R v Pham

[2024] NSWSC 1687

Supreme Court

New South Wales

Medium Neutral Citation:

R v Pham [2024] NSWSC 1687

Hearing dates:

4 – 7 November 2024

Date of orders:

18 November 2024

Decision date:

18 November 2024

Jurisdiction:

Common Law

Before:

Rigg J

Decision:

(1) The recorded conversation, from the point where the accused said, “I’m not, I’m not gonna say anything, if they ask questions,” to the end, is excluded pursuant to ss 90 and 138 of the Evidence Act 1995 (NSW).

(2) Any evidence of the interactions of the accused with the UCOs during the period of time corresponding with the portion of the recorded conversation excluded by order one is excluded pursuant to ss 90 and 138 of the Evidence Act 1995 (NSW).

(3) The Notice of Motion dated 7 November 2024 is otherwise dismissed.

Catchwords:

CRIME – pre-trial hearing to determine evidentiary issues – admissibility of recordings captured under conditional surveillance device warrant – recording made prior to ERISP where accused refused to speak to police – question of mild intellectual disability

Legislation Cited:

Evidence Act 1995 (NSW)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW)

Surveillance Device Act 2007 (NSW)

Cases Cited:

Deacon v R [2019] NTCCA 21

Em v The Queen (2007) 232 CLR 67; [2007] HCA 46

Fitz-Gibbon v Wily (1998) 87 FCR 104

Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299; [2010] NSWCA 34

Higgins v The Queen [2007] NSWCCA 56

Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1

Mann v R [2023] NSWCCA 256

Pavitt v Regina [2007] NSWCCA 88

R v FE [2013] NSWSC 1692

R v Gallagher [2013] NSWSC 1102

R v Nelson [2004] NSWCCA 231

R v Swaffield (1998) 192 CLR 159; [1998] HCA 1

R v Tang [2010] VSC 578

R v Tarantino (No 6) [2019] NSWSC 1174

R v Ul-Haque [2007] NSWSC 1251; (2007) 177 A Crim R 348

Sidaros v The Queen (2020) 15 ACTLR 64

Tofilau vThe Queen (2007) 231 CLR 396; [2007] HCA 39

Category:

Procedural rulings

Parties:

Rex
Le Nghia Pham (Accused)

Representation:

Counsel:
C Taylor (Crown)
M Avenell SC (Accused)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Nyman Gibson Miralis (Accused)

File Number(s):

2023/130026

Publication restriction:

Statutory prohibition on the publication of the name of the child present at the scene and any material that might identify them. See s 15A Children (Criminal Proceedings) Act 1987 (NSW).

JUDGMENT

Introduction

1. The accused is charged with the murder, on 2 March 2023, of Taha Sabbagh. A jury is shortly to be empanelled. The deceased was shot outside the Elite Fight Force gym at Carlingford Road Sefton at about 6.30 am, in the presence of a child. Twice a week the deceased drove to the gym for scheduled boxing lessons. The innocuous nature of his attendance at the gym, in the context of this investigation, has led the Crown to suggest that there is a possibility that the deceased was not in fact the target of the shooting.

2. The accused is not alleged to have been the shooter. He is alleged to have been a participant in a joint criminal enterprise to murder the deceased, or a person matching the description of the deceased. It is alleged that he participated in the joint criminal enterprise by:

1. Positioning a silver Golf motor vehicle near the intersection of Magdella Street and Wentworth Avenue Birrong on 24 February 2023 (having also been the driver of this vehicle on 13 February 2023);

2. Conducting surveillance of the gym on the morning of 28 February 2023, parking his own vehicle in a position to view the gym carpark before the arrival of the deceased and a child on that day, and driving off about an hour after the deceased and the child left;

3. Conveying alleged co-offenders (there are currently no co-accused) in his sister’s BMW to Auburn, early on the morning of 2 March, where they collected a Mazda CX3 motor vehicle which they drove to Carlingford Road Sefton (arriving at the gym prior to the deceased), the accused driving in the BMW to Bankstown where he entered the underground carpark of a unit block at 5:39 am; and

4. Driving those responsible for the shooting away from the unit block at Bankstown in his sister’s BMW at 6.57 am.

3. The above allegations, as set out in the Crown Case Statement, are footnoted by reference to evidence such as phone records and CCTV footage said to support the movement of the accused. It would seem that the first, third and fourth propositions are also sought to be proved by admissions made to undercover police officers (UCOs) following the arrest of the accused on 23 April 2023.

4. The shooter is alleged to have alighted from the Mazda CX3 at the gym. The facts suggest that there was at least one other person in the Mazda CX3 with the shooter, as the car was moving whilst the shooting was occurring, and the shooter got into a rear door before it drove away. That car travelled within minutes to Magdella Street Birrong and was set alight. Immediately after this occurrence the silver Golf alleged to have been placed there by the accused on 24 February travelled away from Magdella Street Birrong to the unit block in Bankstown where the accused was waiting, entering the underground carpark at 6:54 am. The silver Golf was driven out of the Macaulay Avenue underground carpark close to midnight, soon after an unknown man wearing a mask, and putting latex gloves on his hands, walked towards the driveway. Two people were captured on CCTV footage pouring accelerant on the silver Golf in a cul-de-sac in Canterbury before it was set alight.

5. On 20 April 2023 the accused booked a flight to Ho Chi Minh City which was due to leave on 23 April. The Crown alleges this was done out of consciousness of guilt. The Crown also alleges that out of consciousness of guilt the accused disposed of a 9 mm calibre firearm (which was not the murder weapon, but the same calibre as the murder weapon) and destroyed the phone he had used to communicate with the co-accused, these two latter acts indicated during a covertly recorded conversation with UCOs after his arrest on 23 April 2023 (“the recorded conversation”). In the recorded conversation the accused also made other admissions, and it is the recorded conversation that is the subject of this pre-trial legal argument.

6. On 31 October 2024, the accused filed a Notice of Motion seeking a ruling that the recorded conversation be ruled inadmissible pursuant to s 84 of the Evidence Act 1995 (NSW), or excluded pursuant to ss 90, 137 or 138. An amended Notice of Motion expanded the application to include objection to any other evidence of the interactions of the accused and the UCOs.

7. On the hearing of the Notice of Motion the Crown tendered a folder of material and thumb drive of audio-visual material (Exhibit VDA), including the Crown Case Statement from which much of the above information has been obtained, and called oral evidence from a number of police officers and Dr Farrar, a forensic psychiatrist. Further documentary material was tendered by the accused (Exhibit VD1), and the forensic psychiatrist Dr Dayalan gave oral evidence. The reports of both psychiatrists were before the Court.

8. A transcript of the recording of the recorded conversation, proposed by the Crown for use as an aid to my consideration of the audio recording, was included in Exhibit VDA. The accused provided alternative suggestions as to this transcript which was included as a supplement to Exhibit VDA. I have utilised the supplementary transcript provided by the accused where there is one and have listened to the audio recording.

9. Although the Notice of Motion refers to s 137 of the Evidence Act, this was not argued before me. It was anticipated that the parties would endeavour to reach agreement as to those specific portions of the recorded conversation which should be excluded because of this provision (and then these points argued discretely if such agreement cannot be reached). It was not argued for the accused that the editing required to remove unfairly prejudicial aspects of the recorded conversation will produce a result which is itself unfair or unfairly prejudicial to the accused.

