R. v. Marks

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 344 of 2004

THE QUEEN
	v.
MATTHEW JOSEPH MARKS

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JUDGES:	CALLAWAY, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 - 21 September 2005
DATE OF JUDGMENT:	21 April 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 42

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Criminal law – Murder – Application for leave to appeal against conviction – Applicant involved in purported criminal activity with undercover police operatives – “Scenario evidence” – Confessions made to undercover operatives – Whether confessions voluntary – Whether made to persons in authority – Whether properly admitted having regard to discretionary considerations – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. with Ms S.E. Pullen, S.C. and Dr S.B. McNicol	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C. with Mr L.C. Carter	Victoria Legal Aid

CALLAWAY, J.A.:

I agree with Vincent, J.A.

BUCHANAN, J.A.:

I also agree with Vincent, J.A.

VINCENT, J.A.:

The applicant was found guilty in the Trial Division of this Court of the murder of his great aunt, Margaret Mary O’Toole (born 13 July 1932), on 7 April 2002.[1]
[1]On 24 November 2004, the learned sentencing judge imposed a term of imprisonment of 23 years with a non-parole period of 18 years.

His application for leave to appeal against conviction is based on the following grounds:

1.The learned trial judge erred by failing to exclude the confessional statements or admissions made to the covert police operative “G” on 27 November 2002.
PARTICULARS
The learned trial judge erred by:-

(a)finding that the statements by the applicant were made voluntarily;
(b)finding that the statements by the applicant were not inherently unreliable;
(c)failing to exclude the statements by the applicant on the basis of unfairness and/or public policy; and
(d)finding that the probative weight of the statements by the applicant outweighed any prejudicial effect.

2.The learned trial judge erred by failing to exclude the conversations between the applicant and the covert police operative “R” on 27 November 2002[2].
[2]A further ground (ground 3) was not pursued and need not be addressed.

The Background

The deceased lived alone at unit 15/55 Serrell Street, East Malvern, and was regarded as reclusive by her family. She nevertheless maintained weekly telephone contact with her brother, Paul O’Neill, and they met for lunch about once every three months. The applicant was the only relative who visited her with any frequency and he appeared to have had a close relationship with her. The deceased also had fortnightly telephone contact with her friend, Phyllis Schumann, usually on a Saturday.

Dean William Vlek was a long standing friend of the applicant. Throughout their friendship, Vlek was made aware that the deceased was relatively wealthy. He told Vlek that he, the applicant, was one of the beneficiaries under her will.

John Paraskevas was a partner and the Senior Fund Manager of Faraday and West Pty. Ltd., a mortgage broking firm. In April 2001, the deceased, who was accompanied by the applicant, approached the firm to seek funds for use in a business investment. It was agreed that the sum of $28,000 would be advanced for this purpose, to be secured by mortgages over units 15 and 29, 55 Serell Street[3]. The applicant was present when the loan was negotiated and co-signed some of the documentation.[4]
[3]The amount advanced, after deduction of various costs and charges, was $25,010.72 and it was deposited into the account of “J.J. Marks” held with the ANZ Bank.
[4]Pursuant to s.149A of the Evidence Act 1958, the applicant admitted that on 27 April 2001 a cheque in the sum of $25,010.72 was deposited into his ANZ bank account (No.013-347 5848 04263) and that on 2 May 2001, he withdrew the sum of $24,952.50 from that account.

March 2002

Elizabeth Thuan, the proprietor of a secretarial service, stated that at about 11.30 a.m. on Thursday 14 March 2002, the deceased attended at her premises with a draft hand written letter that she wanted typed. She was told that it would be ready in half an hour. When it was finished, the deceased took both the handwritten letter and the typed version with her. The letter, which was addressed to mortgage brokers, Faraday and West Pty. Ltd., was also stored on the secretarial service’s computer[5]. It gave notice that the deceased intended to pay out the loan mentioned above and requested a final settlement figure and advice as to whom payment should be made. Paraskevas received this letter[6].
[5]A copy was tendered as Exhibit “G”.
[6]This letter was tendered as part of Exhibit “H”. The letter bore the signature of the deceased and corresponded with Exhibit “G”. Exhibit “H” also included a filed copy of a letter dated 19 March, 2002 responding to the letter from the deceased dated 14 March 2002.

Andrew Zheng-Macdonald, the lessee of 80 Carmichael Road, East Oakleigh, sub-let rooms in the house to other tenants. On 28 March 2002, the applicant signed a sub-lease agreement with Zheng-Macdonald for one of them. The applicant moved in on the following Monday (1 April 2002).

In 2002, Good Friday fell on 29 March 2002.

April 2002

The applicant admitted[7] that, in April 2002, he held four separate credit card accounts with four different financial corporations. Their combined credit limits totalled $24,500.00 and total amounts owing were $28,503.85. In respect of each, the applicant had overdrawn the credit limit. The amounts overdrawn ranged from $717.90 to $1508.91. On 5 April 2002, Citibank obtained default judgment against him in the sum of $7,219.90.
[7]Pursuant to s.149A of the Evidence Act 1958.

On Thursday 4 April 2002, Vlek received a telephone call from the applicant. They arranged to go to the movies on the following Saturday night. Vlek recalled having a conversation either on that occasion or on the Saturday night in which the applicant said he would be having lunch with the deceased on the coming Sunday.

The applicant admitted[8] that at 5.19 p.m. on Saturday 6 April 2002 a call was made to the deceased’s home telephone number from a public telephone box outside a milk bar at 205 Huntingdale Road, Huntingdale. The duration of the call was 25 minutes and two seconds. He also admitted that at 5.59 p.m. on Saturday 6 April 2002, Phyllis Schumann made a telephone call to the deceased which was answered by her.
[8]Pursuant to s.149A of the Evidence Act 1958.

On the same night, Vlek picked up the applicant at his home and they drove to the Chadstone Shopping Centre where they had something to eat and Vlek purchased a CD.[9] They then attended the Cinema Complex and watched a movie which ended between 8.30 to 9.00 p.m. Vlek then drove the applicant back to his home.
[9]The receipt confirming the time and date of that transaction was subsequently produced to the police.

The applicant admitted[10] that, at 6.33 p.m. on Sunday 7 April 2002, his father, Michael Marks, made a call to the applicant’s mobile telephone which was not answered. He further admitted that no telephone calls were made to the deceased’s home telephone on Sunday 7 April 2002 and that, as from Monday 8 April 2002, all telephone calls made to the deceased’s home were unanswered.
[10]Pursuant to s.149A of the Evidence Act 1958.

The applicant admitted[11] that at 12.35 a.m., on Monday 8 April 2002, a call to Silver Top taxi service was made from a public telephone box at 1113 Dandenong Road, East Malvern. The taxi service records indicated that a call was received for a taxi to pick up a person identified as “Mark” from 1113 Princes Highway, Carnegie, to go to Oakleigh, and that a taxi was allocated this task at 12.39 a.m. The driver was recorded as having reported that he had the meter running and had not picked up any passenger[12].
[11]Pursuant to s.149A of the Evidence Act 1958.
[12]See Exhibit “J” and the evidence of Sandra Williams.

Ray Dyson delivered advertising material in the East Malvern area. He was shown a number of catalogues recovered from the deceased’s letter box on 17 April 2002. He said he had delivered at least three of them over the weekend of 6 and 7 April 2002.

Jim Revell of Australia Post stated that coded postmarking on two envelopes recovered from the deceased’s letter box on 17 April 2002, were respectively processed at different mail centres on 5 April 2002 and that, in the normal course of postal delivery, they would have been delivered to the nominated address on Monday 8 April 2002.

Quyen Truong of Australia Post examined the bar code stamped on an envelope recovered from the deceased’s letter box on 17 April 2002 which was addressed to the deceased from the Eye Research Foundation. The bar code disclosed that the letter was processed on 5 April 2002 and that, in the normal course of postal delivery, the letter would have been delivered on Monday 8 April 2002. Truong checked the Victorian mail delivery history for the period 5 to 8 April 2002 and no mail delivery delays were recorded for this period. Had there been a mail delivery delay, a letter processed on 5 April 2002 would have been delivered on 9 April 2002.

The applicant admitted[13] that at 6.34 p.m. on 8 April 2002, a call was made from the public telephone box at 205 Huntingdale Road, Huntingdale, to the applicant’s father, Michael Marks, in Tungamah. The duration of the call was 11 minutes.
[13]Pursuant to s.149A of the Evidence Act 1958.

He also admitted[14] that, on 9 April 2002, he deposited a cheque[15] in the sum of $4,000 (dated 5 April 2002) into his ANZ bank account and that, on 11 April 2002, he withdrew the sum of $3,000.00 from that account.
[14]Pursuant to s.149A of the Evidence Act 1958.
[15]This cheque was tendered as Exhibit “N”.

David James Black, Forensic Scientist and Document Examiner, examined 13 Commonwealth Bank cheques for a bank account held by the deceased and compared the signatures with a crumpled page of hand written notes made by her. He isolated and enlarged four specimen signatures[16], including the signature on a cheque dated 5 April 2002 and made out to “Matthew Marks” for the sum of $4,000[17]. He reached a “definite” conclusion that the signature on that cheque was a simulation of the deceased’s signature. He compared the simulated signature with the handwriting on the rest of that cheque and concluded that the entire cheque had been filled out by the same writer[18].
[16]Exhibit “D”.
[17]This cheque was tendered as Exhibit “N”. The enlargement was tendered as Exhibit “E” with the four specimen signatures tendered as Exhibit “D”.
[18]A hand written note and various cheques with the deceased’s handwriting on them, along with samples of the applicant’s handwriting, were tendered as Exhibit “F”.

A neighbour of the deceased, Thelma Hannel, stated that the deceased was particular about emptying her letter box every day. On Monday 8 April 2002, Hannel noticed a parcel in the box. A couple of days later, she saw that it was still there.

On or about 9 or 10 April 2002, Paul O’Neill tried to telephone the deceased and received a busy signal. On the following Monday (15 April 2002), O’Neill telephoned and again received a busy signal. He had the same response when he called again on Tuesday 16 April 2002.

The applicant admitted[19] that, at 2.38 p.m. on Monday 15 April 2002, he rented a Holden motor car from "Rent-a-Bomb” in Warrigal Road, Oakleigh. He signed the rental agreement and returned the vehicle on the following day at 2.23 p.m.
[19]Pursuant to s.149A of Evidence Act 1958.

