):

[redacted]: “The only way I can make it go away is by getting every skerrick of information as to how it happened, why it happened”.
Accused: “Mmm”.
[redacted]: “And I get that information to [redacted]. That’s, that’s that piece of the puzzle I’m talking about”.
Accused: “Yes”.
[redacted]: “Does that make sense?”.
Accused: “Yes, yes”.
[redacted]: “Only then, only then can I get in touch with [redacted] and start to make things happen. And [redacted] and I, [redacted] and I have spoken.”

The Accused continued with his denial. [redacted] pressed the Accused for the “truth”, saying (128):

[redacted]: “I just want the truth, mate”.
Accused: “Yeah”.
[redacted]: “Because without it, I’ve got nothing. Without it, I’m back into that situation where I don’t believe it’s going to go away. I know it’s not going to go away. And that causes some, um, issues for me, when I look at where we move on. I believe if we move on this ain’t going away”.
Accused: “Mmm”.

[redacted] said that he had spoken to [redacted] who had “managed to get a hold of a heck of a lot of information … so there are reasons why I sit here and say, no, I don’t believe you there are reasons why I sit here and say, I’m missing the last piece of the puzzle” (page 143).
As noted earlier, the point was reached where the Accused said that he wished to go to the toilet (pages 181-182):

[redacted]: “I'm telling you how I can help. I've told you how I can help”.
Accused: “You're saying just say you did. But I didn't do it”.
[redacted]: “Evidence disappears, mate”.
Accused: “… it's - - -”.
[redacted]: “Statements disappear. You know that we can, um, through, um, going to have a nice chat with someone and, and offering what we need to offer that versions change. There's a small chance and it's all about time potentially, mate”.
Accused: “I just need the toilet”.
[redacted]: “Hey?”.
Accused: “Just gunna use the toilet”.
[redacted]: “You need the bathroom?”.
Accused: “Yes. Thanks”.

When the Accused returned from the toilet, he commenced to make admissions. The two men sat close to each other and the Accused appeared emotional and, at times, cried as he told [redacted] that he “did it” (pages 183-184).
[redacted] posed a series of open or non-leading questions to the Accused as the conversation continued and admissions were made (pages 184-191).
The Accused (“Tom”) sighed and had a drink of water and the following was said (page 191):

[redacted]: “Breathe mate. Drink of water, have a drink. (INDISTINCT NOISES). Have a drink. (INDISTINCT NOISES) We need to ... Tom, tonight, because I want to fix it tonight, I need to fix it tonight. I want to have lunch on Friday. I want you there on Friday. So I need to fix it tonight, mate”.
Accused: “Do you know how I feel?”.
[redacted]: “How?”.
Accused: “Good (SIGH)”.
[redacted]: “What's up, mate?”.
Accused: “You're the only are I've ...”.
[redacted]: “Tell me you feel better”.
Accused: “I do”.
[redacted]: “You feel better?”.
Accused: “I do, I do. Yes, I do”.
[redacted]: “Thank you. Thank you, Tom”.
Accused: “Thank you for getting it out of me, it was hard. (SOBBING)”.
[redacted]: “Thank you, Tom. Tom - - -“.
Accused: “Such a stress”.
[redacted]: “Tom, I'll say this, um, for you and I for tonight, um, the work's only just begun. Yeah. Can you work with me tonight, mate?”.
Accused: “Yeah”.
[redacted]: “Can we get this sorted?”.
Accused: “Yes”.

Soon after, the Accused explained why he did not tell [redacted] what had happened earlier, in the course of which the Accused referred to his wife and daughter (page 193):

[redacted]: “So if you were thinking about telling and coming here (INDISTINCT NOISES) why didn't you?”
(INDISTINCT NOISES)
Accused: “But, you got to understand, man, the first time I saw you, I know you more now than what you said. It's, it's hard , to explain ... I, I can trust you now. Just more now than. (INDISTINCT NOISES)”.
[redacted]: “I feel relieved for you, I really do. I'll tell you what I'm - - -”.
Accused: “Lisa, Lisa doesn't know”.
[redacted]: “No, no. And that stays that way”.
Accused: “Stephanie”.
[redacted]: “I'll be guided by you on that”.