10. The witness statements of the UCOs contained in Exhibit VDA do not indicate any evidence as to the content of admissions made by the accused. My understanding is that it is not the Crown intention to adduce oral evidence from them as to admissions made by the accused. There is in evidence before me (Exhibit VD1, tabs 17-18) summaries prepared of the admissions made by the accused during the recorded conversation. This was placed before me by the accused for the purpose of advancing the legal argument on the pre-trial hearing. I do not understand the Crown to intend to adduce these documents nor any evidence of the admissions of the accused during the recorded conversation otherwise than by the tender of the recording. During the course of the oral evidence in the pre-trial hearing it became apparent that the UCOs may have relevant oral evidence to provide of the admissions made, and I raised this as an issue with the parties. I expect it is for that reason that the expansion of the objection outlined above was provided. Despite these occurrences, it remains my understanding that the Crown only endeavours to adduce evidence of the admissions made by the accused during the recorded conversation by the playing of that recording.

11. I will set out some aspects of the evidence relevant to the recorded conversation before outlining the parties’ submissions.

Pertinent police evidence

12. Evidence was given by the officer in charge of the investigation, Detective Sergeant Kieran Glenzendorf, Detective Senior Constable Kristie McGee, Plain Clothes Senior Constable Zachary Lalic, the two UCOs, their supervisor Detective Sergeant CIN 1625 and the custody manager on the date of arrest, Sergeant Paul Hextell. I will not set out their evidence in detail but have taken it all into account.

13. After forming suspicion of the involvement of the accused in the murder a listening device warrant was obtained, and further evidence was gathered. The idea was formed to undertake a covert operation at a point where police believed they had enough evidence to arrest and charge the accused. Detective Sergeant McGee’s request to the Undercover Branch for approval stated, on page 3:

“Investigators are planning to arrest Pham at the Sydney International Airport prior to him entering through to immigration. Pham will be charged with the murder of the victim.”

14. A plan was developed to place the accused in a cell upon arrest with one or two UCOs posing as others who had been arrested, to obtain admissions from him. It was intended to monitor and record the conversations generated this way by listening device and/or optical device. Detective Sergeant McGee requested Senior Constable Lalic to apply to the Supreme Court for a surveillance device warrant, pursuant to the Surveillance Device Act 2007 (NSW). Senior Constable Lalic who had prepared the affidavit for the previous listening device warrant, added in the proposed police strategy. The introduction was taken from his previous affidavit; however, he added new bullet points. The paragraph said:

“Police intend to implement a strategy to obtain evidence of the commission of the offences, the identity of potential co-offenders, and the location of the offenders. Police intend to:

…

Convey PHAM to the Surry Hills Police Station and placed [sic] into a holding cell alongside NSW Police Under Cover Operative UCO643 or NSW Police Force Under Cover Operative UCO655. ^[1]

…

The UCO who will be involved in this operation is trained in relation to the principles associated with ensuring that a suspect has free choice to speak to police or be silent (a suspect’s right to silence). In particular, they are trained so that in appropriate circumstances they can avoid conversation that actively elicits relevant information. The operative will ensure that, through their actions, there is no unfair derogation of the suspect’s right to silence.”

1. This should have been 665 and was amended at a later time.

15. Senior Constable Lalic gave evidence that his intention was for either or both UCOs to speak to Mr Pham, although that is not what was written. Senior Constable Lalic did not speak to the UCOs to understand their training and said he could not remember the basis of the information that led him to include the last bullet point.

16. In relation to the possible alternative means of obtaining the evidence or information by “Interviewing the suspect”, the affidavit said:

“Investigators have assessed that the suspect:

•   is unlikely to assist in the investigation

•   is likely to conceal evidence

•   may interfere with other witnesses

The offences under investigation are serious. Investigators will afford the suspect the opportunity to be interviewed when all viable and warranted covert options have been exhausted.”

17. Senior Constable Lalic said it was his assessment that Mr Pham was unlikely to assist in the investigation, based at least in part on Mr Pham not having come forward to police and not having provided any information in relation to the murder. Detective Sergeant Glenzendorf said his assessment was based on the fact that Mr Pham was charged with murder, rather than something to do with him personally.

18. The last sentence quoted above at [16] featured in Senior Constable Lalic’s earlier affidavit, which was to obtain surveillance devices to use prior to arrest, when Mr Pham did not know he was under investigation. Senior Constable Lalic said he wasn’t too sure exactly when Mr Pham was to be offered an interview.

19. On 21 April 2023 Sweeney J issued a surveillance device warrant pursuant to the Surveillance Devices Act. The warrant was to be in force until 5pm on 11 May 2023 and authorised the use of listening and/or optical surveillance devices:

“(i)   On or in any room or cell occupied by the accused at the Surry Hills Police Station (the Station);

(ii)   On or about the body of UCO 643 and UCO 665.”

20. Sweeney J specified “the following conditions subject to which premises or a vehicle may be entered, or a surveillance device used under this warrant”:

“In the event Le Nghia Andy Pham decides not to speak to police, police officers are not engage in any conduct directed to eliciting admissions or infringing his right to silence.”

21. All police officers who gave evidence were aware of the condition on the warrant. Detective Sergeant Glenzendorf stated he understood the UCOs to be trained to not utilise direct conversation to explicitly adduce admissions if the accused expressed the view that he did not wish to speak to police. He stated that he understood the condition on the warrant to be along the lines of this training. Detective Sergeant McGee gave evidence of her prior experience of special conditions being placed on warrants in operations of this type, directed to the right to silence. Her understanding was that if the accused exercised his right to silence the operation would not proceed, or would come to a halt. Her understanding of the condition placed on the warrant in this case was that if the accused decided that he did not want to speak to police, the UCOs were to no longer engage with the accused or ask any questions.

22. UCO 665 gave evidence that his understanding was that the Surveillance Devices Act prohibits questioning, including clarifying questioning, relating to the situation an accused is in custody for if he has exercised his right to silence. Questions about unrelated matters (how his work or family is going, for instance) could be asked. UCO 643 stated that at the pre-operation briefing the special condition was discussed, and it meant “That we couldn’t engage in conduct that would get admissions and/or infringe on his right to silence if he expressed that he didn’t want to talk to police any more.” Their supervisor, CIN 1625, was aware of the condition at the time of the operation, and understood that:

“…the conditions were placed that should the person exercise their right of silence, that no police, including the undercover operatives, are not to engage or elicit – not to engage or elicit any information portraying to that, so taking away the exercise of silence.”

23. On 23 April 2023 the accused was arrested for murder at about 3:20 pm at the departure area of Sydney International Airport, by Detective Sergeants Glenzendorf and McGee. He initially said, “I didn’t do anything.” Detective Sergeant Glenzendorf said “You are not obliged to say or do anything as anything you say or do will be recorded and may later be used as evidence in court. Do you understand that?” The accused agreed.

24. The accused was transported to the Surry Hills police station. Detective Sergeant McGee completed the field Custody Management Record, and he was transferred to the Custody Manager, Sergeant Paul Hextell.

25. At 4:39pm Sergeant Hextell took over custody of Mr Pham. This was when his role with Mr Pham started. Sergeant Hextell reviewed the information provided in the check sheets and entered the assessments into the Custody Management Record.

26. In the section for recording brief assessment, Sergeant Hextell entered “Not affected” for Mr Pham’s intoxication level, with the note “States he has a hang-over from drinking yesterday but feels fine and is not intoxicated.”

27. For the vulnerability assessment, Sergeant Hextell entered “No” in answer to the question “Does the person have impaired intellectual functioning?” Sergeant Hextell made this assessment without any conversation with Mr Pham, based upon the check sheets provided to him. The process to this point would have taken about 10 minutes, so to about 4:49pm.