Wednesday 17 April 2002

Paul O’Neill telephoned the deceased on the morning of Wednesday 17 April 2002, at a time when he knew that she would normally be attending an exercise class. He found that the telephone still gave a busy signal and then contacted Telstra. He was advised that there was something wrong with the instrument and told that he should contact the deceased and arrange for it to be rectified.

O’Neill arrived at the deceased’s home soon after 1.00 p.m. Her letterbox was overflowing with papers and letters[20]. He found that the front screen door was closed, but not locked, and that the timber front door was open. He saw a package on the floor. He looked into her bedroom which appeared to have been ransacked. He went into the lounge room, which was in semi-darkness, and observed that the television set was switched on. He went into the kitchen and found that the back door was locked. He returned to the lounge room and saw a rug draped over a couch with the deceased underneath it. He lifted the rug and touched her. She was cold. After ascertaining that the telephone in the unit was not working, he went to a neighbour’s home and contacted the emergency services.
[20]Exhibit “A”.

The first ambulance officer to enter the premises was Jane Adair. She saw the deceased covered by a quilt. She had been dead for some time and it was apparent that she had suffered trauma to the left side of her face. There was blood spatter down the side of her left cheek bone and on the adjacent wall.

Adair replaced the quilt and told a Fire Brigade officer who had also attended to remove his equipment. This was done carefully so as not to disturb what was obviously a crime scene.

Detectives from the Malvern Criminal Investigation Unit arrived at 2.05 p.m. and entered the premises shortly thereafter. They found that the front left bedroom had been ransacked. They made a cursory inspection, ascertaining that this was a suspicious death, and the Homicide Squad was contacted.

The Informant, Detective Senior Constable Buick of the Homicide Squad, attended at about 3.05 p.m.

Documents located inside the premises included a hand written draft letter, addressed to John Matthis and Co., pertaining to the mortgage from E.L. Rodgers located in the kitchen rubbish bin[21]; a letter from John Matthis and Co., located on the coffee table[22]; a 60-plus concession Daily Metcard dated 6 April 2002 and a senior concession cinema ticket dated 6 April 2002 for a midday screening, which were found on the floor of the front bedroom[23]; and further handwritten draft letters pertaining to the mortgage from E.L. Rodgers[24]. Also found was a solicitor’s letter addressed to the deceased and the applicant setting out the amounts payable for the final discharge of the mortgage over units 15 and 29, 55 Serell Street, East Malvern. On the coffee table was a T.V. guide which was open at the page for Sunday 7 April 2002 and certain television programs had been marked out. A Herald Sun “Body and Soul” lift out, dated 7 April 2002, was also located nearby.
[21]Exhibit “K”.
[22]Exhibit “L”.
[23]Exhibit “M”.
[24]Exhibit “Q”.

Senior Constable Carrick, the crime scene examiner, attended at 4.00 p.m. He found the bedroom had been thoroughly ransacked, although various items of jewellery and a boxed Easter egg remained and were quite visible. This was the only part of the house that appeared to have been searched.

Senior Constable Carrick examined the kitchen on the following morning. Two telephone appliances were connected, one a cordless telephone and answering machine, and the other a wall mounted corded telephone hand set. The plug for the wall mounted telephone was partially pulled out. In the third drawer from the top of the kitchen drawers was a black handled claw hammer.

The premises were also examined by a biologist, Rebecca Heyes, and various samples were taken and tested for DNA comparison. Heyes did not detect the presence of DNA attributable to a person other the deceased.

From her examination of the blood splatter, Heyes concluded that the deceased had been attacked while seated in the chair in which she was found. Heyes also noted “cast off” blood spots that had been formed from blood drops cast off from a bloodied implement as it was repeatedly swung through the air in an arcing motion down onto the deceased. The spatter was consistent with the deceased having received more than one blow to the head.

Professor Stephen Cordner subsequently conducted an autopsy and observed the multiple and gaping fractures of the skull that would have required a minimum of 15 to 20 blows with a hard blunt instrument such as a hammer. The deceased had a crushing injury to the neck which had fractured the trachea, the epiglottis and the larynx. Her right hand collar bone was fractured into many pieces. Both of the collar bone joints, had been fractured.

Professor Cordner was unable to express an opinion as to how long the deceased had been dead or whether the neck injury had been occasioned by a smaller number of blows by an object (such as a shod foot) or a much larger number of blows with a smaller heavier blunt instrument (such as a hammer). He identified the causes of death as the comminuted skull fracture and the crushed larynx or neck injury.

On 17 April 2002, Vlek received a telephone call from the applicant who advised him that his aunt had been found murdered in her home and that he had just learned what had happened. The applicant appeared upset. As a form of solace, Vlek proposed that they go to the movies on the following Saturday. The applicant and Vlek went to the movies again on Sunday 20 April. On this occasion, the applicant told him that there was a problem with the deceased’s will, because it appeared that there was a second one.

Zheng-Macdonald recalled a Wednesday evening at a time when he was watching the television news. The applicant entered the lounge room and said, “Watch the news because I‘ve just had a phone call about my auntie, from my mother, who told me that my auntie has passed away in a murder and it is going to be on the news”. They then watched the news item together, after which the applicant became emotional. Zheng-Macdonald asked him if he knew much about the circumstances of his aunt’s death and he said that he knew only what his mother had told him and what was on the news. The applicant then went into his bedroom.

The Applicant’s First Interview – 6 May 2002

On Monday 6 May 2002, Detective Senior Constable Buick and other police officers attended at the applicant’s home. The applicant was present and in the custody of other detectives. Detective Senior Constable Buick advised him that he was under arrest for the murder of the deceased. The applicant was cautioned and a search of the premises was conducted. The applicant’s computer and a quantity of CDs were seized.

The applicant took part in a video tape recorded interview[25], in the course of which he stated that the last time that he saw or spoke to the deceased was on Friday 5 April 2002. He had travelled by train from Huntingdale to Carnegie station and walked to her home. He estimated that he was there for between 30 and 60 minutes and that he left at about 5.45 p.m. His account of that visit included a discussion concerning the loan and the mortgage arrangements. The applicant stated that the deceased was worried about her health and had told him that, if she had to go into a retirement home, she could encounter difficulty because she may not be able to sell her house. He stated that she had drawn down her superannuation fund and discharged her mortgage so that she could get her title back. He requested more money for his own needs from her and she told him that he could have up to $5,000. He stated that she produced her cheque book and told him to fill it out. He stated that he filled out the cheque in front of her, handed it to her and she signed it in his presence. He stated that it was agreed that he would endeavour to repay the sum owed by him on a monthly basis. The applicant stated that his income was approximately $35,000 to $38,000 per annum and that he proposed paying the deceased somewhere between $100 and $200 per week until the loan was paid out. He stated that his total debts were in the vicinity of $50,000. He stated that he had suffered from a gambling problem which had been a lot worse in the previous two years, but he did not think he had a severe problem at that time. He confirmed that the cheque of 5 April 2002 was in the sum of $4,000 and that he initially withdrew $3,300 and the rest later. The applicant stated that the reason that he had attended at the deceased’s home on Friday 5 April 2002 was to drop off an Easter egg and a block of chocolate. He would have presented the cheque on Tuesday 8 April 2002. The applicant had no recollection of what he did on the weekend of 6 and 7 April 2002. He recalled that on Thursday 10 April 2002, he withdrew money from his bank account.
[25]The video tape recording was tendered as Exhibit “P”.

The applicant was shown a cheque dated 8 April 2002 and it was put to him that the signature had been simulated. The applicant denied forging the signature and indicated that he was prepared to provide samples of his handwriting for comparison. It was put to him that on Saturday 6 April 2002 he telephoned the deceased from a public telephone box in Huntingdale Road. He responded that he would not have made that call. He also stated that he had expended all the money advanced to him by his aunt.

Other Events

During cross-examination by counsel for the applicant, Vlek confirmed that, when he made his police statement on 14 May 2002, Detective Senior Constable Buick had told him that the applicant was a suspect for the murder of the deceased. He also stated that the Informant told him that the applicant was a homosexual with a preference for Asian men.

Scenario Evidence

In furtherance of the investigation, the Informant made a request for assistance from the Victoria Police Undercover Unit. Covert “Operation Satchel” was commenced on 25 September 2002 and finished on 27 November 2002. Sergeant Cody was appointed as Controller for this operation. Implementing the technique adopted in each of the cases presently under consideration[26], the police staged a series of 16 scenarios in which operatives posed as members of an organized criminal gang and interacted with the applicant[27].
[26]R. v. Tofilau [2006] VSCA 40; R. v. Hill [2006] VSCA 41; R. v. Clarke [2006] VSCA 43; and R. v. Favata [2006] VSCA 44.
[27]A chronology of these scenarios was tendered as Exhibit “AA”.

The operatives who gave evidence at the trial under assumed names were “R” and “G”. “R” also gave evidence concerning the nature of the initial briefing.

“Operation Satchel” commenced with the placement of a female operative (“B”) as a work experience student in the applicant’s workplace. “R” adopted the role of “B’s” boyfriend and drove her to work on the chance that the applicant would see him dropping her off and that this would facilitate the making of contact with him.

“R’s” first meeting with the applicant occurred on 9 October 2002. He spoke to the applicant about computers and said that he intended to buy one for “B”. He asked the applicant whether he would assist him and it was arranged that they would meet for this purpose.

On Saturday 12 October 2002, “R” picked up the applicant at his home. At their previous meeting, the applicant had indicated that he was looking for somewhere else to live. “R” told him that he had an apartment that had been vacant for some time in the St Kilda area, near The Esplanade, and that he was concerned about squatters or burglars. He said that he was looking for someone whom he could trust to occupy it. He indicated that, if the applicant was interested, the applicant would help him out by living there. He said that he needed someone to protect the premises and to collect the mail. He described it as just an average apartment but that, if the applicant wanted to have a look at it, he could do so. The applicant agreed and they drove to St Kilda where he was shown a fully furnished and well appointed apartment. He readily agreed to move in and he was given the keys.

After establishing a relationship of ostensible friendship with the applicant, “R” who presented himself as a member of an organized criminal group, offered him the opportunity to participate in what the applicant believed were a number of serious criminal activities. They involved the sale of firearms, extortion, burglary, dealing in stolen property and illegal dealings with corrupt public officials.