[redacted]: used further open or non-leading questions in the conversation and the Accused said that he threw the “diff” at the deceased (page 195).
[redacted] asked open questions in which the Accused told him about washing his clothes after killing the deceased (page 197).
Soon after, the following was said (pages 199-200):

[redacted]: “I'm just, I'm just throwin' a few questions out there for now”.
Accused: “Yeah of course you are”.’
[redacted]: “I'm gunna have to sit down with you. Mate, I want to have a coffee, I'm gonna 'II have to sit down with you and go over a few things”.
Accused: “I've told you everything”.
[redacted]: “Sorry?”.
Accused: “I've told you everything, everything ...”.
[redacted]: “Tom, mate, what, if I sit down and pester you, please understand it's just because I want to - -“.
Accused: “Mmm, no, no”.
[redacted]: “- - - get things right tonight”.
Accused: “I'm glad you did it”.
[redacted]: “All right”.
Accused: “I'm glad you did it”.
[redacted]: “All right. I want to get it right tonight”.
Accused: “Appreciate it, appreciate it”.
[redacted]: “Um, I need to get it right tonight. I need to speak with
[redacted]: I'll have to do a couple of other things. I want to make sure that you and Lisa is OK tonight, yeah. That's, that's a big thing for me”.
Accused: “Yeah”.
[redacted]: “Yeah. I need to make sure your head's clear tonight. Because, ah, when you do go home, mate, um - - -“.
Accused: “Yeah, I'm clear now”.

The following exchange was relied upon by the Crown as being inconsistent with “gratuitous concurrence” of the Accused’s part (pages 201-202):

[redacted]: “Tell the boys we want a coffee”.
(INDISTINCT NOISES)
[redacted]: “So tonight, mate, so you know”.
Accused: “You got it out of me”.
[redacted]: “Ah, hey?”.
Accused: “You got it out of me”.
[redacted]: “Well, more important, mate - - -”.
[redacted] : “- - - it's about fixing it now”.
Accused: “Yeah”.
[redacted]:
“It's about fixing it now, and it's about me, um, havin' a chat to [redacted] puttin' things in place. Makin' sure you - - -”.
Accused: “Yeah”.
[redacted]: “- - - go home with a cl, with, with, um - - -”.
Accused: “You know how hard it was 24 years keeping that”. “How hard, mate?”.
[redacted]: “I'd imagine 25 years would be real hard”.
Accused: “Yes. When it happened and I said why did I do this I just lost it.
(SOBBING)”.

Immediately before taking a coffee break, during which the Accused was to see the other syndicate members, the following was said (page 207):

[redacted]: “Bit of both. And the boys are gunna get a coffee. Take, take. The boys are gunna get a coffee, they need you to this um, when you're out there, have a smoke, have a coffee”.
Accused: “Yep”.
[redacted]: “They don't know what you and l spoke about. And I want to keep it that way”.
Accused: “Yeah”.
[redacted]: “Yeah. Um - - -”.
Accused: “No, no I trust you with my life”.
[redacted]: “Just for now I want you to hold it to yourself. Um, they won't ask any questions”.
[redacted]: “I have for 24 years”.

During the coffee break, the Accused seemed relaxed and expressed his gratitude to [redacted] in his discussions with the others (see [79] above).
Upon resumption of the conversation after the coffee break, the Accused discussed aspects of the killing of Mr Dastan. In the course of discussion concerning the use of the pipe during the commission of the crime, there was some use of leading questions by [redacted] (pages 215-216):

[redacted]: “But [redacted] said to me that there was a pole, um, rammed down his throat in his mouth”.
Accused: “I don't know where that went because, nuh”.
[redacted]: “Tell me ... 'cause I'll need to sort it out. These are the things that [redacted] has raised with me so you know, if you're telling me you wiped it down and took it away, yeah, um, the photos that [redacted] looked at shows the pipes ---”.
Accused: “… can’t …”.
[redacted]: “Hey, we've come this far”.
Accused: “Yeah, yeah I'm thinking”.
[redacted]: “Yeah”.
Accused: “24 years”.
[redacted]: “Yeah?”.
Accused: “Um I went bang with the pipe and then I went, ok. Then I wiped it put it back there”.
[redacted]: “OK. So you, when he was down, you hit him with the pipe, where did you hit him?”.
Accused: “I threw the diff after that as well”.
[redacted]: “But how would the pipe stay in his mouth?”.
Accused: “Was it in there?”.
[redacted]: “That's what I'm being told”.
Accused: “I don't know”.
[redacted]: “That's what I'm being told”.
Accused: “I guess I grabbed the other pipe, I don't know. There was another pipe”.
[redacted]: “Was there another pipe? There was - - -”.
Accused: “Yeah”.
[redacted]: “What happened with that pipe?”.
Accused: “I'll have to draw it to ...”.
[redacted]: “Draw it, mate, there's a pen there”. Accused: “Ok, I'll show you. Yes, sorry yeah”.