28. Although he could not say specifically for Mr Pham, Sergeant Hextell said that he usually gives a general introduction as to his role as custody manager, including offering food and water and asking whether the person would like to call anyone.

29. The accused’s Part 9 (Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”)) rights were read to him (by way of the ‘Form 31’). The accused signed the form (and in the later ERISP acknowledged he signed the form and that he understood his rights.) That Form 31 included the statement “While in police custody, you do not have to say or do anything, but anything you say or do may be used in evidence. Do you understand that?” The form is marked in Sergeant Hextell’s handwriting as a response: “yep.”

30. Sergeant Hextell said he read the Part 9 summary verbatim to the accused. He said that as he read each paragraph, he asked if Mr Pham understood, he said he did, and he ticked beside the paragraph. Sergeant Hextell did not ask additional questions of Mr Pham to confirm he understood.

31. The document contains 17 paragraphs, in two columns, with very small font. These include:

“[3] While in police custody, you do not have to say or do anything, but anything you say or do may be used in evidence. Do you understand? Yep.”

The form includes paragraphs, at [6]-[7], statement that the custody manager would help the person speak to a lawyer, friend or relative.

32. It also states:

“[13] If you are under 18, an Aboriginal or Torres Strait Islander, someone with a disability (whether physical, intellectual or some other disability), or someone from a non-English speaking background, you have other rights and there are other things I will do to help you while you are here. If you are such a person you should tell me and I will tell you more about those rights and what I will do to help you.”

33. When he came to this item, Sergeant Hextell did not engage in any conversation with the accused about his education, his work or his functioning.

34. Apart from reading the information provided by the other police for the vulnerability assessment, engaging with the accused for the Part 9 process was the only form of assessment he undertook of the accused’s intellectual functioning. Sergeant Hextell did not have any other conversation with Mr Pham which he used to assess his intellectual level. He did not see any need to change the entry about intellectual functioning in the Custody Management Record.

33. Although it seems the signed copy is no longer available, the evidence indicates that the accused did sign it. Immediately above the space for his signature is stated “I understand the information that I have been given”. Reading the document, getting Mr Pham to sign it and giving him a copy was the extent of Sergeant Hextell’s efforts to ensure he understood. Sergeant Hextell did not do anything else to assist Mr Pham to exercise his rights.

34. Although Sergeant Hextell said he did not remember how fast he read the form to Mr Pham, he spoke very quickly and somewhat unclearly when giving evidence.

35. The accused was placed in cell 2 a few minutes before 5 pm. In accordance with the warrant a listening device recorded the conversation between the accused, UCO 643 and UCO 665 in a cell at the station. There were no optical devices used. The UCOs were sometimes in the cell at the same time, and at other times just one of them was in there. They posed as fellow detainees who knew each other and had a developed story of their background in crime, evasion of police, and plans to deal with the matters for which they had been “arrested”. Except for the period after the accused was taken out to be formally offered the opportunity to be interviewed (which he declined), the officers were generally actively engaged in asking questions of the accused and making comments to prompt his response. They very clearly steered the conversation in a way to encourage the accused to make admissions.

36. During the course of the conversations in the cells the accused made a number of admissions. I will divide his representations into chronological sections, as there are some differences in relation to the various tests of admissibility depending upon the time at which the admission was made. The purpose of the following summary is predominantly to record the admissions made by the accused, rather than the nature of the questions asked or comments made by the UCOs.

The course of events after the accused was placed in cell 2

First period: 4:56 to about 5:12 pm; conversation with UCO 665

39. The accused revealed at an early stage that he had been arrested for murder. Before the accused made any admissions, UCO 665 asked him if he was going to be sweet, and he replied “I don’t know bro. I just don’t know bro... if anything, I, I just, I just ask, ask for a lawyer.”

40. The accused said he believed police were suspicious he was involved because he was “…in a car, car that day ‘cause, uh, … say I was I was waiting for mate to give me some stuff…”, but he kept “lagging”, because he has an addiction to cocaine. He said that he thinks because of that the police caught his car at the place and are suspicious.

41. He said he “screwed up” because he forgot to delete messages. He was worried because he messaged the boys and knows who did it. He said he “didn’t do shit.”

42. About 16 minutes into the recording at page 13 of the transcript he stated “Yeah, I’ll see if they, if they ask questions and I’ll tell them I don’t know shit, what the fuck are you arresting me for? And honestly, I fucking don’t know anything bro.”

Second period: 5:12 to about 5:39 pm; conversation with UCO 665

43. When asked “Did they get rid of stuff?” he said “Yeah”. He said he did not want to be labelled as a snitch. At about 18:45 minutes into the recording the officer in charge came into the cell and asked “You understand now that you’re here for the um the murder of, the shooting murder at the Sefton gym, in March this year? You understand that now?”

44. After he left, and UCO 665 questioned him further, the accused said “Honestly I didn’t, I don’t, I don’t know nothing bro. I think, cause I was parked there I was parked there, cause um. That day I was waiting for a mate to drop off stuff.” He said it was “two days before,” and they said they would come back to give him the gear but never did. He agreed with UCO 665’s question that he was talking about the place where the “guy got done”, and said “I was there wrong time, I think.”

45. When UCO 665 said to him “Um, but man I’ll get rid of the clothes bro, car, fucking tools” he responded “I’ve got rid of everything.”

46. He stated that he thought some of the others met up with someone. He said he thought there were two boys, and he wasn’t even there.

47. UCO 665 repeatedly stated that the accused was saying they were “your boys that did it” and the accused sometimes acquiesced. He said he thinks there were two, and he was asleep.

48. He said that “They got my car on camera” and confirmed that it was two days before.

49. The accused said he should never have been locked up. He stated he did not know anything and was lost. UCO 665 asked him “Are they going to find anything on your phone?” and he responded “No. Just only Threema.” He said he forgot to delete the message, “The one, the one that said they’re coming for you.” He said he screwed up because he forgot to delete this message.

50. The accused said that once his grandmother finds out about the situation, she will see him as a big disappointment.

51. When asked whether he covered all his bases, he said he “screwed up”. UCO 665 said he might be able to come back from it, “Where is it?” The accused said, “I passed out here, this is it, this, this is it, this is my hand.” He then said, “I threw it, I threw it into the bushes and um, that’s all.” He said he threw it into the bushes in Lansvale, near the water, but “That time I forgot to wear gloves,” he forgot, “So I’m pretty sure they think, I think, I think they’ve got the evidence.” UCO 665 offered to get a word out to someone for him, because “…these cunts aren’t gonna hold me, this is a matter of time.” The accused said “Yeah. Next time I’m going to call my sister, ask for a lawyer.”

Third period; about 5:39 – 5:56 pm; conversation with UCO 665 and UCO 643

52. Very shortly after the reference to his sister and a lawyer, the accused denied that he “shot the cunt”. UCO 665 asked “Or your mate did?” and the accused responded “No. I say … I say, so this one, I’ve got my own.” UCO 643 then entered the cell.

53. After the accused told UCO 643 they were “sussing” on him for murder, UCO 643 stated that when he came through there was paperwork and photos, cars, “...like a silver boxy car.” The accused said “golf, like a silver, silver, silver, silver hatchback yeah?” UCO 643 said it looked like a “beamer as well.” And that it was “Ds in suits” that had these photos.

54. UCO 665 asked the accused whether he thought the cars are an issue, if they have photos of them. He said “Yeah, I reckon.” UCO 665 asked “which car” and the accused referred to the BMW and the hatchback. UCO 665 asked whether he was driving one of them and said he was driving the BMW. He said it was not used in the shooting. He agreed that “the other one was used in the ...”. He said the hatchback was in the shooting, but he was not driving that one. He said that he was driving the “beamer… when I dropped off the boys.” He was asked whether he had gone on any highways and referred to “Hume Highway” and Auburn. He said he dropped the boys in Auburn, “before.”