At one stage the applicant commenced to ask about the “crew” and expressed an interest in joining them. “R” told him of the need for trust, honesty and loyalty among the members of such a group. He stated that the acceptance of this creed was the reason for their success. This creed was reiterated and reinforced in each subsequent scenario.

The applicant said that he was eager to participate in the gang’s activities and indicated that he would be able to arrange for time off from his job whenever he was required.

In one of their conversations, the applicant told “R” that he was very careful about what he said over the telephone. “R” responded that the crew’s telephones were “clean” (meaning that they were not monitored by the police). He explained that the police had to follow certain procedures to be able to intercept telephonic communications and “because we got people on the payroll, as you know, we find out.” The applicant asked “R” whether he would be able to ascertain if there was “a tap” on his telephone.

The applicant elaborated on this request saying, “But back in April I was considered a suspect for a homicide … and I know my phones were being tapped”. He said that he should have mentioned this earlier, but he was no longer a suspect as six months had passed since the event and he had not been charged. However, it was due to his concern about this matter that he did not use the landline telephone at the St Kilda apartment to contact “R”. He said that, if it was “clean”, he would be very relieved. The applicant said, “I don’t want to put a spanner in the works”. “R” replied, “No, that’s not a spanner”.

A little later, on the same occasion, he remarked, “I tell you one thing, you know, the last thing you bloody want in your life is the Homicide Squad sniffing around after you”. “R” said that he did not need to know anything and commented, “We’ve all got our own skeletons”. “R” also remarked on the applicant’s discretion, saying that he thought that he was “a careful person”, and then elaborated what he meant: “… you’re careful about what you say and who you say it to”.

Some days later, in the course of another scenario, “R” again spoke about trust, honesty and loyalty and noted that those qualities were shared with the motorcycle gang members who were also actors in the scenario. He explained to the applicant that “it’s the things that they don’t know about that can be a problem, but if they know these things, then problems can disappear.” The applicant said that he was praying that his telephone would not be found to be monitored. “R” reiterated that there were no secrets within the crew, that they all told each other the truth and that “the boss”, “G”, would “wipe” anybody who lied to him.

On 13 November 2002, the applicant met “G” for the first time at a hotel. “R” introduced him to “G” and they had a brief conversation.

A few days later, in the course of another conversation, “R” told him the applicant that his mobile telephone was “Okay” and that it would be checked on a weekly basis. If anything happened, the applicant would be informed.

On 18 November 2002 at 5.45 p.m., the applicant was contacted by “R” who, upon not receiving an answer, left a voice message. The applicant returned the call shortly afterwards and agreed to assist in activities to be undertaken on that night. When they met, “R” told him that “G” wanted to have a check made of his background and asked the applicant to write down his name and date of birth. The applicant set out these details on a piece of paper and gave it to him. “R” indicated to the applicant that “He’ll get you checked out. Once you’ve been checked, you know what I mean, no worries mate, you’ll be on board”. The applicant responded “Oh cool”. “R” said, “Once you’re on board, mate, you’ll get a better cut”. “R” advised the applicant that there were some “big jobs” in contemplation that would be much more remunerative than the activities conducted on that night.

In their final conversation that night, “R” told the applicant that if he joined the crew and the “big jobs” came up, “you probably won’t be working”. The applicant understood this to be a reference to his current employment. He said that this was what he desired and that he had no hesitation in joining them. The applicant told “R” that that was one of the questions which “G” had asked him when they met on 13 November. In further discussion, “R” repeated that if he ever lied to “G” he would be out of the crew no matter how useful he had been.

On Friday 22 November 2002, “R” and the applicant met with “D”, another undercover operative, who advised that the applicant’s share of the proceeds of one of their activities was $12,000, which was to be placed in a safety deposit box until the results of his background check had been received. It was indicated that “R’s” share was $40,000.

In conversations during that day, “R” advised the applicant to pay his debts off slowly rather than using the whole $12,000 as that would attract attention. The applicant was taken to a bank where a safety deposit box was opened and he was present when the money was placed in it. He was told that it would be his as soon as the results of his check were received. There was discussion about the amount of time that this process was taking. The applicant said that he had only one criminal conviction and expressed concern that the Homicide Squad were “sniffing around”. “R” told him that if there was a problem it could be “fixed”, but he continued, “some dramas take a bit more fixing than others”.

“R” enquired why the applicant remained concerned about having his telephone tapped. The reason, the applicant explained, was that about three months earlier a number of his friends had called and asked him whether he had murdered someone. The applicant indicated concern that the checking process had not been completed.

Later that day the applicant received a call on his telephone, from someone at his workplace. He told “R” that the “fucking cops rocked up to my work”. He became quite agitated and started swearing but said, “It won’t be a worry, fuckin sends alarm bells in my mind, that’s all”. The applicant was dropped off at his workplace and paid $100.

The applicant and “R” had telephone contact on 25 and 26 November. The evidence indicated that, on these occasions, the applicant seemed tense. The applicant and “R” met outside the applicant’s workplace when he finished work on 26 November. He expressed frustration that he was not yet part of the crew and indicated that he was concerned that the Homicide Squad had visited his workplace. “R” assured him that if there were any problems they could be handled. He reiterated that the crew looked after each other, that the applicant was regarded as a potentially valuable member of their team, that he would soon be accepted into the group and that they would protect him.

The Final Scenario - Wednesday 27 November 2002[28]

[28]The audio and video recordings made that day were tendered as Exhibits “S”, “T”, “U”, “V” and “W”. The transcripts were tendered as Exhibit “X”.

When “R” collected the applicant outside his workplace, the applicant was told that “G” wanted to talk to him and resolve his problems. They drove to Crown Casino where they met with “D”, and the applicant was subsequently taken to a room in the Crown Towers Hotel by “A”, another undercover operative.

He was then left alone with “G”. “G” told him that “R” spoke very highly of him and said that he was particularly interested in the applicant’s computer skills. They talked about the activities in which the applicant had engaged with “R”. “G” confirmed that he had not yet brought the applicant into the crew because he had to have some checks made. However, he assured the applicant that they could “fix” anything. He said that he wanted to talk openly, but indicated that if the applicant was not prepared to do so, he could walk out and there would be no hard feelings. There would be no evidence that they had ever met and the applicant would not be able to find out who he was. Accordingly, he was not afraid that the applicant could create any problems for him.

“G” stated that his inquiries had disclosed that the applicant was a suspect for a murder. He expressed the view that he did not care whether he was responsible or not, but said that he needed to know what had happened so that the situation could be handled.

The applicant then made a number of self incriminatory statements that can be summarised as follows:

On Saturday 6 April, he made a telephone call to the deceased from a public telephone box and arranged to meet her on the following day. On 7 April 2002, he went to the Chadstone Shopping Centre where he purchased a pair of women’s gloves made of fabric. He then went to the deceased’s home taking with him a bag with a hammer in it. He arrived at about 4.00 p.m. and had a couple of drinks with the deceased. She showed him a letter of a financial nature and said that she was going to finalise the matter in a month’s time. He said that he had touched that letter. After they had dinner, she started watching television, during which the applicant said that he needed to go to the toilet. He had earlier placed his bag in the bathroom. He put on the gloves and took out the hammer and then walked behind the deceased and struck her on the back of the head with the hammer about six times. Her hands went up. He then struck her in the throat another six times. He saw that she had stopped breathing and walked around in a panic for about an hour. He had previously unplugged the telephone because his father had tried to call him on his mobile telephone and he knew that as soon as he failed to answer, his father would then call the deceased. After he killed his aunt, he returned the telephone plug into the socket but it did not go back in properly. He knew this because the people who subsequently rang couldn’t get through. He then went to the bedroom still wearing his gloves and ransacked it to make it look like a burglary “gone wrong”. He was looking for her jewellery or money so that he could get some financial benefit out of it as well. He found nothing apart from fake jewellery and her bag which had money in it. He also took the rings off her fingers and her purse, which contained her credit cards. He kept his gloves on as he went through all of the deceased’s paper work. He took away with him: the house keys, the deceased’s purse, the deceased’s rings as well as the hammer, the gloves and the bag he had brought with him. He did not touch or move the deceased. He took a bed covering from the bedroom and put it over her. He did not know why he did that. He found a rag and used it to rub down everything he could. He put the plates and cutlery he had used that evening along with the food scraps into a plastic bag which he also took away. He dumped this in a neighbour’s rubbish bin about 10 or 15 houses further down the street. He shut the door and went to the Carnegie Railway station, arriving there just after midnight. He entered the station and pressed the button for the information service and found that there were no more trains that night. The applicant noted that he may have been picked up on a security camera at the Railway Station. “G” asked which station it was and the applicant confirmed it was Carnegie on the Cranbourne/Pakenham line. “G” indicated that he would arrange for his corrupt police officer to check that possibility. The applicant went to a public telephone box to call for a taxi which picked him up on the Princes Highway. The applicant stopped the taxi before reaching 80 Carmichael Road where he lived, so that he could enter the house without waking his housemates. He removed his shoes and all his clothing which he cut up into shreds and placed in a plastic bag. He also put shoes he was wearing into a plastic bag. He kept these items in his room until the following Monday night when everyone put their garbage bins out for a Tuesday morning collection. He went about two blocks from his house and put both bags into a neighbour’s bin. The hammer and the gloves were thrown into a bin at the applicant’s home. He disposed of the rings he had taken in the same fashion. He retained the keys he had taken from the deceased’s unit.
He returned a week later and used the keys to enter the deceased’s home. He saw that everything was as he had left it and noted that the scene “stunk like hell”. He wiped the door to prevent any fingerprints being left. The purpose of this return visit was to leave the door open so that someone could find her. That visit occurred at night and he had hired a car that day from Rent-a-bomb in Oakleigh so that he could do some grocery shopping, and he still had the receipts in his home. The applicant stated that the Homicide Squad had found out about the car hire but as it was a week later they wouldn’t have connected it with the murder. The applicant then drove home. He disposed of the keys by wrapping them up in paper and putting them in a neighbour’s rubbish bin on the next Monday. He disposed of the deceased’s credit cards in the same manner. The money he had taken from the deceased’s purse was between $300 and $500. He wrote out a cheque from the deceased’s cheque book for the sum of $4,000 payable to himself and banked it. He copied the deceased’s signature from her driver’s licence and other documents that she had in her purse. He wrote only the one cheque and he disposed of the cheque book in the same manner as everything else.