The following was relied upon by Mr Ozen SC as a clear example of “gratuitous concurrence” on the part of the Accused (page 217):

Accused: “I threw a pipe at him, it was like a [spear], I don't know whether it went in his mouth or not”.
(INDISTINCT NOISE)
Accused: “There's another pipe I wiped up”.
(SHUFFLING SOUNDS)
Accused: “The garage was there, there was a cupboard or something there, big massive cupboard”.
[redacted]: “Cupboard, did you say?”.
Accused: “Cupboard, cupboard ... I think”.
[redacted]: “Sorry, mate years in the trade”.
Accused: “It was a cupboard, um there parts and things on there. I wiped the pipe and threw it there pipe was there one pipe. 'cause I used two pipes”.
[redacted]: “Uh-huh. Where'd the second pipe come from”?
Accused: “It was also laying down”.

The discussion concerning the use of the pipe continued. The Crown submitted that the two men may be at cross purposes at this point in the conversation. It was submitted for the Accused that this was a further example of use of leading questions and “gratuitous concurrence” (pages 218-219):

[redacted]: “But what did you, what did you do to Dastan with the
big pipe?”.
Accused: “Just [hit] him with it”.
[redacted]: “OK”.
Accused: “Yeah that's the one I hit him with”.
[redacted]: “Yep”.
Accused: “That pipe I wiped”.
[redacted]: “Put it on top of the cupboard, yep”.
Accused: “Yeah, it's clean the other one, I threw at him”.
[redacted]: “Uh-huh. And that was the shorter pipe”?
Accused: “Yes”.
[redacted]: “How far away were you from him when you threw it at him?”.
Accused: “Was there, I was here”.
[redacted]: “Uh-huh. So did you throw it at him or did you, did you jam it in him?”.
Accused: “Nuh, I just went whack, that's it”.
[redacted]: “Sit down”.
(SHUFFLING SOUNDS)
Accused: “I know I did ...”.
[redacted]: “So did you jam it in him? 'Cause I, I've just got to be able to, if I, if I take this for someone, to someone else, take the rap for, I need to be able to get all this information across so we can explain it. If a pipe's hanging out of his mouth - - - ”.

Accordingly, I do not consider that s.85 can be relied upon by the Accused in the circumstances of this case.
It is appropriate, however, to consider the balance of the s.85 objection, in case my conclusion with respect to the applicability of s.85 is incorrect.
If the circumstances in s.85(1)(a) or (b) are engaged, the Court moves to the issue posed by s.85(2) – whether the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. In this regard, the Court will have regard to the non- exhaustive list of factors contained in s.85(3).
If an issue of reliability arises legitimately, the onus lies on the Crown to establish on the balance of probabilities that the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected: s.142 Evidence Act 1995 (NSW); R v Esposito at 460.
The focus of s.85 is the reliability of the admissions in the circumstances in which they were made, as distinct from the “voluntariness” of the admissions: R v Bartle & Ors (2003) 181 FLR 1; [2003] NSWCCA 329. Generally speaking, s.85 is directed to the circumstances in which an admission was made and any impact these circumstances may have on the reliability or otherwise of the admission: R v Ye Zhang at [49]-[51].
It has been said that the issue under s.85 is not concerned with the question whether the admission was, in fact, made or whether it was true or untrue, each of these questions being for the jury: s.189(3) Evidence Act 1995 (NSW); R v Esposito at 460; cf. R v Ye Zhang at [51]-[52].
Even if s.85 was available as an avenue of objection in this case, I am not persuaded that the admissions allegedly made by the Accused are unreliable for the purpose of that provision.
It must be kept in mind that the conversation on 29 January 2020 was taking place some 24 years after the events in question. Some factual aspects referred to in the admissions do not appear consistent with facts emerging from the forensic and objective evidence, but others do appear to be consistent. These are, in my view, issues for a jury to consider at trial.
It may be said that, unlike some other “Mr Big” scenario cases, there is no feature of the admissions allegedly made by the Accused which only the killer would know: R v Cowan; Ex parte Attorney General at [45]; R v Weaven (Ruling No. 1) at [43]; R v Jelicic at [4], [87]; R v Taylor at [98]. However, existence of such a feature is not a precondition to admissibility nor a requirement for a conclusion that admissions are capable of being found reliable by a tribunal of fact.
To the extent that the s.85 objection was said to encompass the concept of “gratuitous concurrence” in the manner in which the Accused answered some of [redacted] questions, it is appropriate to address that issue.
The phrase “gratuitous concurrence” has been used in the context of the power to restrict the use of leading questions in cross-examination under s.42 Evidence Act 1995 (NSW): R v Xie (No. 13) [2015] NSWSC 2125 at [9]; R v A2; R v KM; R v Vaziri (No. 14) [2015] NSWSC 1544 at [9]; R v Droudis (No. 8) [2016] NSWSC 1263 at [14], by reference to the observations of Heydon J in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [117].
The use of the term in the present objection appears closer to its use in the context of ss.85 and 90 Evidence Act 1995 (NSW) objections in Bin Sulaeman v R [2013] NSWCCA 283. In that case, objection was taken to admissions made in what was described as “a cross-language and cross-cultural exchange” so that responses to questions may have been “little more than an act of gratuitous concurrence”: Bin Sulaeman v R at [78].
In the course of discussing the appeal, R A Hulme J (Beazley P and Bellew J agreeing) observed (at [85]) that “care is required in considering responses given in the course of an exchange between persons who do not speak the same language and who emanate from different cultural backgrounds”.
A similar scenario is familiar to criminal courts in cases where Aboriginal persons are interviewed by police with the possibility of agreement being expressed to propositions put in questions even where the answers are not factually correct: R v Anunga (1976) 11 ALR 412; Mildren, “Redressing the Imbalance Against Aboriginals in the Criminal Justice System” (1997) 21 Crim LJ 7. In Morgan v State of Western Australia [2011] WASCA 185, Pullin JA (McLure P and Hall J agreeing) summarised the position at [109]:

“In the case of Aboriginal witnesses, it has long been recognised that the reliability of answers given by them may be suspect if given in answer to leading questions. The answer may result in 'gratuitous concurrence': Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526. The expression was used by K Liberman over 30 years ago in an article entitled 'Ambiguity and gratuitous concurrence in intercultural communication' (1980) 3(1) Human Studies 65. In Stack, Steytler J quoted another expert in the field, Dr D Eades, who explained that 'gratuitous concurrence' meant 'the tendency to agree with the questioner, regardless of whether or not you actually agree with, or even understand the question'. The author said that this was 'a very common feature of Aboriginal conversations throughout Australia, and is customarily used to indicate a readiness for cooperative interaction, or resignation to the futility of the situation'. Steytler J quoted Kearney J in Dumoo v Garner (1998) 7 NTLR 129, who accepted that the phenomenon was 'well established'. In Stack, Steytler J also referred with approval to an article by Mildren J entitled 'Redressing the imbalance against Aboriginals in the criminal justice system'. In that article, Mildren J referred to an article by Dr Eades, where the author referred to another undesirable form of question to use with Aboriginal witnesses and said:
Aboriginal English speakers are often confused by 'either … or' questions, that is, questions which ask the respondent to choose one of two alternatives. Aboriginal answers to such questions often but not always, refer to the last alternative proffered’.”

It may be observed immediately that such circumstances are far removed from those discernible in this case. At times, the Accused sought clarification and disagreed with the leading questions put to him (see [125] above).
If the defence submission based upon “gratuitous concurrence” is intended to suggest that the Accused was driven to a position where he was required to make untruthful admissions because of the pressure and persistence of [redacted] questioning, I do not consider that the evidence points in this direction in this case. I have kept in mind, in this respect, the statements made by the Accused to police after the conversation with [redacted] in which he asserted that he had been “pushed” to make admissions and that he had pretended to cry as part of an act (see [82]-[83] above). I observe that similar features arose in R v Fesus (No. 2) at [117]. I have set out, in some detail, the terms of the conversation and some of the criticisms made by the defence in support of the objections. I do not consider the evidence indicates that the Accused was, in effect, worn down so that he agreed gratuitously with propositions put to him by [redacted] The Accused agreed with some, disagreed with others and said he could not recall some matters which had occurred some 24 years earlier.
I am not persuaded that the concept of “gratuitous concurrence” assists the Accused in his objection.
The admissions should not be excluded under s.85 Evidence Act 1995 (NSW).

Objection Asserting Unfairness Under s.90 Evidence Act 1995 (NSW)