55. The accused said this was at about five (or four or five). He said he went home but did not go straight home – he went to a friend’s house.

56. UCO 665 asked “Did they get rid of the other car?” and the accused said “Yeah, but that was, was, after they did the murder.”

57. The accused referred to a “shooter”, “that was mine” but said that “they had their own.” The type of shooter was “9 mill.” UCO 665 said to UCO 643 “He said he’s got his own 9 mill.” The accused confirmed that this was one that he had at home, he chucked it in the lake, but forgot to wear gloves.

58. UCO 643 referred to the Golf, and asked “but you burned it, didn’t ya? Did you?” The accused said, “I wasn’t there.” UCO 643 asked “Is that one gone?” The accused said “Different.” UCO said “Did you, what did you do with it? That one?” The accused’s answer cannot be determined. UCO 643 said “You burned it, yeah?” the accused said “Yeah.” UCO 665 said “Did they fucking, pour it inside as well?” the accused said, “Burnt inside too.” He said, he was sure.

59. The accused was asked about the “beamer” and he said, “Sprayed bleach.”

60. At 5:56 pm police came to take UCO “Diego” to be spoken with.

Fourth period: 5:56 to about 6:19 pm; conversation with UCO 643

61. After the accused stated that when he was arrested, he said “Why are you arresting me for, I’ve done nothing?”, and this was kind of true, because “I don’t know nothing”, UCO 643 told the accused about someone he knew who “got in a bit of shit, because, so what he did, he was organising the cars.” He would “pickup the hot car” and “would drop it off in the places…. where they needed to go.” He said “And, and he got done for that, because he would just drop the car…. And then he, he wasn’t even there afterwards, but he’s, he got done.” The accused said “Oh, yeah, cause that’s what, that’s what I was doing.” The accused asked UCO 643 whether he would be in for a while, “Like years?” He confirmed that he dropped/put the car there. When UCO asked, “How many of ya?” he said “Three.”

62. The accused discussed with UCO 643 the message from the person who had said on Threema “they’re coming for you”, how he had forgotten to clear this message, and asked whether this was evidence.

63. The accused said he didn’t do anything and was innocent. UCO 643 told him he would still be “in shit” if he dropped the car; it’s still murder. He said if you pulled the trigger or dropped the cars, it’s still murder. The three boys, the accused and his mates, can all cop murder. The accused said, “Oh fuck.” UCO 643 said to him “It’s not like you’re innocent, because you just dropped the car… You’re still in the shit.” The accused said, “Oh fuck.” He said he thought of murder as being at least maybe twenty years.

64. The accused made further reference to the fact that he should have cleaned the messages. He referred to having chucked something away, and to an iPhone. He referred to having smashed a phone into tiny pieces, and to it being his own personal one, and to throwing it in the bush, a week after that incident.

65. The accused stated that he was good hearted and not violent, but “when it comes to money bro, that’s when it gets to me”. He said money was everything for him and referred to “… give me some papers” UCO 643 asked him whether they looked after him much/did he get good pay? He said he did, and when asked how much said “Twenty” it was about 6:13 pm by this stage.

66. UCO 643 asked the accused about the phone that he smashed, and he stated that he threw it in the ocean, Lansvale Lake. He said he did this “straight after.”

67. The accused referred to staying in Silverwater for a bit, then “...court sentences, and that’s when, that’s when court will find, say for how long.” Then at about 6:17 pm there was the sound of a phone ringing.

68. UCO 643 said to the accused “What about the boys that did the murder with you?” The accused said, “They’re all overseas”, and that they left straight after. He said he was talking to them “now” by Threema.

69. UCO 643 asked the accused where he knew the boys from, and he said “The area and shit like.” The following conversation then occurred:

“Pham: Yeh, I still, I’m not, I’m not gonna say anything. I’m not gonna say anything, if they ask questions.

UCO 643: Well, that’s, yeah, that’s up to you man, you know what I mean?

Pham: Because, look, because if I say something, I’m going to be labelled a snitch.

UCO 643: Mmm. Yeah. You gotta do what you gotta do man.

Pham: Yeah.”

Fifth period: 6:19 to about 7:18 pm; UCO 643 and 665

70. The accused wondered aloud whether he could get bail, then UCO 665 entered the cell. Soon after this the UCO indicated that he had seen papers with the female Detective, and that there were three cars, and it said on the top that there were cloned plates. He asked the accused what the go was with that? The accused said “Yeah, that’s their car.” He was asked what happened with the cloned plates, given that he had said the beamer was a family car. The accused said cloned plates were for the other car, the Mazda. He did not know how the cloned plates were obtained. The accused said he did not know because it was a “long Threema situation” but no one knows each other. He said “...we know each other, but, but there’s another guy that’s operating it… We, we don’t know him.” The accused said he knew the boys but did not know who was operating everything.

71. The accused then said he thought he knew the boys because he partied with them, but then said they were “randoms,” then said they were kind of his mates but they were not that tight.

72. UCO 643 said he thought the gun was a big problem and talked with UCO 665 about this, and about it not even being the thing “used in the ...”, and that he got rid of the thing just after it. UCO 665 then said “Did youse get rid of the actual gun used?” The accused said “Yeah” and that this was “like proper”, confirming that the one he “chucked out” was a personal. UCO 665 asked about the one that was used, which was the problem one, and the accused said, “The one they used, they threw it.” He said they chucked it but he did not know where. When UCO 643 raised the issue again of the gun he himself had gotten rid of in deep water, the accused said “I, I don’t know, probably have. I think that they got rid of, rid of it somewhere, but I don’t know where.”

73. UCO 665 asked the accused if it was “contracted”, and he agreed. He asked how much, and the following was said:

“Pham: Say, split, split, split between like, three boys. Say, the, the two that did the hit.

UCO665: Yeah.

PHAM: Gets paid, they get paid forty.

UCO665: Forty G’s each?

PHAM: Yeah and for me, um, I’m just the driver.

UCO665: Yeah.

PHAM: So, I only get paid twenty.”

74. The accused said that as driver he was not “driving them there” but dropping them off at the location. He confirmed he picked the boys up before they did it, that he was on “the Hume”, in the family car/Beamer. He said he dropped them off at the other car, the Mazda. He agreed with UCO 665’s proposition that they went and did the shooting, and when asked “where do you pick them up from after?” said Bankstown. UCO 665 asked him to confirm that they got rid of the Mazda before they came to see him, and that they were in the VW, and he did so. It was about 6:33 pm by this time.

75. After some conversation about relationships and friends, the accused said “But fuck, I don’t know what to do bro. So, I should, should have backed out.” He repeated that he should have backed out. When UCO 665 said that twenty grand was a bit of money, the accused agreed. He said he was worried for his grandmother.

76. After some further conversation about dogs, and the way the accused’s dog follows him around, the accused said “I’m gonna be in in for a while bro, I won’t, I won’t, I won’t be able to get to do that bro.” He talked about life in prison, and the fact that he might go insane. He said he was worried what to say to them, what they are going to ask him to do, and said he will say he doesn’t know anything. He said “I know” when UCO 665 said “Cause you, you know, you know you did it right, but do they fucking know like, that’s what I’m wondering.” He reckoned that if he says something they’ll keep him inside for sure. He said “Fuck, fuck, fuck, fuck what … fuck, I don’t know shit, and I’ll say, I actually don’t.” He said if they ask him why on the day was his car there, and he would tell them he was just getting drugs. He said he was paid cash. At about 6:50 pm he mentioned again his sister and a lawyer:

“PHAM: But I still got to get a lawyer.