“G” asked the applicant why he had killed his aunt. He responded that he was in debt and that he owed money to her. He did not want to pay her back on a monthly basis. He said that he had next to no cash because he would gamble it away at the Casino. He said that he believed that he was a beneficiary of the deceased’s will but he did not know for sure if that was the case. He said that all he knew was that the house had been sold, but no will had been found and, as he was not a blood relative, he would not have a claim. The applicant said that he thought that he would benefit from the will as well as eliminating the debt that he owed to the deceased. The applicant stated that he had answered police questions, but had refused to provide his DNA. The applicant related to “G” what he recalled the police had asked him and what he had told them. They discussed any possible loose ends, such as whether or not the deceased might have told someone else that the applicant was due to come around on the Sunday. They discussed whether or not a girlfriend could provide an alibi for him. The applicant said that he did not have a girlfriend and admitted that he was homosexual which the police had also ascertained. “G” said that they could come up with “a bloke”. The applicant said that he would have to be Asian because the police knew that he likes Asian men.

They went through all the details which the applicant stated he could remember in order to ascertain whether there was anything else that could implicate him. The applicant said that the hammer was taken from his flatmate who may not yet have noticed that it was missing. In any event, he had not said anything about its absence. The applicant described the hammer as rusty and with a black rubber covered handle with air holes. He made a drawing to indicate its size and shape.

“G” said he had to make some calls and suggested that the applicant go with “R” for coffee, while he would try to clear up the matter as soon as possible. Upon being summoned by telephone, “A” and “R” returned to the hotel room. “G” confirmed he had some calls to make, instructing them that there was to be no drinking of alcohol as they had a “big job on” that night. “R” and the applicant left.

The applicant was taken down to a bar[29] where he said to “R”, “look don’t get me wrong, you know it’s the only lie I’ve given you”. “R” responded “sorry mate”. The applicant said, “It’s the only lie”. He replied, “You’ve never lied to me, mate”. “R” gave evidence that he noticed that the applicant had a look of disappointment in his eyes as though he had breached “R’s” trust in him.
[29]The subsequent conversation with “R” was recorded and tendered as Exhibit “U”.

They sat in the lounge and the applicant commenced to relate what he told “G”. He said that one reason for leaving the door of his aunt’s unit open was that had he left it locked, it would have shown that someone who knew her had gained access. He told “R” that he kept a journal of all the police contacts he had had and that it was saved onto a CD in a file, which was password protected. “R” repeatedly suggested that the CD should be put in a security box. The applicant said that he had the CD in his briefcase. He said that he never kept it at home, as his home had been searched while he was at work. He also kept his passport in the briefcase in case the police wanted to take it from him. The applicant expressed enthusiasm at the prospect of joining the crew and having his problems resolved. After receiving a telephone call from “A”, “R” advised the applicant that “A” was coming back down. The applicant asked whether he was going to be taken back to the room, commenting that he had been searched when he went there previously. “R” said that they had to make sure that he was not recording anything.

“A” and “R” took the applicant back to the hotel room and he was again left alone with “G”. “G” asked him with what he had cut up his clothing. The applicant said that he used scissors and “G” asked where they were. The applicant said, “Shit they’re still at home, yeah, in “R’s” St Kilda apartment”. “G” suggested that he go there with “R” to pick up the scissors and the car rental receipt. “G” asked the applicant whether he ransacked the premises “just a little bit or a lot”. The applicant said, “the bedroom was totally topped over”.

“G” asked about the Saturday night before the murder, reminding the applicant that he had said something about what happened after he had made the telephone call. The applicant said that he had gone home and that his friend, Dean Vlek, picked him up and they went to a movie. He said that the police had taken a statement from him, expressing some concern as to what might be in it. “G” told the applicant that he was to go with “R” back to the apartment to pick up the scissors. He also said that he then required the applicant to meet the corrupt police officer who had “something” for him.

When “R” and “A” returned to the hotel room, “G” instructed “R” to take the applicant to the apartment as there were a pair of scissors and some paper work there that they needed to collect. “G” then directed that they meet the corrupt policeman (identified as the “grey headed bloke”) behind the “cop shop”. They discussed how long the trip to the apartment would take, so they could estimate when they would reach the rear of the St Kilda Road Police Complex[30].
[30]The following conversation between the applicant and “R” was transcribed (Exhibit “X”) and recorded (Exhibit “W”). Both exhibits were tendered.

“R” asked what the applicant had done with his clothes. The applicant started to relate what he had done with them and relayed questions that “G” had asked, such as what Council collected the rubbish. He told “R” that he had approached the deceased from behind and “gave her a big whack behind the head”. He said that he had been told that the first blow had killed her. He said that he hit her another five times. He then hit her on the throat another six times to make sure that she was dead, using his hands and body to demonstrate the manner in which he hit the deceased with both hands, grasping the hammer and bringing it down from above down to head height. He said that he removed the rings from the deceased’s fingers to make it look like a burglary. The applicant repeated many of the details that he had given to “G”. He noted that there would be no problem with fingerprints on the cheque he had banked because he had told the police that his aunt handed it to him on Friday 5 April. He then realised that he had dated the cheque two days later when he filled it out.

According to “R”, while in the apartment, the applicant was in a state of agitation as he searched for the car rental receipts, grabbing boxes and ripping them open. He was sorting through papers with sweat starting to pour off his brow, when he found two “Rent-a-Bomb” receipts and handed them to “R”. “R” noticed a newspaper cutting on the couch which he picked up. It referred to a number of murders that had occurred over the previous year or two. He enquired “Which one was it?” whereupon the applicant pointed out the deceased’s name.

After recovering the scissors and the receipts, the two men drove to the rear of the St Kilda Road Police Complex where the Informant approached and arrested the applicant.

Shortly afterwards, a tape recorded interview was conducted. The applicant agreed that he had been previously interviewed on 6 May 2002 and stated that everything he had told the police in the previous interview was true. The interview was suspended for a short period. When it recommenced, part of a video recording of the applicant’s meeting with “G” earlier that day was played back to him. He maintained that he had nothing to add to what he had said on 6 May 2002. A further portion of the video tape of the conversation between the applicant and “G” was played. It was then formally put to the applicant that he had murdered the deceased which he denied.

Other Evidence

Zheng-Macdonald recalled the police attending at 80 Carmichael Road and asking him whether there were any tools missing from the house. At that time Zheng-Macdonald advised that he did not think that there were any. When they returned at a later time they enquired as to whether he had a missing hammer. He recalled that he had not seen the black rubber handled hammer for a long time and checked through his tool boxes and the garage. He could not find it. Zheng-Macdonald usually kept the hammer on a shelf in his office, which was accessible from the kitchen of the house and was not locked. Zheng-Macdonald stated that it was an old hammer, in “average condition” and not particularly rusty.

James O’Neill, the uncle of the applicant, the son of the deceased’s brother, Paul O’Neill, and half brother to Debra Marks, stated that he first learnt that the weapon used to kill the deceased was a hammer after the applicant had been arrested and charged. He recalled a telephone conversation with his half sister, Marks. The discussion they had did not include any mention or reference to the alleged weapon being a hammer. He stated that he found this out from his wife who had been present at his parent’s home when the Informant visited them after the applicant’s arrest[31].
[31]A copy of the Police Media Releases issued on 17 April, 18 April, 27 November and 2 December 2002 were tendered as Exhibit “R”.

Course Adopted by Defence at Trial

The applicant gave evidence and called four witnesses, namely Debra Marks, Toby Marks, Samantha Marks and a psychologist, Jeffrey Cummins.

The Applicant’s Evidence
Evidence- in-Chief

The applicant stated that he was aged 28, having been born in September 1976. He said that he considered the deceased to be his aunt, although she was not a blood relative.

He outlined his early years which he indicated were difficult, and a prior criminal history that involved offences of dishonesty but none for violence.

The applicant denied killing the deceased. When counsel asked him why he confessed to “G” that he had done so, he said that his life had been made a misery by the Homicide Squad detectives, including Buick. His small circle of friends and acquaintances had been contacted by the police and told that he was a suspect for murder. As a result, most of those people deserted him.

The applicant said he was advised of the deceased’s death by his mother, after which he discussed the circumstances with other members of his family. During the period between 17 April and 1 May, he was following the news of the investigation in the newspapers and had conversations with family members. The applicant referred to the arrangements that were made for him to attend the Oakleigh Police Station on the morning of 6 May where he was met by Homicide Squad officers who then took approximately 12 minutes to drive from the police station to Carmichael Road. It would ordinarily take about 5 minutes for this journey, he said. En route the officers were enquiring about any money that he may have borrowed from the deceased and they stopped the car a couple of times. They indicated they had a search warrant and he had said, "Fair enough, let's get it over and done with." He stated that there were occasions when he was in the car that he felt somewhat intimidated by them.

On arrival at Carmichael Road he was met by other police officers, including Buick. This was the first time that he had met him. During the search of the premises, various items, including his computer and CDs, were taken from his bedroom. He was then taken to the Homicide Squad offices at the St Kilda Road Police Complex. Thereafter he was formally interviewed but was not charged. He was told that the police would make further inquiries and that he would be contacted in the not too distant future.

The applicant stated that, when he was escorted from the Homicide Squad offices to the front door by Buick and another policeman whose name he did not recall, the other detective said to him, "Look, we know you did it, why don't you come back in and do this interview the proper way, where you admit to killing Margaret." He said he had responded, "I didn't kill Margaret." He was then told, "Don't worry, we know where you live and we'll be in contact soon." The applicant said that it made him feel quite upset that they thought he was the one who committed the murder and it made him quite anxious.

The applicant agreed that from time to time he would ring Buick to inquire about the return of his computer. Buick would then contact him. On 15 May, Buick rang him at home at around midnight. He said the computer and CDs would probably be returned within two weeks and he wanted to know which was the more important and which he wanted back first, the computer or the CDs. As it transpired, neither were returned within the time indicated. At the time of this call the applicant said he was asleep in bed and he was quite annoyed about the incident.