Submissions for the Accused

Mr Ozen SC submitted that the circumstances in which the admissions were made were such that it would be unfair to the Accused to allow the Crown to adduce evidence of them at the trial. He submitted that the reliability of the submissions is an important, although not the sole consideration when weighing up this discretionary objection: Em v The Queen at [72]-[73].
Whilst acknowledging that it is permissible for police to engage in a form of trickery to deceive a suspect into making an admission, it was submitted that the police conduct went too far in this case. Even leaving aside what was said to be the pressure in the days leading up to the admissions being made, it was submitted that the exchange in which the Accused finally made the admissions was such as to adversely impact not only the reliability of the admissions, but also the question whether they were voluntarily made.
It was submitted for the Accused that, by engaging in the covert operation leading up to what was described as the “long interrogation” by [redacted] the police effectively circumvented the right of the Accused to decide whether to make an admission.
It was submitted that the admissions were influenced by an inducement offered to the Accused and were made after a long period of repeated denials, and only after the Accused was repeatedly told that, unless he told [redacted] something other than what he had been saying, there would be adverse consequences for the Accused.
In these circumstances, it was submitted that the admissions were not voluntarily made: cf McDermott v The Queen (1948) 76 CLR 501 at 506-507, 511, 513; [1948] HCA 23. It was submitted that the will of the Accused was overborne by the actions of [redacted] during this conversation and that the evidence fell within the scope of evidence that is deemed unreliable as a class: Tofilau v The Queen at [16].
Whilst conceding that the element of deception, of itself, would not give rise to the exercise of discretion under s.90, it was submitted that the situation in this case went beyond mere deception. Reference was made once again to the length of time of the covert operation and the psychological pressure on the Accused culminating in the conversation with [redacted] on 29 January 2020. It was submitted that the actions of police breached the “common law accusatorial principle” and that the admissions should be excluded, relying upon Sidaro v R [2020] ACTCA 11.

Submissions for the Crown

The Crown submitted that the burden of demonstrating that it would be unfair to the Accused to use the evidence rests on the Accused and that the Accused had failed to discharge this burden.
The Crown pointed to other “Mr Big” scenario investigation cases where objections under s.90 had been rejected: R v Weaven (Ruling No. 1) at [39]- [52]; R v Simmons; R v Moore (No. 2) at [52]-[68].
The Crown responded in some detail to the factual submissions made for the Accused in support of this objection.
It was submitted that the Court should decline to exclude the admissions under s.90 Evidence Act 1995 (NSW).

Decision on the s.90 Objection

It has been said that the language of s.90 expresses the concept of unfairness in the widest possible form: Em v The Queen at [50], [177].
Section 90 confers a discretion to exclude evidence if the requirements of the provision are made out. Section 90 is to be contrasted with ss.84 and 85, each of which requires exclusion if the Crown is unable to establish the necessary basis for admission: R v Ye Zhang at [66].
The burden of demonstrating that it would be unfair to use the evidence rests on the Accused: Em v The Queen at [63].
The Court is assisted in this case by the approach adopted by Weinberg JA in R v Weaven (Ruling No. 1) and by Hamill J in R v Simmons; R v Moore (No. 2) where s.90 objections were unsuccessful in cases where the Crown sought to adduce evidence of admission made in a “Mr Big” investigation case.
In R v Weaven (Ruling No. 1), Weinberg JA said at [39]-[40] (footnotes omitted):

“[39] In this case, the critical question in relation to s 90 seemed to me to be whether, having regard to the circumstances in which the scenario confession came to be made, it would be unfair to the accused to permit the Crown to adduce that evidence. I note that the New South Wales Court of Criminal Appeal, in R v Em, held that the probative value of an admission has no bearing upon the exercise of the ‘unfairness discretion’ under s 90.
[40] Among the matters that I took into account, in determining that it would not be unfair to the accused to admit this evidence, were the following:
• the means used to obtain the scenario confession were not in themselves illegal or improper. The scenarios took essentially the same form as those used in Tofilau, and other ‘scenario’ cases. This is recognised as an acceptable investigative technique, in appropriate circumstances;
• the mental and emotional state of the accused at the time that he made the admissions was not such as to render it unfair to receive that evidence. The covert visual recording of the discussion between the accused and Gary does not suggest that the accused’s will was in anyway overborne. He was told on a number of occasions that he was perfectly free to say nothing, and simply walk away. He chose to answer Gary’s questions, initially by telling only part of the story, and then by gradually revealing his own role in the murder of the deceased. While it is true that he had become enmeshed in what he believed to be serious criminality, and had been given powerful incentives to join the ‘gang’, I saw no signs of mental frailty of a kind that would warrant exclusion of this evidence on the basis that it would be unfair to the accused to receive it; and
• there was nothing in the method of Gary’s questioning, or the lead up to that questioning, that cast doubt upon the reliability of the accused’s admissions, and in that sense made it unfair for them to be received in evidence. It is true that the accused lied to Gary when he proffered the first and second versions of what had occurred on the night in question. However, it is also important to note that, in each of those versions, he implicated himself to some degree in the killing of the deceased. At no stage did he tell Gary that he had been at home, at his parent’s residence, when the deceased was killed. That, of course, was to be the defence proffered to the jury by his counsel throughout the course of the trial.”