UCO665: Mmm?

PHAM: I just, I just ask them. I just call my sis, sister, ask, ask them to let me call my sister and ask her to get for lawyer for me and yeah.”

77. After answering questions from the UCOs as to what they could do for him on the outside he said “Fuck sake. This is so shit. Bro, I wish, I wish I could go back in time and just play …. Then, then I would be a free man instead of this shit. But fuck, money, money makes you become blind.”

78. The accused stated that the boys from the murder were Vietnamese and he met them through other mates.

79. The accused was asked: Why the particular male at the gym? He said he did not know, continuing “Fuck mate, it just means, it’s best that, to, to not know than to know. You know what I mean?” He repeated that he actually doesn’t know anything, and when asked who got the job he said he thought it was one of the boys, “…but, but that’s for me not to know, you know what I mean.” He stated that it is best for him not to know so he can’t get questioned.

80. The accused acknowledged again that he had gotten rid of a gun (and further discussed a plan put forward by the UCOs to find it and sell it and give money to his grandmother). When reminded he had said it was a “nine mill” he said he thought it was but was not too sure, and “I see under it, I never seen it, but I reckon it’s nine mill.”

81. The accused stated that the other two males were his mates. He said he had only known one of them for a year and the other for quite some time. UCO 643 asked him about the mate he had known for a year and the accused said “Yeah, and the other bloke, cause like, no one was willing to, to, to do the job. That’s why they asked me.”

82. He repeated “I don’t know nothing.” He left the cell with investigative police soon after, at about 7:18 pm.

83. The accused was moved to the interview room and engaged to an extent with police. This was recorded. He exercised his right to silence. The transcript of this exchange is in Exhibit VD1 as is the recording, which was played in Court.

Sixth period: about 7:53 pm to 8:10 pm; conversation with UCO 665 and 643

84. When the accused returned to the cell the UCOs asked how he was. He said “I’m thinking bro. If I say something right, I’m gonna, I’m gonna get fucked up. But if I don’t it’s gonna be twenty-five to life.” He indicated concern that if he said something it could be bad for him, he could make enemies inside, and might be killed and labelled as a snitch. He repeated a number of times that he was going to be doing twenty-five to life if he did not talk, and when asked by UCO 665 as to what had happened or changed, to make him talk this way, he said “Cause, they, they, they are making me give up, give up the, the, the shooter and driver.” The accused was removed from the cell at 8:10 pm.

Other relevant police evidence

85. The recorded conversation was monitored in real time by Senior Constable Lalic and by Detective Sergeant CIN 1625, the supervisor of the UCOs. They were able to be in contact with Detective Sergeants Glenzendorf and McGee.

86. As previously noted, the statements of the two UCOs do not record any account from them of the conversation with the accused. The material tendered for the Crown did not include any account of the admissions to the UCOs other than the recording, and the transcript provided as an aide memoir.

87. Detective Sergeants Glenzendorf and McGee both gave evidence that a reason for not offering the accused the opportunity to participate in an interview earlier than occurred was because there were two search warrants being executed. Detective Sergent McGee essentially also acknowledged that the formal offer to be interviewed was timed to allow further admissions to be made by the accused, so long as he was engaging with the UCOs. The latest search completion time was 6:08 pm, with a message added to the police group chat at 6:17 pm confirming that the search had been completed.

88. No police officer who interacted with the accused on the day of his arrest, or monitored his conversation, observed any intellectual impairment.

The expert evidence

89. Dr Dayalan interviewed the accused on 30 August 2024 via AVL and prepared a report dated 16 September 2024. He was of the opinion that the accused’s psychological development had been impacted by parental neglect, growing up in an unstable environment, and experiences of bullying and physical and emotional abuse. Dr Dayalan diagnosed the accused with an intellectual disability, mild in severity by reference to the DSM-5, which is a chronic condition that the accused would have been suffering from during the recorded conversation. His intellectual functioning at the time was “extremely low range” and would have been further impaired from the accused’s use of substances.

89. Dr Dayalan reported that the intellectual deficits of the accused have had an impact on various aspects of his life, specifically affecting his ability to comprehend, reason and judge situations. Dr Dayalan believes that the accused’s disability made him particularly vulnerable to exploitation. Further, Dr Dayalan expressed the opinion that it is likely that the accused was distressed when the UCOs were discussing the nature of the allegations with him during the recorded conversation. Dr Dayalan described the demeanour of the accused as “quite credulous.” Given that the accused was eager to share his grandmother’s address, on the assumption that a person he had just met in the cells would retrieve the gun and give money to his grandmother, he thought this showed that the accused was gullible and prone to be easily led by the UCOs. It was his opinion that although the accused did not lack complete capacity, his intellectual disability affected his ability to recognise the consequences of disclosing information to the UCOs, who were strangers the accused had just met in the cells.

90. Dr Dayalan gave evidence about Mr Pham’s deficits in academic, learning and social functioning which meant he struggled to form connections with others despite being desperate to have secure relationships, as he was deprived of them in his childhood. The accused had told Dr Dayalan that he had a tendency to be easily manipulated by individuals. Dr Dayalan attributed his poor judgement skills to his intellectual disability. Dr Dayalan opined that the accused’s intellectual disability coupled with withdrawal from substances were significant factors that contributed to his disclosure of information to the UCOs.

91. During his evidence Dr Dayalan attributed some aspects of Mr Pham’s behaviour during the recorded conversation to his intellectual disability. He thought it would be difficult to apportion which aspect of the accused’s judgment was due to his intellectual disability and what to the substance use but did reinforce that Mr Pham’s intellectual disability was a permanent condition which would have had some impact on the accused during his engagement with the UCOs. Dr Dayalan stated that Mr Pham’s giving of his grandmother’s address in the hope that the UCOs would retrieve the gun he had discarded and give his grandmother the money from selling the gun was indicative of being gullible.

92. Dr Dayalan did not agree with Dr Farrar’s diagnosis of intellectual disability, likely borderline severity, as “borderline severity” is not a psychiatric term used to describe intellectual disability. His understanding of its use is to describe someone who has intellectual impairment but does not meet the diagnostic criteria for intellectual disability, which he maintained the accused does.

93. Dr Dayalan confirmed during re-examination that people with intellectual disabilities “more often than not” exhibit four traits: a desire to have people’s approval, poor judgment, being easily led, and giving unwise or inappropriate trust in a person.

94. Dr Farrar assessed the accused on 18 October 2024 via AVL while he was at Bathurst Correctional Centre and prepared the psychiatric report dated 31 October 2024. Dr Farrar consulted several documents during the preparation of this report including an instructing letter from the ODPP, the indictment, Mr Pham’s criminal history, Dr Dayalan’s psychiatric report, the transcripts of the recorded conversations of Mr Pham and the UCOs, Mr Pham’s ERISP, forensic procedure videos, the audio and transcripts of the calls Mr Pham made to the Australian Passport Office and his school and medical records.

95. Dr Farrar recorded DSM-5 diagnoses of intellectual disability, likely borderline severity, and cocaine use disorder. During the assessment, Dr Farrar observed the accused to have mild deficits in his orientation.