Reference was made to some other police members calling on Zheng-Macdonald, on 18 June 2002, and taking a statement from him. That evening Zheng-Macdonald conveyed to the applicant that the police had made statements to the effect of "We wouldn't live with a cold-blooded murderer. Why do you still have him as a tenant at your house? How can you sleep at night knowing you have a cold-blooded murderer living with you?" The applicant stated that he felt distressed by what had been said and thought he could have lost Zheng-McDonald in consequence. It disturbed him that the police were still persisting with the assertion that he was responsible for his aunt’s death.

The applicant agreed that he had significant debts at that time in addition to approximately $25,000 that he owed to the deceased.

The applicant was then taken by his counsel to his initial contacts with “R”, and confirmed that he was told about an apartment, taken to look at it, and handed the keys. He said that no one had ever given him access to a fully furnished rent free apartment before. In return, all he was expected to do was to collect “R’s” mail and let him know that it had arrived.

Soon, however, it became abundantly clear that “R” was part of a gang engaged in criminal activities.

In the eight days following 22 October, he met with “R” on four occasions to do “jobs” of one type or another. By 30 October he had completed money collections and gone to the St Kilda Road Police Complex where he saw “H”[32]. On the first occasion, he initially refused the $100 payment for his services, but was convinced by “R” to take it. By that time he understood “R” to be a member of a larger crime gang. In one telephone conversation with Vlek and prior to meeting “R”, the applicant told him that he was feeling suicidal. He was depressed because his friends and relatives had turned against him, and he thought that life was not worth living. After he met “R”, those thoughts disappeared.
[32]“H” was an undercover operative posing as a corrupt police officer in league with “the gang”.

Over the five weeks of the scenarios, the applicant said that he believed that he had developed quite a strong friendship with “R”, whom he regarded as quite an amazing person with a nice car, nice clothes, and an apartment he was prepared to offer rent-free. He appeared to enjoy a good lifestyle and the applicant aspired to be like him.

He described him to “G” at Crown Towers as being “like a mentor”. By that expression the applicant indicated he meant someone who taught him the "ins and outs" of the criminal activity in which they were engaged.

He said that he wanted to feel accepted by this powerful group of people. He agreed he had been told by “R” that he did not have to participate in any of the activities in the scenarios and that he understood that he could walk away if he wished to. However he feared that if he refused to assist he would be rejected, first by “R”, and secondly, by the other crew members.

The applicant acknowledged that he was told on a number of occasions that the crime gang had a creed of trust, honesty and loyalty. He understood that the members were loyal to each other and shared those core values. He believed that, if he was engaged as a member of the gang, the money that he would earn would be much larger than the $100 he was receiving each time he assisted “R” and the other members.

On 27 November he did not know, until he got into the car with “R”, that he was going to be taken to see “G”, who wanted to resolve some problems that had emerged. He understood that the issues were associated with the check being conducted into his background, because the Homicide Squad saw him as a suspect and there was concern that he would bring undue attention to the gang if he were to join them.

The applicant agreed he told “G” that he was keen to become a member and that he had previously expressed that desire to “R”. “G” had said he wanted to “bring him on board” because he thought he held some value for the group and reference was made to his computer knowledge. Earlier, “R” had praised him, and when praised by any member of the gang, he felt that his efforts were regarded highly and that he was worthy of becoming one of them.

The applicant stated that “G” said to him "Look, you've got to tell me everything. You've got to tell me the duck's guts because if you don't, you're going to go down for this unless we fix it". The applicant said he understood “G” to be saying that it was “G’s” belief that he had killed the deceased and that, if he said anything otherwise it would be a lie. He thought that, if he did not accept that he was responsible, he would no longer be seen as eligible to become a member of the crime gang. Further, because the room in which he spoke to “G” was reached via a lift and a swipe card, he felt he was being confined or detained, and under pressure to tell “G” what he wanted to hear. At one point in the interview he described how he wiped down the things in the deceased's unit and said "Just like you do when you're doing jobs". He was trying to show “G” that he, too, could be a careful person. He told “G” that he had killed the deceased, but that was not the truth.

Cross-examination

The applicant agreed that, in the period leading to the death of the deceased, he had a number of significant and long standing debts. He thought that he had four or five credit cards on which money was owing. He also had experienced a gambling problem for some five years and towards the latter part of 2001/2002 he was losing significant amounts at the Casino. At the same time his credit card debts were increasing because of the interest attracted by non-payment. Financial institutions were pursuing him for money and had contacted him by telephone and in writing. They had been requesting him to endeavour to come to arrangements whereby he could pay off his debts. He agreed he did not do so.

The applicant stated that he thought about becoming bankrupt but not, at any stage, about paying the money owing. He agreed he had an ability to pay some of his debts from his earnings of $500 to $600 a week, but did not see fit to do so. In fact, he agreed, he moved residences in order to evade the debts. When he moved from Glen Iris, he did not give any of his creditors his new residential address. He did that with the specific thought in mind that they would not be able to find him.

The applicant agreed that, at the same time, he had already borrowed $28,000 from the deceased with the claimed intent to pay off the debts. He agreed he did not use the money for the purpose and gambled approximately $25,000 that he received. He went to the Casino within days after the money was deposited into his account. He denied lying to his aunt and said that after he received the money he thought that he could do better by doubling it and thereby paying both debts. He lost the money, but did not ever tell her.

He agreed that he thought he was a beneficiary under the will of the deceased, but denied that was the reason he wanted to maintain a close relationship with her. He accepted that he told Vlek that he wanted to stay in her good books for that reason, but said this was said as a joke. It was put to the applicant that, on 24 December 2000, he said in a conversation on an internet chat line "I couldn't disappoint my aunt now, she's my goldmine." He said that he did not believe that he meant anything serious by it.

The applicant also agreed that the borrowing of the $28,000 was not the only time he had borrowed money from the deceased, as he had borrowed $3,000 from her in order to repossess his car on one occasion. He said that there was also the occasion of the $4,000 cheque.

The applicant said that he had spoken to his mother on a number of occasions about the deceased’s death. It was she who had informed him that his aunt had been killed. He denied that he lied about a conversation with his mother in which she told him that a hammer was used to kill the deceased.

The applicant was taken by the prosecutor to a monitored conversation between his mother and himself on 18 May in which she recounted what Buick had told her. It was put that this conversation occurred at a time after the applicant's mother had heard from James O'Neill, and that his mother said that the police were not telling them anything. The applicant responded that, if that was in the transcript of the conversation, he agreed. Similarly he was referred to a passage where his mother was relaying to him Buick’s statement to the effect that the police had not found a murder weapon and did not know what was used to kill the deceased. The applicant agreed that that was what she relayed to him. However, he said at some point that she did tell him that a hammer was used. He agreed that this statement of his mother did not appear in any of the transcripts of the telephone intercepts, but he offered the explanation that the statement might have been made on an occasion when he called her from work or met with her in person.

He was then taken to a conversation with a friend, David Stephens, on 20 May, in which the applicant used the words "unidentified object" with respect to the murder weapon. He did not dispute the conversation occurred and agreed that the newspapers did not mention any specific weapon.

The applicant was then taken to a conversation on 29 May in the course of which his mother had said to him, "They're keeping it up close to their chest and they tell you nothing." The applicant again said that, if that passage was recorded in the transcript, he did not dispute it. In that same conversation his mother quoted Buick as saying, "They'll never find the murder weapon" and later, "They'll never find it, and they already told me that, and they have not got it. They don't know what it was that was used." Again the applicant said that if that appeared in the transcript, he did not dispute it.

He agreed that in the recorded conversations, his mother at no stage said that a hammer was used, but he reiterated that he did recall having a conversation with her in which she mentioned a hammer. As to where and when that conversation occurred, he said that he did not know, nor did he know from where she indicated she had acquired this information. When further questioned as to when that conversation may have occurred, he stated that he believed it was May, having heard the evidence of James O'Neill, but then he agreed that O'Neill had denied that he ever told his mother about a hammer.

The applicant accepted that at the time he met “R”, he did not have a gambling problem, and in the period of the four or five weeks he was acquainted with “R”, he had only been to the Casino about once or twice. He agreed that when he first met “R” he got on well with him and he was someone he liked from the beginning. From the time of the first scenario, he participated willingly in the purported criminal activity. His reasons for doing so were the desire for the money, the excitement associated with participation and his friendship with “R”. At no stage did he ever suggest to “R” that he had any hesitation about what was being done.

It became clear the criminal gang was based on trust, honestly and loyalty between each of the gang members and the crime boss, “G”. He was aware that there was a hierarchy in the gang and that “R” occupied a lowly position. In the days leading to 27 November, his state of mind was that he wanted to be part of the group and he was well aware that this could not occur unless background checks were conducted and accepted as satisfactory. The problem of the check was of concern to him. He agreed he became quiet and subdued on 27 November when “R” informed him that the check had not been completed. The fact that the police had visited his place of employment also concerned him. He was certainly troubled that the Homicide Squad may have had something implicating him. The applicant said he did not believe that he had any choice when he was picked up by “R” on 27 November and told that he was going to see “G”. However, he agreed that he wanted the situation attended to and the check accepted as satisfactory.

He believed that whatever was wrong with the check could be fixed by “G”. He trusted “G” and “R”. “R” in particular had told him a number of times that things could be fixed if he told the truth. He was aware that there could be adverse consequences if he lied to “G” but said his view was that they would only follow if it was learned that he had not been truthful.

The applicant agreed that, when he was talking to “G”, he was cautious and asked him if he was “wired”. The reason that he made this enquiry, he said, was that, if the matter came before a court it would be apparent that what he was about to say could not be taken as reliable. The applicant denied that he had told the truth in that conversation. The information and details that he provided had been gleaned from the newspapers, from relatives, and from his police interview on 6 May 2002. He made up other details to add credibility to his version. He believed that “G” would be able to check them and verify that they were true.

He told “G” that the hammer which he said was used to kill the deceased belonged to his housemate, but denied that that was the truth. It was not true that he hit deceased a number of times with a hammer and ransacked the bedroom after he had killed her. Nor did he take jewellery from her. The applicant agreed that in the record of interview on 6 May he told police he could not remember his movements on the Sunday, and that was still the situation, even though he had told “G” that he visited the deceased during that day.

He told “G” that the killing happened at approximately 8.30 p.m. and the movie, "Star Wars", was starting. The applicant said that he had seen that movie on the Sunday, but not at the deceased’s home. He said that just happened to be a piece of detail he had given “G” that was true.