In R v Simmons; R v Moore (No. 2), Hamill J found that he could take into account the reliability of the admissions as part of considerations relevant to a s.90 objection, but concluded (at [131]) “whilst some parts of the admissions may well be unreliable, a properly instructed jury might discriminate and accept parts of the admissions made by the accused” so that it was “a case where the reliability of the confession is ultimately an issue for the tribunal of fact”.
With respect to reliability, the Crown submitted that the defence argument that the Accused falsely confessed to details of the murder as a result of suggestions made by [redacted] is inherently implausible in the circumstances of this case. Mr Ozen SC pointed to parts of the conversation in support of an argument that the Accused had answered by way of “gratuitous concurrence”. I repeat the conclusions reached concerning “gratuitous concurrence” when addressing the s.85 objection (see [208] to [215] above).
To the extent that there are factual aspects of the admissions which may be said to be inconsistent with other known facts, I adopt the approach taken by Hamill J in R v Simmons; R v Moore (No. 2) and express the view, for the purpose of the s.90 objection, that these are matters for a jury to determine at the trial. As noted earlier, there are areas of factual inconsistency and areas of factual consistency emerging from an examination of the admissions so that the evidence is not all one way in this respect.
Further, the passage of some 24 years between the killing of the deceased and the making of the alleged admissions in January 2020 is pertinent to this aspect of the case.
With respect to voluntariness, the analysis in Tofilau v The Queen points to the admissions made by the Accused being voluntary. In earlier conclusions expressed in this judgment, I have identified aspects of the conversation between [redacted] and the Accused which fortify a conclusion that the alleged admissions made by the Accused were voluntary.
To the extent that the defence submission in support of the s.90 objection is based upon the suggested circumvention of the right of the Accused to decide whether to make an admission, I agree with the analysis of Weinberg JA in R v Weaven (Ruling No. 1) at [41]-[45] and [50]-[51], based upon Tofilau v The Queen. This argument does not assist the Accused in the present case.
I accept the Crown submission that, in circumstances where undercover police are excluded from the definition of “investigating official”, there was no obligation to caution the Accused.
The Accused does not specify any alleged breach of a legal right or identify any unlawfulness on the part of the police. The recurring complaint relates to the duration of the deception during the covert operation and the lead up to the conversation with [redacted] on 29 January 2020, together with what was said during that conversation itself with emphasis upon repeated denials by the Accused before an admission was made.
In any event, as the Crown has noted, the Accused had previously waived his right to silence and provided a statement on the day of Mr Dastan’s death and had engaged in two interviews thereafter in 1995 and 1996 with police in each of which he provided an exculpatory account.
With respect to submissions based upon a suggested inducement giving rise to s.90 unfairness, the defence submission is not assisted by what was said in Tofilau v The Queen. In the present case, any inducement was, for all practical purposes, given by a person whom the Accused understood to be an influential criminal who could corruptly make the murder investigation relating to the Accused “go away”, but that he (the criminal) needed the truth from the Accused to be able to do so.
With respect to the suggested breach of the common law accusatorial principle, I accept the Crown submission that the Accused is not assisted by Sidaro v R. The circumstances of that case are far removed from the present case. In any event, I consider that an argument based upon the common law accusatorial principle does not assist the Accused.
The Accused has failed to demonstrate that it would be unfair to use the evidence of the alleged admissions made on 29 January 2020 against him at his trial.
I decline to exclude this evidence under s.90 Evidence Act 1995 (NSW).

Objection to Admissions Upon the Basis of Unfair Prejudice Under s.137

EvidenceAct1995(NSW)

Submissions of the Accused

For the purpose of the s.137 objection, Mr Ozen SC conceded that the admissions were substantially probative evidence in this case. It was submitted, however, that other features of the evidence tended to contradict a number of the admissions so that the probative value of the admissions in this case was less than that identified, for example, in R v Fesus (No. 2).
It was submitted that the admissions in the present case were not entirely consistent with the facts that can otherwise be established from other evidence so that the danger of unfair prejudice to the Accused, having heard that the Accused admitted to murdering the deceased, was significant in this case. It was submitted that the jury may ignore or minimise any of the incorrect detail in the Accused’s admissions.
Accordingly, it was submitted that the evidence should be excluded under s.137.

Submissions of the Crown

The Crown submitted that admissions made by the Accused in this case are of very high probative value and of very significant importance to the Crown case. It was noted that the blunt fact is that, despite the Accused being the main suspect for 25 years, no charge has been laid arising from this murder until the present admissions were made by the Accused.