96. Dr Farrar was of the opinion that there needed to be further neuropsychological evaluation (including IQ testing) and formal evaluation of the functioning and living skills of the accused to ascertain the level of his intellectual disability. Dr Farrar’s overall impression was that the accused’s intellectual disability is “at least borderline, or possibly mild.” Dr Farrar came to this conclusion after assessing Mr Pham and from the external information which she was provided prior to the assessment. The information relied on included Mr Pham’s IQ testing in the mild range when aged 9, in combination with Mr Pham’s reasonable level of independent living with minimal support from family and no support from government agencies such as NDIS.

97. As to whether Mr Pham’s intellectual disability made him “quite impressionable and easily led to disclose information”, Dr Farrar noted that his intellectual disability would have contributed. However she stated that Mr Pham was not someone who regularly lacked capacity when it came to decision-making or deciding to engage in certain behaviours. Dr Farrar supported this by noting that Mr Pham has been able to consider and decide who to engage with in the past, particularly when he declined to participate in a formal police interview. Dr Farrar believes that the accused’s role in the alleged offending suggests he was capable of exercising complex planning and decision-making skills – which assisted in driving, discarding the evidence (gun and phones), and organising to travel overseas (booking plane ticket, obtaining a passport and visa, organising accommodation and notifying his employer).

98. Dr Farrar did note that there could have been other factors which led the accused to be easily led to disclose information to the UCOs, including substance intoxication or withdrawal, and anxiety.

99. Dr Farrar confirmed in evidence that she thought that the accused’s diagnosis of intellectual disability was sustainable but noted that this was based on formal psychometric assessments that dated back to his childhood. Dr Farrar asserted that to diagnose someone with intellectual disability, it is necessary to consider the person’s adaptive functioning. Dr Farrar’s impression was that Mr Pham’s adaptive functioning was reasonably intact with mild issues with memory and orientation. Essentially, Dr Farrar’s assessment was that the accused’s intellectual disability was borderline severity which means “in between normal and mild intellectual disability”.

100. Dr Farrar suggested that the likelihood of the accused being impressionable could have varied. Dr Farrar did not perceive him to be impressionable during the psychiatric assessment; however, she did not rule out the fact that he could have been impressionable during his recorded conversation with the UCOs. Dr Farrar also pointed out that Mr Pham’s impressionability may have been caused not solely by his intellectual disability when there were other factors to consider, such as his history of substance use.

101. Dr Farrar was cross-examined about the characterisation of the accused’s intellectual disability as “borderline”, which is not one of the four terms used to identify the levels of intellectual disability in the DSM-5. Dr Farrar responded by saying that, although not such a term, it is commonly used to refer to a person who does not meet the full criteria for a mild intellectual disability diagnosis.

102. Dr Farrar reiterated that Mr Pham’s decision to interact with the UCOs could have been influenced by other factors including his level of intoxication and withdrawal, and possibly personality vulnerabilities, along with his intellectual disability. Dr Farrar’s view was that other features such as anxiety likely contributed to the decision by the accused to participate the way he did in the recorded conversation but agreed that anxiety was difficult to disassociate from the intellectual disability and can be a component of it.

The submissions of the parties:

Evidence Act s 84

104. Senior Counsel for the accused addressed this basis for exclusion orally. She referred to features of the interaction between the accused and UCOs said to support exclusion pursuant to s 84. To the extent that this had been addressed to some extent in writing (such as by reference to the nature of the interaction between the accused and UCOs), I have taken this into account also – however it corresponds with the oral submissions referred to here.

105. It was submitted that the admissions were influenced by oppressive conduct because of two components of the interaction, being the circumstances in which the accused found himself at the police station and the actual content of the way the UCOs approached speaking to him.

106. It was submitted that whilst there may often be an appropriate element of deception and encouragement in undercover operations, the UCOs in this case went beyond that and applied a degree of psychological pressure and oppression upon the accused. This could be seen straightaway (on page 1 of the transcript) by raising the suggestion of talking, then the next page being straight into the topic of why the accused was there, repeating that question. The page after that he was asked “What happened? What happened?” On the fourth page there was further pressure to talk about what had been said to the accused:

“Well, what the fuck? What did they say? What did they say? Yeah, but, like, what, what, what? Which, like, murder? What did they say? What did they ‑ did they tell you what they think?”

107. It was submitted that whether or not the police were aware of it, the accused is not a person of high intelligence. He is a person who Dr Dayalan says has an intellectual disability, and on Dr Farrar’s opinion, is still a low‑functioning person and a person of low intelligence.

108. Bearing that evidence in mind was submitted to be important in considering the references, on page 5, wherein the UCO was continuing to question Mr Pham by saying, “Fuck, did they tell you what? Like, murder? Like, was it some kid or guy? What was it?” then “Did they tell you what area?” The UCO was submitted to be “at him” to get details. Then from page 6, towards the bottom of that page at about line 28, the UCO said, “Bro, if they stopped you at the airport for, like - they’ve got a fucking reason, right?” It was submitted that this was the beginning of a pattern of putting doubt into Mr Pham’s mind that he must be guilty or there must be something wrong, otherwise the police would not be arresting him in such dramatic circumstances. It was submitted that this developed through to the way the UCOs spoke about their methods of evading police, avoiding detection and getting rid of evidence, to make the accused feel like he had not done enough, and prompt him to tell them what he had done with evidence, with the added promise that they could possibly help him deal with that evidence.

109. It was submitted that from page 7 there was a degree of persistence in the UCO’s questioning. It was submitted that page 8 demonstrated the feature of causing the accused to doubt himself by saying he had to watch his electronic stuff before asking him on page 8 what he thought the police had on him.

110. Reliance was placed on the fact that from about page 11 the references commenced to the accused not having deleted a message from someone saying the police were coming for him. This was said to demonstrate his lack of sophistication and illogical concerns, and also became something the UCOs played on to make the accused worried that someone else was talking to the police, intending to make him consider that perhaps he needed to speak as well.

111. It was submitted that from page 13 the UCO returned to the idea that if he was stopped at the airport there must be something wrong, leading on to ask him whether he’s “got rid of tools and shit”, and from page 19 whether he had all his “ducks in a row, like” talking about his own “experience” in getting rid of clothes, car and tools.

112. The reference on page 27 by the UCO to being happy to help was submitted to represent a theme that continued through the conversation of suggesting that they can help him with evidence. It was argued that the high point of these offers - a plan to find the gun he disposed of and sell it, giving money to his grandmother - exposed how gullible and influenced the accused was.

113. Senior Counsel submitted that the oppressive nature of the offers was compounded by the introduction of the second UCO, with two people making the accused think he may not have done enough to protect himself; but there were measures that he could perhaps undertake if he gave them further information. It was the second UCO’s story about how he had shot someone and dumped the gun far out to sea which made the accused talk about how he had thrown his gun in the lake at Lansvale.

114. It was submitted that the manner that the UCOs spoke moved into the category of being psychologically oppressive and influencing the things that he said.

115. The Court was taken to parts of the recorded conversation where the UCOs provided advice to the accused that action such as co-ordinating cars can render someone equally as guilty of murder as a shooter. The provision of, in effect, misleading legal advice, without any reference to a mental element required for culpability for murder, was submitted to add to the oppressive nature of the conduct of the UCOs.

116. It was submitted by the Crown Prosecutor that the accused has not demonstrated on the evidence that there is a reasonable possibility an admission or its making were influenced by proscribed conduct. It was submitted that the admissions were not influenced by “violent, oppressive, inhuman or degrading conduct” or any threat in that regard.