He agreed he told “G” that he had put the plates that he had used in a plastic bag. He had heard the police evidence that there was nothing found in the kitchen bin other than a crumpled letter, but denied that he went through the kitchen bin. He said that he spoke to the deceased about that letter when he saw it on the Friday, but did not know when she would have put it in the bin.

The applicant agreed that he told “G” that he wrote a cheque for $4,000 and signed it. However he denied that he forged his aunt’s signature or that he had the deceased's driver's licence for about a week.

He said that “G” had made it clear that he believed that he was guilty and he responded by telling “G” what he wanted to hear. The applicant gave him as much truthful detail as he could, so that when checked with the corrupt police member his version would appear to be reliable.

The applicant agreed that towards the end of his conversation with “G” he shook his hand but denied that he was relaxed. He agreed that he had asked “G”, who he believed could bring the homicide investigation to an end, whether he could help with his problem.

The applicant denied recovering the scissors and the receipt from the flat because he believed that they could incriminate him. He said that “G” had asked him to get them and he agreed in order that they could be disposed of.

The applicant agreed that in the interval after his first conversation with “G” he told “R” that he had lied to him in saying that he had not killed the deceased. The applicant said he just told “G” he had committed the crime and he told “R”, who was curious, the same thing.

The applicant agreed that on the way to St Kilda he was laughing and excited but it was not because he believed that “G” was going to help him get rid of some evidence. The applicant said he was actually quite anxious that “G” might find out that he had just lied.

The applicant agreed that he had told “R” that he had clubbed the deceased over the head whilst she was laughing, but he denied that that was the truth. The applicant said that he perceived three advantages in giving “G” the impression that he committed the crime. First, he could shed himself of the homicide investigation; second, he was going to get $12,000 from the security box; and third, he would be accepted into the crew and ultimately receive a larger share of their profits. The applicant said he feared losing the friendship of “R” and not being accepted by the group. When he was introduced to guns and the “bikie” scenario he experienced fear as he had never seen real guns before and he felt, from that point that he had no way of separating himself from the organisation.

Evidence of Other Witnesses

The applicant’s mother, Debra Marks, stated that on the night of Friday 5 April 2002, the applicant came to her house for dinner with his brother Toby and his sister Samantha, after which they all went to Tullamarine Airport where Samantha and Toby caught a flight to Thailand. The applicant and Mrs Marks returned to her house to collect a desk. They then drove to his room in Oakleigh. She returned to her home in the early hours of Saturday 6 April. She stated that on that night the applicant was happy, “his usual self”.

On 17 April 2002, Mrs Marks received a telephone call from her mother advising her of the deceased’s death. She contacted the applicant and informed him of what she had been told. He was upset. Over the subsequent weeks, she was spoken to on a number of occasions by Detective Senior Constable Buick and made a statement on 8 May 2002 wherein she related the applicant’s movements on 5 April 2002 and his reaction when she notified him of what had happened to his aunt.

Marks stated that on her birthday, 7 May 2002, Detectives Buick and Seel came to her home. They told her that they knew that the applicant was responsible for the murder and that she had to prepare her other children for the events that would follow. She told them of the applicant’s history of earlier trouble with the police and his conviction. On that occasion, Buick told Mrs Marks that her son was homosexual. She had not previously known this.

Arrangements were made for her to attend at the St Kilda Road Police Complex on the following day to make a statement. When she did so, Buick again said that the police knew that the applicant was guilty and that she had to prepare her other two children for what would happen. After making her statement, she met with the applicant and they went out for a drink. She told him that she had made a formal statement and he advised her of what had been happening to him. He was upset that the police were saying that they knew that he had killed his aunt. He denied that he was responsible and said that he was the only suspect because he was the last known relative to see her.

On Thursday 16 May 2002 Mrs Marks received a telephone call from her brother, James O’Neill, who told her that Buick had said to him, “Imagine an elderly woman having her head smashed in by a hammer”. When the telephone call was finished, Mrs Marks felt shocked and told her other son, Toby, about it. Mrs Marks mentioned this call to Samantha on the day that they celebrated Samantha’s birthday, and she would have informed the applicant of what was said at a time between 16 May 2002 and Samantha’s birthday on 26 May 2002.

Toby made a police statement on 27 May 2002 relating his own whereabouts at the time of the deceased’s death. He stated that after he made the statement, Buick asked him whether he would inform the police if he knew who was responsible. He replied that he would. Buick then asked him whether, if he knew that his brother was the perpetrator, he would still come to the police. Toby said that he would do so straight away.

The applicant’s sister, Samantha Marks, gave evidence that her birthday was on 26 May 2002. In mid May 2002, her mother telephoned her and told that she had had a telephone call from her brother, James O’Neill. Her mother said that James O’Neill had made the comment that the deceased’s injuries had been caused by a hammer.

Cummins, a forensic psychologist, conducted a clinical and forensic assessment of the applicant. This involved two interviews, on 22 August 2004 and 3 September 2004 respectively. Between those interviews, he observed the applicant in court during a preliminary hearing[33]. Cummins examined the transcripts of the scenarios, including what occurred on 27 November 2002 as well as hearing and viewing the audio and video recordings of 27 November 2002. Cummins also had access to a July 2000 report concerning the applicant which was prepared by Ian Joblin, a forensic psychologist.
[33]The voir dire was held between 25 August and 10 September 2004.

At his first interview on 22 August 2002, Cummins assessed the applicant as a very lonely person who felt abandoned and who had very low self-esteem. He concluded that the applicant was gambling at Crown Casino as a method of creating a feeling that he had friends. His history was consistent with the presence of a pathological gambling disorder. The witness made a provisional diagnosis of the presence of elements of borderline personality disorder and elements of inadequate personality or dependent personality disorder. These conclusions, he considered, were supported by information in Joblin’s earlier report and reinforced when he interviewed the applicant again on 3 September 2004.

Cummins outlined the elements and effects of the disorders he had diagnosed. One possible effect, he said, is a feeling of abandonment, which could be real or imagined, but certainly would have felt real. In consequence the applicant may well have idealised the relationship between the covert operative, “R”, and himself. In Cummins’ view, his ready acceptance of the St Kilda apartment, after only his second meeting with “R”, was the sort of impulsive or reckless behaviour in which a person suffering from these disorders was likely to engage. The applicant, he considered, suffered from an identity disturbance, and his self damaging impulsivity was manifested in his gambling disorder and in his sexual activities. Cummins did not ascribe any significance to the applicant’s substance abuse, his suicidal thoughts or his recurrent suicidal behaviour.

The Case for the Prosecution

The prosecutor submitted that the applicant’s confession should be accepted by the jury as truthful and there were other pieces of circumstantial evidence which linked him with the death of the deceased.

First, he argued that the applicant had a motive to kill his aunt. He had significant debts to various financial institutions which he was not prepared to pay. He had changed his residence in order to avoid his obligations. A default judgment was entered against the applicant on 5 April 2002 in the sum of $7,219.90. This was close in time to the killing. The applicant also owed approximately $28,000 to his aunt.

Under the arrangement that he had made with her, he was to make weekly payments of $100 to $200. However, in his confession to “G” he indicated that he killed her in order to avoid having to do so.

The death of his aunt also promised the benefit that he believed he would obtain under the will of a person to whom he referred as his “gold mine”. According to Vlek, there were many conversations about this prospect, which included mention of the applicant’s belief that he was the sole inheritor and that it was wise for him to remain in the deceased’s favour.

The prosecutor drew attention to the cheque dated 5 April 2002. In the applicant’s 6 May interview, he told the police that the last time he had seen his aunt was on 5 April. At that time, the applicant owed her approximately $31,000. He nevertheless asked to borrow more money from her and filled out a cheque which, he claimed, she signed in his presence. On the basis of the evidence of the handwriting expert, that was a lie as the signature was a simulation or forgery in his definite opinion. That opinion, the prosecutor pointed out, was not challenged in cross-examination. The prosecutor contended that the applicant lied about this matter because he appreciated that it incriminated him in the murder.

The next piece of circumstantial evidence, the prosecutor submitted, was to be found in the telephone records. The applicant claimed that the last time he contacted his aunt by phone was on the Friday before her death. In his evidence, he stated that he made calls from a telephone box outside a Milk Bar in Huntingdale Road, near the Princes Highway. The phone records for that particular box showed a call at 5.19 p.m. on 6 April 2002 to the deceased’s phone, of approximately 25 minutes’ duration. The prosecutor submitted that the jury should be satisfied that the applicant was the caller. It was significant, she argued, that two days later, on 8 April 2002, a call from that same public phone box was made to the applicant’s father in Tungamah. Again, it was argued, the applicant lied to the police about making the Sunday afternoon call because of his awareness of its significance in the circumstances. The evidence about these phone calls, it was pointed out, was also significant in that it was what the applicant told “G” on 27 November.

With respect to the time of death of the deceased, the prosecutor put to the jury that there was an abundance of evidence that the deceased died on 7 April. One indication of the truth of this proposition was that no telephone calls were answered by her after that date. Another indication was her failure to collect her mail in the following week. The evidence from the official from Australia Post was that letters processed on 5 April would have been delivered on 8 April. There was also evidence of advertising material being delivered over the weekend of 6 and 7 April. More graphically, it was argued, the photographs of the 7 April TV guide showed markings that indicated that the deceased was alive at some time on the Sunday. Of significance on the TV guide was the entry relating to the movie, “Star Wars”, scheduled for 8.30 p.m. on Channel 9. When confessing to the killing to “G”, the applicant said that he killed his aunt at about 8.30 p.m. and that Star Wars was on. Further, when the police came to the house the TV was playing on Channel 9. By contrast, the applicant told the police, in both the 6 May and 27 November interviews, that he could not remember his movements on Sunday 7 April.

The prosecutor submitted that there could be no argument that the deceased was murdered, and that it was clear that the perpetrator was someone she knew. There was no sign of any forced entry and, according to Dr Heyes, she was killed in her chair. It was submitted that Dr Heyes’ evidence concerning her observations of cast off bloodstains from an implement, was consistent with the applicant wielding a hammer in an arching motion. Dr Heyes was unable to say whether there would have been blood on the assailant's clothes, but the prosecutor submitted that the applicant told “G” that he had cut up his clothes and that this suggested there may have been blood on them.

It was clear, she continued, that the police suspected that the applicant was the killer when they interviewed him on 6 May. This led to the application for assistance from the covert unit. The operation subsequently mounted was undertaken by trained operators and was undoubtedly sophisticated. However, given the gruesome nature of this crime, what was done by the covert operatives could not be reasonably perceived as unfair.