With respect to the defence submission that a jury may give undue weight to the admissions and ignore or minimise any of the incorrect detail or inconsistencies in the admissions, the Crown submitted that the nature of the asserted inconsistencies lay well within the grasp of the typical jury to assess with relevant assistance from the trial Judge. It was submitted that an argument as to potential misuse by the jury appears to have been rejected by Weinberg JA in R v Weaven (Ruling No. 1) at [61] and appears to be inconsistent with the approach expressed in Tofilau v The Queen at [290].
The Crown submitted that the probative value of the evidence is not outweighed by the danger of unfair prejudice and the admissions should not be excluded under s.137.

Decision on the s.137 Objection

Section 137 Evidence Act 1995 (NSW) refers to the term “probative value”. That term is defined in the Dictionary to the Evidence Act 1995 (NSW) as meaning “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.
The test of relevance is a relatively undemanding one. The enquiry for the purpose of s.55 Evidence Act 1995 (NSW) concerns how the evidence might affect findings of fact. The possible use to which the evidence might be put is to be taken at its highest: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [43]-[44]. No assessment of the credibility or reliability of the evidence is required: IMM v The Queen at [39].
Section 137 is expressed in terms of an evaluative judgment mandating exclusion: IMM v The Queen at [15]. Section 137 requires the probative value of the evidence to be weighed against the danger of unfair prejudice to the Accused. This requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the facts in issue: IMM v The Queen at [47].
The danger of “unfair prejudice” in s.137 directs attention to the risk that evidence may be misused in some unfair way by the tribunal of fact, so that (in this case) the jury may not comply with judicial directions as to its use: Papakosmas v The Queen at [91]; R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494 at [163]-[165].
As McHugh J observed in Papakosmas v The Queen at [91], evidence is not unfairly prejudicial merely because it makes it more likely that an accused person will be convicted.
There must be a risk that the evidence will damage the defence case in some unacceptable way, such as provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves: BJS v The Queen (2013) 231 A Crim R 537; [2013] NSWCCA 123 at [51]; Director of Public Prosecutions (Vic) v Hou at [95].
The existence of competing inferences (or alternative interpretations) available to be drawn from the proposed prosecution evidence, plays no part in the assessment of probative value for the purpose of s.137: R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335 at [196].
The admissions allegedly made by the Accused on 29 January 2020 are of very substantial probative value. They involve admissions on his part that he killed the deceased with the admissions capable of constituting complete admissions to the crime of murder.
In my view, the arguments which the Accused will seek to raise by reference to suggested inconsistencies between the admissions and factual matters identified in the forensic and objective evidence, are of a type which a properly instructed jury will well understand and be able to determine on the merits.
As noted earlier in this judgment, there are areas of suggested inconsistency and also consistency between the admissions and other evidence which will form part of the totality of evidence which a jury will be called upon to assess, in reaching a verdict with respect to the Accused upon the charge of murder.
In my view, there is no realistic prospect of a properly directed jury misusing the evidence of the admissions in this case.
Accordingly, I decline to exclude the evidence of the admissions under s.137 Evidence Act 1995 (NSW).

Conclusion and Orders

The Accused has not succeeded in any of his objections to the admissibility of the alleged admissions arising from the conversation with [redacted] on 29 January 2020.
Before concluding the judgment, I should advert to one further matter. The Crown drew attention (PT103) to the observations of Callaway JA in R v Tofilau (No. 2) (at [6]-[8]) concerning possible directions to a jury in that case (footnotes omitted):

“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.

7 There are no doubt other directions that will prove to be necessary or desirable in relation to confessions obtained in this way. The common law develops in response to experience and I do not claim to foresee what that experience may show, but it will often be appropriate to direct the jury that:
(a) the manipulation involved in this technique of investigation has the capacity to undermine the probative value that might otherwise be given to a confession;
(b) a person who believes that it is in his or her interests, and safe to do so, may well make an untrue statement; and
(c) the jury should consider any explanation for the confession put forward by defence counsel or by the accused in the course of his or her evidence or record of interview.

8 As in R v Grech, those are not intended as model directions but as guides to the substance of what is likely to be required. The strength of directions to the effect of (a), (b) and (c) in [7] may well depend on the circumstances of the instant case.”

The Crown accepted (PT103) that directions as stated by Callaway JA at [6] would be appropriate in this case, but stated that the Crown reserved its position concerning the necessity or appropriateness of the directions at [7].
Now that the Court has determined that the evidence is to be admitted at trial, I record these matters for future reference in advance of the trial of the Accused.
I make the following orders:

the Court declines to exclude under ss.84, 85, 90 or 137 Evidence Act 1995 (NSW), the admissions made by the Accused on 29 January 2020;

the Accused’s Amended Notice of Motion filed on 15 February 2021 is dismissed.