117. It was submitted that common law voluntariness cases such as Tofilau vThe Queen (2007) 231 CLR 396; [2007] HCA 39 (‘Tofilau’) offer contextual assistance, particularly with respect to the assessment of potential oppressive conduct. Even where it was acknowledged in that case that the operation necessarily involved “powerful psychological pressure”, the appellants were not successful in having their admissions rendered inadmissible. The Crown stressed the detail of the circumstances of the “powerful psychological pressure” in Tofilau and submitted that this matter falls far below the bar of oppression for the purposes of s 84. Reliance was placed upon the judgment of Callinan, Heydon and Crennan JJ at [322], which included the statement that:

“… it is highly unlikely that the appellants’ confessions would have been excluded under ss 84 or 85 if those provisions had been in force in Victoria, since the conduct of the operatives was not violent, oppressive, inhuman or degrading within the meaning of s 84 ….”

118. The Crown submitted that there is no basis to suggest that the utterances given were not voluntary, and the accused clearly retained the capacity to exercise a free choice to speak or be silent, referring to Higgins v The Queen [2007] NSWCCA 56. It was submitted, citing R v Ul-Haque [2007] NSWSC 1251; (2007) 177 A Crim R 348, that it could not reasonably be found that the will of the accused was overborne by any circumstance. It was said that perceived psychological pressure that is predicament related rather than conduct related is not the product of oppressive conduct but is a response to an individual’s predicament only, referring to R v Tang [2010] VSC 578 at [25] (T Forrest J).

119. It was submitted that “Oppression” involves the exercise of authority or power “in a burdensome, cruel or unjust manner”, citing Fitz-Gibbon v Wily (1998) 87 FCR 104.

Evidence Act s 138

120. There were five aspects of the evidence upon which reliance was placed for the accused. The first, which was the focus of the argument, was on the suggested non-compliance with the condition of the warrant. It was submitted orally that if the recording occurred in contravention of the condition imposed by Sweeney J it was unlawful. Senior Counsel for the accused made the following written submissions regarding the construction of the condition placed by Sweeney J on the warrant:

“(a) The condition was activated if and when Mr Pham “decid[ed]” not to speak to police. That is, it was activated upon the outcome of a thought process of Mr Pham, not an external action. That said, for the police to abide by the condition, they would have to be apprised of Mr Pham’s decision. This could happen if he volunteered a position and, if he did not, required them to ask;

(b) The condition was activated upon Mr Pham deciding “not to speak” to police. The condition here was not in terms about his right to silence as such but was in more accessible language. It would not, however, have been intended to relate to innocuous topics. To be sensible, the condition has to be understood as being directed towards speaking about the alleged offence;

(c) The condition was activated if and when Mr Pham decided not to speak to “police”. This would have to mean police identifiable to Mr Pham as police, not the undercover operatives. One does not make a decision to speak or not to a category of person in disguise;

(d) Once the condition was activated, “police officers” were not to act. This must have been intended as meaning at least the undercover officers if not all police; and

(e) Any conduct directed to eliciting admissions and infringing his right to silence was broadly put. Unless Mr Pham were making admissions with no or little input from the undercover operatives, it pretty much prevented them from directing any conversation to the alleged offences and evidence.”

121. It was submitted that by the point corresponding with transcript page 63 at the latest (see above at [69]), the event contemplated in the condition on the warrant had arisen. It was submitted, in response to oral submissions advanced by the Crown, that it was unrealistic to require proof of an absolute decision to not speak. Further, it was submitted that it did not matter if not wanting to be labelled a “snitch” contributed to the decision to not speak with police.

122. In oral submissions it was contended that in light of this clear-cut reference at transcript page 63 of the transcript of the recording, the two earlier statements (the reference to a lawyer corresponding with transcript page 7, before any admissions were made, quoted above at [39] and to transcript page 13, saying “Yeah, I’ll see if they, if they ask questions and I’ll tell them I don’t know shit, what the fuck are you arresting me for? And honestly, I fucking don’t know anything bro”) should be taken to reflect a similar attitude to the statement of intent at page 63. It was submitted that the reference to seeking a lawyer was early on and needed to be considered in the context of the accused’s Part 9 rights having been “speed read” to him, and no support yet having been provided in relation to contact with his family.

123. Secondly, Senior Counsel for the accused submitted in writing that the psychiatric evidence demonstrated that Mr Pham has “impaired intellectual functioning”, making him a vulnerable person for the purposes of clause 28(1)(b) Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) (“LEPRA Regulation”), unless Sergeant Hextell reasonably believed he was not intellectually impaired. It was submitted that whereas Sergeant Hextell might have believed this, it was not a reasonably held belief, because their interactions were not sufficient in time or content for him to ascertain whether Mr Pham had an intellectual impairment.

124. It was submitted that Sergeant Hextell was accordingly required, as much as practicable, to assist Mr Pham in exercising his rights: clause 29(1) LEPRA Regulation. It was submitted that a “speed read” was consistent with the time recorded on the Custody Management Record of 4:54pm for “Copy given, read aloud and signed by PIC”, when Sergeant Hextell roughly finished the task. That is, about five minutes after he finished the assessments.

125. Senior Counsel contended that simply reading the document to Mr Pham, especially in the manner in which Sergeant Hextell speaks was not sufficient; practical assistance and encouragement was required at a minimum to have Mr Pham speak to a relative. In the absence of this, it was improper for the custody process to continue further.

187. I do not regard the fact that two UCOs were involved as an impropriety. I accept that it was always intended to use one or both of the UCOs, and the way the application was framed was not designed to mislead the Court on this topic.

188. I am not satisfied that the references to culpability for murder without explanation of the mental element amounted to a significant departure from minimum standards of acceptable police conduct so as to constitute to an impropriety.

189. As to the portion of the recorded conversation (and any correlating evidence that could be given of its content) I have found was obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or of a contravention of an Australian law, the desirability of admitting the evidence does not outweigh the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. The onus is on the Crown to satisfy me of the balancing exercise favouring admission, and it has failed to do so.

190. By reference to the considerations set out in s 138(3), the probative value of some of the evidence is high. I have set out in detail the admissions made by the accused during the impugned portion of the recorded conversation. I do not regard the probative value of the admissions made after the accused was returned from the interview room as having the same degree of probative value as those made beforehand. The clearest inference is that he was stating something he had been told, rather than volunteering a meaningful admission of his own guilt. This was not raised in the evidence before me; however the accused was out of the cell for a longer period than captured in the recorded conversation in the interview room, and not all police involved in this operation gave evidence.

191. The importance of the evidence in the proceedings is not very high. As at 23 April 2023 the police were of the view that they had sufficient evidence to arrest and charge the accused. I have allowed the Crown to adduce evidence of significant admissions to the UCOs up to 6:19 pm. The incremental value of the portion I propose to exclude is not high.

192. The offence is plainly of the utmost seriousness.

193. I am of the view that the impropriety or contravention of the Surveillance Device Act was very grave. The Court has not been called on to determine whether the covert operation itself, in the circumstances of this case, was improper, nor whether use of the fruits of it in the trial of the accused is unfair, because of the impugning of the freedom of choice of the accused as to whether to talk to the police. However, it was obviously exquisitely connected with the operation of fundamental rights of those suspected of crime. All involved needed to act with extreme caution to not infringe those rights. Any condition placed upon a warrant by an authorised judge must be treated with the utmost seriousness, and this was a particularly important one. Even apart from the condition, the importance of the right to silence should have caused the officers to cease questioning the accused at the point he said what he said at about 6:19 pm.

194. As to whether the impropriety or contravention was deliberate or reckless – none of the officers gave evidence that the comment sounded “alarm bells” to them. However the point is that it should have. The terms of the condition were known to the relevant police officers, and three police officers with knowledge of it would have heard the accused say what he did. The undercover operation was deliberately continued, knowing the accused had said what he did, and knowing the condition on the warrant. The conduct was deliberate, even though no officer acknowledged deliberately breaching the terms of the condition.