The prosecutor submitted that the applicant, rather than being vulnerable and fragile, was intelligent, deceitful and cunning. With respect to the argument that the applicant was a “loner” who wanted to keep “R’s” friendship, she argued that it was not realistic to think that, in order to keep that friendship, he would confess to the commission of such a terrible crime. The applicant, it was argued, was a willing and eager participant in the criminal activities of the gang from the beginning of his association with it. He viewed membership as providing access to easy money and he wanted the kind of better lifestyle he believed his new confederates could provide. It was made clear to him on many occasions that he was not expected or required to participate, but could do so if he was willing. There was no doubt, the prosecutor submitted, that he got on well with “R”, but he knew, and was told repeatedly, that he had to disclose anything that could bring “heat” on the gang. The applicant, it was submitted, was told that virtually any problem could be handled, and he believed there was a corrupt police officer who could “make things go away”. He had, in this situation, a powerful motivation to tell the truth. In relation to the evidence of Cummins, the prosecutor argued that whatever personality problem the applicant may have experienced, he knew he had to be honest when he spoke to “G”.

The prosecutor questioned how realistic it was for someone to confess in such a detailed manner to such a gruesome crime committed against a person close to him, and yet not be telling the truth. In this context, she referred to the video footage which, she submitted, depicted the applicant’s demeanour as relaxed but also cautious and intelligent when he queried if “G” was “wired”. There was, she further submitted, no time, in the course of his interview with “G”, for the applicant to invent an elaborate and detailed confession, and what he provided was a vivid description in which he demonstrated how he killed his aunt. It was submitted that only the killer would know exactly what type of murder weapon was employed. That information, the prosecutor submitted, was deliberately not released as Detective Senior Constable Buick indicated, and in any event, all the police knew after the autopsy was that the weapon was "something like a hammer". The fact that this information was not released to the media was confirmed by the newspaper cuttings and media releases tendered, and Paul O'Neill’s statement that the family did not know a hammer was used until after the applicant was charged.

The prosecutor submitted that Debra Marks lied to protect her son when she claimed that she was told by Paul O'Neill on 16 May that the weapon was a hammer. Mrs Marks also claimed that she conveyed this information to her son on the home phone. However, it was clear that her evidence was not true as the phone was monitored and not only was there no mention of a hammer in the 18 May phone call to the applicant, but what Mrs Marks said was quite inconsistent with the possession by her of that knowledge. Indeed she told the applicant that Buick did not know the nature of the weapon used. On 29 May there was another conversation in which Mrs Marks made a statement to similar effect.

The prosecutor submitted that the reference by the applicant to a hammer was significant in more than one respect. He told “G” that he obtained it from a tool box in Zheng-Macdonald's study. Significantly, it was after the applicant’s arrest that the police learned from Zheng-Macdonald that a hammer was missing.

Not only did the applicant know that it was a hammer that was used but he knew the deceased was struck with the flat end. This was consistent with the evidence of Professor Cordner. Although the applicant told “G” of six blows to the head, and six to the neck, a smaller number was given by Professor Cordner in evidence. The prosecutor argued that this was not surprising as the perpetrator of a frenzied attack might well not count the number of blows.

The defensive-type injuries to the hands were consistent with the deceased putting her hands to her head when being hit. Again, significantly, submitted the prosecutor, the applicant told “G” that when he hit the deceased on the head she raised her hands in this fashion.

The applicant told “G” that he pulled out the phone plug because of a missed phone call to his mobile on 7 April from his father. He did not take the call. This call from his father was confirmed by the telephone records as having occurred at 6.33 p.m. on 7 April.

The applicant also told “G” that he ransacked the bedroom to make it look like a burglary that had gone awry. The prosecutor pointed out that the bedroom was in fact ransacked and, as the applicant told “G”, the mattress was moved off the bed.

The prosecutor drew attention to a portion of the confession to “G” in which the applicant referred to the movie, "Star Wars". It was submitted that only the killer would know on what channel the television receiver was set in the deceased’s unit. The evidence was, the prosecutor submitted, that the deceased was covered with a doona. The applicant, it was submitted, referred to this item in various ways, including "blanket" and also spoke of covering the deceased's chest and legs. Since persons attending the scene had moved the doona, including Paul O'Neill, the applicant's account, argued the prosecutor, was not necessarily wrong.

As to how the applicant got home after the killing, he told “G” that he called a taxi from a public phone box. It was submitted that the time, destination and the name “Mark” found in the taxi records confirmed that the person who ordered the taxi was the applicant, albeit that he did not get into that particular cab.

In relation to his return to the premises, the applicant initially said that this occurred one week later on either the Saturday or Sunday. Then he was more precise, ultimately stating it was the day he hired the rental car. Significantly, the applicant still had the rental receipt which was dated 15 April. It was submitted that that was a further accurate account.

The applicant’s claim that when he returned to the unit "it stank like hell" was also consistent with the independent evidence of paramedics and police.

The applicant’s statement to “G” that he signed the cheque was consistent with the evidence of Black, as was his claim that he had the deceased's driver’s licence. The applicant told the truth to “G” about what he owed to his aunt and gambling it away at the Casino. He told “G” he believed he was in the will, which was, again, counsel submitted, the truth. The applicant also told the truth about being picked up to go the movies by his friend, Vlek. He also told “G” the truth that he was homosexual, that he liked Asian males, that he had a journal of dealings with the police. He was also being truthful to “G” when he told him where he secured the hammer.

Moreover, the applicant essentially repeated much of the detail of his description of what occurred to “R”. This included telling “R” that the deceased was laughing before he hit her over the head, and that he had no remorse. When talking to “R”, the applicant was laughing, relieved and excited. Back at the St Kilda flat the applicant became panicked when he could not locate the receipt for the rental car.

As powerful as the confession was, it was not the only piece of evidence, the prosecutor submitted in conclusion. There was also the existence of a motive, the forged cheque and the Saturday night phone call, which were additional powerful pieces of evidence linking the applicant with the death of his aunt. Accordingly, submitted the prosecutor, the appropriate verdict was one of guilty.

The Case for the Defence

Counsel submitted that the Crown case depended upon the interview between the applicant and operative “G”. The other matters to which reference was made by the prosecutor, including the cheque and the existence of a possible motive, were known to the police prior to 6 May 2002, and were clearly regarded as insufficient to justify the laying of a charge. The charge was only laid after the interview with “G”, which counsel described as an interrogation.

The applicant had been experiencing financial problems for a considerable period of time. With respect to the debt to the deceased, he was paying interest, and an agreement had been reached about the repayment of the principal. He was under no particular pressure, at the time, that could be seen to have provided some incentive to act in the fashion alleged against him.

There was nothing sinister in any of the references by the applicant in conversations with Vlek to his aunt's wealth. Rather they were made in a jovial tone, and Vlek thought the applicant was close to his aunt.

In relation to the cheque for $4,000, even if the jury did conclude that the applicant forged his aunt’s signature, it did not follow that he was responsible for her death. In any event the applicant maintained that the signature was genuine.

Insofar as the prosecution attempted to draw support from the telephone company records, the applicant told the police that he used a number of telephone boxes, including some in the city. The applicant at no stage said he only used the phone box referred to in those records. Even if the Crown argument was accepted that the applicant made the calls recorded, “so what?”, counsel asked rhetorically, since there was nothing sinister about them. That information was in the Crown’s possession prior to the covert operation being set in motion, and, of itself, was quite meaningless. It only could be regarded as sinister upon the assumption that the applicant was guilty, and could not assist in the determination of that question.

Counsel submitted that since the movie, "Star Wars", could be seen on any television set within the general viewing area on 7 April, it did not follow that the applicant must have seen it at the deceased’s unit on that night.

Counsel advanced a number of criticisms of the police investigation. These included the assertion that the police should have followed up as to whether gloves were sold in the Myer Department Store on 7 April; that there should have been a further investigation when two different sized circles were drawn by the applicant, in the context of assessing whether a hammer would fit either of those two circles. Even “G” did not think it was a normal hammer. She referred to the bundle of newspapers seen by a neighbour outside the deceased's premises, possibly on the Thursday before 14 April, and argued that that might have had some significance. Counsel queried whether inquiries were made concerning security film which might have shown the applicant at Carnegie station on 7 April. The Easter egg, which the applicant said he gave the deceased, was found in her bedroom. How likely was it, counsel queried, that the deceased would have put the gift in her bedroom after receiving it from the applicant?

Counsel then addressed the evidence of witnesses who, she submitted, were very important. She reminded the jury of what Paul O'Neill had told the police and his family about what he observed. This could reasonably have been expected to have been conveyed to the applicant who would therefore have been aware of a great deal of detail about the scene. This included the lack of any internal lighting, and the fact that there was a rug over the top of the deceased’s head. The witness also noticed that the television was on, there was a package on the floor and a crackling sound in one phone with its wall plug half out. He also described the missing rings. Counsel submitted that all of these matters would have been known to the family, save for the matter of the hammer.

Counsel reminded the jury of Dr Heyes’ evidence that she had performed tests which involved hitting bloody objects and as to the possibility of blood being splashed on the assailant's clothing. She then argued that if the applicant was giving “the ducks guts” to “G” he would have volunteered having blood on his clothing, rather than merely responding affirmatively to “G’s” question about this.

Counsel submitted that there was a big difference between the six blows the applicant claimed to have delivered, compared with the 15 to 20 blows that Professor Cordner suggested may have been struck to the head area. Professor Cordner stated, it was pointed out, that the neck injuries could have been caused by a kick or stomp, a foot or fist, although he did not exclude a hammer. He expressed the opinion that as many as 40 blows would have been struck altogether. That was vastly different from the 12 blows that the applicant said that he delivered.

Counsel argued with respect to the murder weapon that it was important to bear in mind that Professor Cordner never said more than that "something like a hammer" was possibly used. Cordner also said that it was notoriously difficult to fix a time of death, and did not do so.

Counsel submitted that the interview with “G” had to be viewed in its proper context. It was of critical importance to understand the applicant as a person both prior to, and during, the scenarios and to have regard to the effect of trickery and deception upon him. Counsel submitted that the applicant was a psychologically damaged individual who had elements of dependent personality and was socially isolated. No Crown expert was called to challenge the evidence of Cummins, who was an experienced psychologist and who had expressed the opinion that the applicant suffered from a condition known as borderline personality disorder.