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Decision last updated: 08 December 2022

Medium Neutral Citation:	R v Kilincer (No. 2) [2021] NSWSC 829
Hearing dates:	15 February 2021, 16 February 2021, 17 February 2021
Date of orders:	8 July 2021
Decision date:	08 July 2021
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	1. The Court declines to exclude under ss.84, 85, 90 or 137 Evidence Act 1995 (NSW), the admissions made by the Accused on 29 January 2020. 2. The Accused’s Amended Notice of Motion filed on 15 February 2021 is dismissed.
Catchwords:	CRIMINAL LAW – pretrial application – accused charged with murder – accused seeks exclusion of admissions made to an undercover police officer during a covert “scenario” investigation – covert investigation methodology as described in Tofilau v The Queen (2007) 213 CLR 396; [2007] HCA 39 – objection on basis admissions obtained as a result of oppressive conduct under s.84 Evidence Act 1995 (NSW) – s.84 objection overruled – objection on basis admissions unreliable under s.85 Evidence Act 1995 (NSW) – construction of s.85(1) considered – s.85 objection overruled – objection on basis that evidence of admissions unfair to Accused under s.90 Evidence Act 1995 (NSW) – s.90 objection overruled – objection on basis that probative value of admissions outweighed by danger of unfair prejudice to accused under s.137 Evidence Act 1995 (NSW) – s.137 objection overruled – evidence admissible
Legislation Cited:	Acts Interpretation Act 1901 (Cth) Evidence Act 1995 (Cth) Evidence Act 1995 (NSW) Interpretation Act 1987 (NSW) Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW) Evidence (National Uniform Legislation) Act 2011 (NT) Evidence Act 2008 (Vic)
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 Bin Sulaeman v R [2013] NSWCCA 283 BJS v The Queen (2013) 231 A Crim R 537; [2013] NSWCCA 123 Deacon v R (2019) 282 A Crim R 303; [2019] NTCCA 21 Director of Public Prosecutions (Vic) v Hou (2020) 62 VR 1; [2020] VSCA 190 Director of Public Prosecutions (Vic) v Walters (2015) 49 VR 356; [2015] VSCA 303 Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299; [2010] NSWCA 34 Higgins v R [2007] NSWCCA 56 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Lauchlan v State of Western Australia [2008] WASCA 227 McDermott v The Queen (1948) 76 CLR 501; [1948] HCA 23 Morgan v State of Western Australia [2011] WASCA 185 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 39 R v A2; R v KM; R v Vaziri (No. 14) [2015] NSWSC 1544 R v Anunga (1976) 11 ALR 412 R v Bartle & Ors (2003) 181 FLR 1; [2003] NSWCCA 329 R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335 R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494 R v Cowan; Ex parte Attorney General (2016) 1 Qd R 433; [2015] QCA 87 R v Droudis (No. 8) [2016] NSWSC 1263 R v Esposito (1998) 45 NSWLR 442 R v Fesus (No. 2) [2015] NSWSC 1467 R v Helmhout [2000] NSWSC 185 R v Jelicic [2016] SASC 57 R v Lieske (2006) 166 A Crim R 213; [2008] ACTSC 97 R v Rooke (Court of Criminal Appeal, 2 September 1997, unreported) R v Simmons; R v Moore (No. 2) (2015) 249 A Crim R 82; [2015] NSWSC 143 R v Sumpton [2014] NSWSC 34 R v Tarantino (No. 6) [2019] NSWSC 1174 R v Taylor [2016] QSC 116 R v Tofilau (No. 2) (2006) 13 VR 28; [2006] VSCA 40 R v Ul-Haque (2007) 188 A Crim R 3348; [2007] NSWSC 1251 R v Weaven (Ruling No. 1) [2011] VSC 442 R v Xie (No. 13) [2015] NSWSC 2125 R v Ye Zhang [2000] NSWSC 1099 R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166 Sidaro v R [2020] ACTCA 11 Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39
Texts Cited:	Mildren, “Redressing the Imbalance Against Aboriginals in the Criminal Justice System” (1997) 21 Crim LJ 7 Pearce, “Statutory Interpretation in Australia”, 9th edn, 2019
Category:	Principal judgment
Parties:	Regina (Crown) Kubilay Kilincer (Accused)
Representation:	Counsel: Mr B Hatfield (Crown) Mr E Ozen SC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Abbas Jacobs (Accused)
File Number(s):	2020/30002
Publication restriction:	Non-publication orders are in force with respect to the details of a police operation and identities of police involved.