195. On the material before me s 138(3)(f) and (g) are not important. As to s 138(h), there likely would have been difficulty in obtaining the specific admissions made in the impugned part of the recorded conversation without the leadup to that point, and the rapport developed between the UCOs and the accused, and the admissions made. However, the recording and/or the active questioning simply had to stop. Difficulty of obtaining the evidence without continuing in contravention of the condition supports exclusion in this case, rather than admission: Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1 at [20].

Evidence Act s 90

199. The final basis upon which it was submitted that the evidence of the admissions is liable to be excluded is pursuant to s 90 of the Evidence Act, which provides as follows:

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

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

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

Note: Part 3.11 contains other exclusionary discretions that are applicable to admissions.

200. As was noted by Bellew J in R v Gallagher [2013] NSWSC 1102 at [219] – [221], [240], the fact that the High Court in Tofilau rejected the ground of appeal argued on behalf of the appellant Clarke, based on the common law unfairness discretion to exclude admissions, does not mandate the result of the application to exclude other admissions obtained via the use of police deception, in another case, pursuant to s 90. Callinan, Heydon and Crennan JJ said in Tofilau at [418] that “Nothing said above should be taken as a warrant for any undiscriminating reception of evidence gathered by police officers acting covertly.”

Burden and standard of proof

201. The burden of demonstrating that it would be unfair to the accused to use the evidence rests on the defence: Em at 91 [63] (Gleeson CJ and Heydon J). To the extent that the accused relies on particular facts to meet this burden, they must be proved on the balance of probabilities, in accordance with s 142(1) of the Evidence Act.

202. If the Court finds that it would be unfair to the accused to allow the Crown to use the evidence of his admissions, that does not lead as a matter of course to their exclusion. Rather, such a finding enlivens the discretion of the Court, which then “may refuse to admit evidence” of the admissions.

What is “unfair” for the purposes of s 90?

203. In Em, s 90 was held by Gummow and Hayne JJ at 101 – 105 [96] – [97], [109] – [112] (the other members of the High Court not expressly considering the issue; cf. Gleeson, CJ and Heydon J at 83 [42]) to be a “safety net” provision, to be considered only once it had been established that all other sections of the Evidence Act pursuant to which an admission might be excluded had no operation. Further, their Honours held that consideration of the reliability of an admission was irrelevant in Em to the operation of s 90, given that such issues are properly to be dealt with under s 85. However, their Honours indicated a contrasting situation would arise in circumstances where (as here, but not in Em) the admission was not made in the course of official questioning or “as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued”. Section 85 has no role in these proceedings because neither UCO was an “Investigating official” as defined in the Dictionary to the Evidence Act because police officers engaged in covert investigations under the orders of a superior are excluded.

204. The judgments in Em articulate the broadness of this exclusionary provision. Gleeson CJ and Heydon J held at 89 [56]:

“The language in s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning. … In any particular case, the application of s 90 is likely to be highly fact-specific.”

205. Their Honours at 93 [72]-[73] held that reliability is a factor affecting the fairness of the use of the admission, quoting the judgment of Toohey, Gaudron and Gummow JJ in R v Swaffield (1998) 192 CLR 159; [1998] HCA 1 (‘Swaffield’) at 197 [78]: “Unreliability is an important aspect of the unfairness discretion, but it is not exclusive.” The admissions in Em were not unreliable, in the sense that they were completely recorded; and the theory advanced at trial that they may have been made falsely to protect Em’s friends was not before the trial judge determining admissibility and was implausible in the circumstances of that case. As noted above, Gummow and Hayne JJ held that questions of unreliability were not relevant in the particular case because s 85 was not relied upon although the admissions were made to investigating officials.

206. Gummow and Hayne JJ at 103 [107] stated that application of s 90:

“… requires consideration of whether there was identified some aspect of the circumstances in which the admissions were made that revealed why the use of the evidence, at the trial of the person who made the admissions, ‘would be unfair’. That is, the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as ‘fair’ or ‘unfair’.”

207. It follows, applying Em, that considerations of reliability are relevant to the operation of s 90. However, this is not the exclusive or predominant consideration. The applicable test is whether the Court is satisfied on the balance of probabilities that having regard to the circumstances in which the admissions were made, it would be unfair to the accused to use the evidence. What is “unfair” for the purposes of s 90 cannot be exhaustively defined, but where evidence is unreliable that is a factor which may affect the fairness of the use of the admission at trial. No issue of unreliability is raised in this matter.

208. Consideration of “unfairness,” not being restricted to the question of unreliability, it encompasses, amongst other matters, the Court’s determination, applying the following passage drawn from the majority judgment in Swaffield at [69], “…whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards.” While Swaffield was specifically concerned with the common law discretion to exclude admissions, the joint judgment made it clear at [69]-[70] that the principle espoused above is reflected in s 90 of the Evidence Act, and it has continued to be influential in shaping the scope of s 90. ^[2]

     2. See, for example, R v FE [2013] NSWSC 1692 at [123]-[126]; Pavitt v Regina [2007] NSWCCA 88 at [86]; Sidaros v The Queen [2020] ACTCA 11 at [52]-[55].

209. It was not the submission for the accused that his freedom to choose to speak to police or right to silence was impugned by the circumstances of this covert operation per se, such that adducing evidence of admissions made because of it would be unfair in his trial. There was no argument advanced in connection with s 90 beyond the arguments made under s 84 and s 138, except for the specific unfairness in the recorded discussions about destroying evidence or evading police.

210. By the endorsement for the accused of the consideration of s 90 as catch-all or safety net, I take it that the Court is asked to consider again, separately but most likely in their combined effect, the complaint as to the oppressive nature of the questioning, in light of the expert evidence and the fact that the accused was not free to leave the cell, the non-compliance with the condition imposed on the warrant by Sweeney J, the assertion of deliberate delay to circumvent the condition on the warrant, and the insufficient provision of assistance for the accused to speak to a support person or lawyer.

211. I have dealt with all these issues above. To the extent that the recorded conversation was made in contravention of the condition on the warrant, and admissions induced by conduct that was improper, the use of these in the trial of the accused would also be unfair, for the purposes of s 90, and I would exercise my discretion, were it necessary, to exclude it.

212. I have found that the balance of the recorded conversation was not recorded in contravention of the condition on the warrant, and that the police did not deliberately delay the offer of an interview to circumvent the condition on the warrant. I have found that the absence of more fulsome assistance for the accused to speak to a relative or lawyer did not cause the admissions to be made, the accused engaged without any reluctance in the recorded conversation, and there was no impropriety or oppression in the use sometimes of two UCOs instead of one. The accused had not established these circumstances in combination would render use of the admissions at his trial unfair. The additional consideration of the revealing that the accused was prepared to engage with “criminals” who destroy evidence and evade police does not change this.

ORDERS

213. The following orders are accordingly made:

1. The recorded conversation, from the point where the accused said, “I’m not, I’m not gonna say anything, if they ask questions,” to the end, is excluded pursuant to ss 90 and 138 of the Evidence Act 1995 (NSW).

2. Any evidence of the interactions of the accused with the UCOs during the period of time corresponding with the portion of the recorded conversation excluded by order one is excluded pursuant ss 90 and 138 of the Evidence Act 1995 (NSW).

3. The Notice of Motion dated 7 November 2024 is otherwise dismissed.

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Endnotes

Decision last updated: 10 March 2025