She submitted it was also important to bear in mind the lengths to which the police were prepared to go in order to obtain a confession. “R” was personable, and he appeared to have an attractive lifestyle. He had a girlfriend and money to spend. It was not surprising, therefore, that the applicant was taken in by him particularly when he was offered a rent free flat, with free use of its amenities, from a person he had only met twice.

Counsel submitted that much of the detail in the confession was in the public domain and some was just plain wrong. It was put that the applicant got the date of Sunday 7 April from his interview with the Homicide Squad on 6 May. Similarly the applicant’s knowledge of the call from the public phone box on 6 April was also obtained from that interview.

It was submitted that “G” prompted the applicant into saying it was a claw hammer that he used. Further, given that it was in the public domain that what was used was a blunt instrument, it would not be hard for the applicant to guess that it was a hammer. Counsel argued that even if Debra Marks did not mention a hammer to the applicant it was an assumption that he could have made but, she submitted, the evidence of Mrs Marks should be accepted. Counsel also stated that James O'Neill thought so little of the applicant that he claimed in evidence to have told Buick that he thought that he was responsible for his aunt’s death. Counsel asserted that even if Debra Marks did not obtain the information from him, she had nevertheless told her son about the use of a hammer.

In relation to the evidence of Zheng-Macdonald, it was submitted that he said that the hammer was lying on a bookshelf in the study after he had last used it, about six months previously. It was not his evidence, submitted counsel, that it could have been in the tool box in the study area, as the applicant told “G”. Moreover, Zheng-Macdonald could not say precisely when he last used it. Further, counsel submitted, when asked to describe the hammer by “G”, the applicant described it as “a little one with airholes in the handle in a dark brown area”. The applicant also described it as “a rusted old thing”. By contrast Zheng-Macdonald described the hammer as being in average condition. It had not been left out in the weather, so there was no real rust on it. Counsel submitted that this was not the object described by the applicant to “G”.

Counsel submitted that there were times in the course of the conversation with “G” when the applicant could be seen to be struggling to come up with the details requested, and when he displayed uncertainty in his account. Counsel contended that the applicant wanted to be part of the crew and successful like “R”, but most of all he wanted the Homicide Squad to desist from harassing him, and he knew that only if he said what he understood “G” wanted to hear would he secure these objectives.

It was submitted by counsel that there were so many discrepancies in the interview with “G” that it provided an inadequate basis for a finding of guilt, beyond reasonable doubt, of murder.

The Grounds

The grounds upon which the application for leave to appeal is based raise very similar issues to those addressed in the matter of Tofilau[34]. The principles discussed in my judgment, in that case, are applicable and need not be set out again.
[34][2006] VSCA 40.

In substance, it was contended on behalf of the applicant that the trial judge erred in ruling that the covert operatives “R” and “G” were not persons in authority within the common law principles of exclusion of inculpatory statements where inducements have been held out by a person falling within this description.

The trial judge concluded[35] that the applicant

“ … was the subject of a number of inducements. These included the capacity of the crime boss to frustrate or terminate the homicide investigation, as well as the promise of gang membership and the financial rewards (immediate and future) that would accompany it. However, such inducements were not proffered by a person in authority. They were held out by a crime boss outside the authority of the law and envisaged the attempted, if not the successful, perversion of the course of justice through the utilisation of the corrupt police officer [L].[36]”

[35]R. v. Marks (2004) 150 A. Crim. R. 212 at 225.

[36]“L” was the undercover operative held out by the gang as a corrupt police officer capable of ensuring that the case of murder against the applicant would not be prosecuted.

He accepted as correct the analysis and view earlier adopted by Osborn, J. in his Ruling in Tofilau[37] which has now been approved by this Court. There is nothing in his Honour’s carefully expressed Ruling or in the conclusion at which he arrived that could give rise to the suggestion that he may have misunderstood or misapplied the correct principles.
[37](2003) 149 A. Crim. R. 446.

Concerning the issue of the basal voluntariness of the applicant’s statements, the trial judge referred to the relevant passages in the judgments of Dixon, J. in McDermott[38], Deane, J. in Cleland[39] and Brennan, J. in Collins[40]. There can be no doubt that his Honour, one of the most experienced trial judges in this country, was very familiar with the principles upon which he was required to act when addressing this question. He concluded that:

“In the instant case the overwhelming evidence is that the accused took part in the conversation with G willingly and with the agenda I have already detailed. (For example during this conversation he further expressed his keenness to become a gang member.) The accused was told by G on three occasions that he did not have to say anything about the homicide problem; he was told that he could walk away from the gang; and the need to be truthful and honest was reinforced.
The videotaped interview reveals a person who, if initially nervous, settled down quickly and, thereafter, confidently and relatively fluently, gave a detailed account of the events of 7 April 2002, and their aftermath.
At no time was the accused harangued by G. Nor was he interrogated by him in the accepted sense of that term, or subjected to duress, sustained pressure, intimidation, or persistent importunity. True it is that the accused was told he was the prime suspect for murder ('hot as a chop') and, unless something was done about it, he would 'go down for it'. But the accused's own belief expressed later in the conversation with G was that he knew that the police knew they had the right man. Indeed as early as the 6 May interview investigating police had not only put the allegation to him that he was the killer but had made it clear that they would be conducting further inquiries.
At all times during the videotaped episode the accused appears in control of himself even to the extent of querying the crime boss G as to whether their conversation was being tape recorded.”[41]

[38](1948) 76 C.L.R. 501 at 511.

[39](1982) 151 C.L.R. 1 at 18.

[40](1980) 31 A.L.R. 257 at 307.

[41]R. v. Marks (2004) 150 A. Crim. R. 212 at 223.

He then referred to evidence given on the voir dire by the consulting clinical and forensic psychologist, Cummins, that, in his opinion, the applicant was suffering from a borderline personality disorder as well as a dependent personality disorder and an adjustment disorder, in addition possibly to an anti-social personality disorder.

His Honour expressed substantial reservation about the value of these opinions based, as they were, substantially on the history given to the witness by the applicant and which itself contained untrue statements. He continued:

“Allowing for the sake of argument that the accused suffers from the disorders which Mr Cummins deposed to having diagnosed, I am quite unpersuaded that such factors rendered the confessional statements of the accused involuntary. My own view of the accused, based on 38 years of experience as a barrister and Judge was that he had considerable self-possession and was well able to cope with situations of stress. Indeed, the capacity of the accused to handle himself when questioned was exemplified in his confident performance when initially interviewed by Homicide police on 6 May, and again when reinterviewed on 27 November 2002, after his arrest. Evidence of his being compliant is not, in my view, discernible. Nor is it apparent in the various recorded conversations. It should also be noted that Marks had an above average IQ and had undertaken tertiary studies with at least partial success. He was also a person who, on his own admission, was secretive and only revealed to people what he wished them to know.
In short there is no evidence that the will of the accused was overborne and I am satisfied, on the totality of the evidence, that the Crown have discharged the onus of demonstrating this basal aspect of voluntariness. As the accused subsequently remarked to R, when essentially repeating his description of the killing, he felt better for having got it off his chest.”[42]

These findings and his Honour’s conclusion were open in the circumstances.

[42]R. v. Marks (2004) 150 A. Crim. R. 212 at 224.

With respect to the submission that the trial judge erred in not excluding the evidence in the exercise of discretion, again it is apparent that he approached this aspect with care.

First, accepting for the purposes of the exercise in which he was then engaged, that in exceptional cases a judge should exclude a confessional statement “upon affirmative satisfaction that the admissions were inherently unreliable”, his Honour expressed reservations, which I share, about the recognition of inherent unreliability as a separate basis for discretionary exclusion. I consider that the better view is that a trial judge is not entitled to exclude evidence simply on the ground that the judge perceives it to be inherently unreliable in the circumstances. As the courts have made clear on many occasions, whilst a concern about the potential unreliability of statements that cannot be seen to have been made in the exercise of a fair choice provides a major reason for the development of the principles with respect to voluntariness and the fairness discretion, the circumstances and extent of the trial judge’s involvement with the issue of reliability are quite confined. The reliability or otherwise of a voluntarily made and otherwise admissible self inculpatory statement is almost invariably for the jury to decide.

Of course, the possible unreliability of the inculpatory statement is a consideration of great significance in circumstances where its admission could be seen as possibly capable of compromising the fairness of the trial. What I think is required is that the judge apply the test laid down in the authorities concerning the unfairness discretion such as Swaffield[43] where it was said:

“The term ‘unfairness’ lacks precision; it involves an evaluation of circumstances. But one thing is clear:
‘[T]he question is not whether the police have acted fairly; the question is whether it would be unfair to the accused to use his statement against him… . Unfairness, in this sense, is concerned with the accused’s right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.’

Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted.”

[43](1998) 192 C.L.R. 159 at 189.

Be that as it may, the trial judge in the present case in any event rejected the contention that the confessional statements were inherently unreliable, setting out a detailed analysis which provides a clearly adequate foundation for his view.

Approaching more broadly, by reference to the unfairness and public policy discretions, the possible exclusion of the evidence, again his Ruling demonstrates that his Honour directed his attention to the relevant authorities and principles. I will not recite the passages in which this was done nor is it necessary to set out the factual considerations to which he had regard. In the final paragraph of his Ruling his Honour indicated his appreciation of the potential risks of injustice that may arise from the too ready acceptance of confessional statements secured through the employment of sophisticated manipulative techniques by investigatory police. He exercised his discretion against the background and in the context of that appreciation.

I am far from persuaded that he may have fallen into error in deciding that the proper exercise of discretion did not require the exclusion of the evidence on either of the bases asserted in this Court.

Finally, his Honour rejected the contention that the prejudicial impact of the evidence was such that its admission would compromise the fairness of the applicant’s trial. He formed the view which was open in the circumstances that:

“any specific prejudice which may be occasioned by the accused’s participation in the purported criminal activities can be ameliorated by appropriate jury directions.”[44]

No complaint has been advanced with respect to the adequacy of his instructions in relation to this or indeed any other matter.

[44]R. v. Marks (2004) 150 A. Crim. R. 212 at 231.

It follows from the above that, in my view, neither of the grounds of the application can succeed and that it should be refused.

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[2006] VSCA 42

21 April 2006