R v Rose - [2024] NSWSC 1614

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Rose [2024] NSWSC 1614
Hearing dates: 19-20 November, 3, 9 December 2024
Date of orders: 16 December 2024
Decision date: 16 December 2024
Jurisdiction: Common Law - Criminal
Before: Weinstein J
Decision:
(1) The covertly recorded conversation between the accused and the undercover operative of the Queensland Police Service with the assumed name of Hemi Perata whilst the accused was in custody after his arrest for murder at Cairns watch house on 20 February 2022 is excluded pursuant to s 90 of the Evidence Act 1995 (NSW).

Catchwords:
EVIDENCE – admissions – pre-trial hearing to determine admissibility of evidence of admissions – where accused made admissions to undercover operative in police custody – where improperly and unfairly obtained information used to elicit admissions – evidence of admissions excluded

Legislation Cited:
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Invasion of Privacy Act 1971 (Qld)
Surveillance Devices Act 2007 (NSW)

Cases Cited:
Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
Pavitt v The Queen (2007) 169 A Crim R 452; [2007] NSWCCA 88
R v Broyles [1991] 3 SCR 595
R v Mallah (2005) A Crim R 150; [2005] NSWSC 358
R v Swaffield & Pavic (1998) 192 CLR 159
R v Workman [2004] NSWCCA 213
Sidaros v The Queen [2020] ACTCA 11

Texts Cited:
Nil

Category: Procedural rulings
Parties: Rex (Crown)
Rodney Rose (Accused)
Representation:
Counsel:
S Oliver (Crown)
J Watts (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Universal Law (Accused)

File Number(s): 2022/00045909
Publication restriction: Nil

JUDGMENT

Introduction

This is an application by the accused pursuant to s 192A of the Evidence Act 1995 (“the Act”) to exclude a covertly recorded conversation between the accused and an undercover operative (“UCO”) of the Queensland Police Service (“QPS”) with the assumed name of Hemi Perata whilst the accused was in custody after his arrest for murder at Cairns watch house on 20 February 2022, and during which he made admissions as to his involvement with a murder.
Initially, the accused also sought the exclusion of statements by the accused to Detective Senior Constable (“DSC”) Hogan and DSC Apthorpe on 7 February 2022 recorded on body worn video (“BWV”), statements by the accused to DSC Hogan and DSC Briggs on 8 February 2022 recorded on BWV and in an Electronically Recorded Interview with a Suspected Person (“ERISP”) recorded on 8 February 2022. During the course of the proceedings before me, the Crown no longer pressed the items other than the covertly recorded conversation of 20 February 2022. However, it was conceded by the Crown that those items, and in particular the ERISP of 8 February 2022, were relevant to the accused’s application to exclude the covertly recorded conversation.
The accused relies solely on s 90 of the Act, which provides:-

90   Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—
(a)  the evidence is adduced by the prosecution, and
(b)  having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

As the application concerns admissions, s 189(3) also applies:-

189 The voir dire
…
(3) In the hearing of a preliminary question about whether a defendant’s admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission’s truth or untruth is to be disregarded unless the issue is introduced by the defendant.
…

It is not in dispute that the accused made admissions to the UCO, such that s 90 of the Act applies. It is also not in dispute that much of the conversation with the UCO during which the accused makes no admissions has little if any relevance.
The accused is charged with the murder of Steven Ponton on or about 6 February 2022 at Ballina contrary to s 18(1)(a) of the Crimes Act 1900.
At 4.55pm on 5 February 2022, the deceased was found with significant injuries by members of the public in Holden Lane, behind his unit at Tamar Street, Ballina. The deceased was taken to hospital, but he died the following day on 6 February 2022. His cause of death was recorded as "significant injuries secondary to trauma of unknown mechanism in a patient with end-stage liver disease".
The Crown alleges that the accused assaulted the deceased inside the deceased’s unit, causing his death. A jury is to be empanelled in Lismore on 3 February 2025, so that there is some haste in writing this judgment.
As part of its case, the Crown proposes to rely on evidence of admissions made to two civilian witnesses, Mr Jacob Ellis and Mr Wayne Shepherd, on 5 February 2022. They made statements to police on 9 February 2022. Those admissions are not challenged and Mr Ellis and Mr Shepherd will give evidence at the trial.
For the reasons set out below, in my opinion, having regard to the circumstances in which the admissions were made to the UCO on 20 February 2022, it would be unfair to the accused to use the evidence of the entirety of the conversation, and in the exercise of my discretion, I refuse to admit the evidence of the covertly recorded conversation between the UCO and the accused on 20 February 2022.
At the outset, I wish to express my gratitude to Ms Oliver, who appeared on behalf of the Crown, and Mr Watts, who appeared on behalf of the accused, for the patient and collaborative manner in which they conducted the proceedings before me.

Evidence on the application

The following documents were tendered into evidence at the pre-trial hearing:-

The Crown tender bundle (Exhibit 1) containing 17 tabs, which included:-

The Crown Case Statement;

CCTV of Ballina Woolworths of 5 February 2022;

Statement of Jacob Ellis dated 9 February 2022;

Statement of Wayne Shepherd dated 9 February 2022;

BWV of New South Wales Police Officers DSC Emma Hogan and DSC Paul Apthorpe speaking with the accused on 7 February 2022;

Statement of DSC Emma Hogan dated 25 February 2022 with partial transcriptions of the 7 February 2022 and 8 February 2022 conversations with the accused referred to above;

ERISP of accused dated 8 February 2022 with transcript;

Photographs shown to the accused during the ERISP of 8 February 2022;

BWV of the arrest of the accused by QPS officers at Cairns on 18 February 2022 with transcript;

An audio recording of the accused’s conversation with UCO Hemi Perata with transcript;

Statement of UCO Hemi Perata dated 23 February 2022;

A copy of the Invasion of Privacy Act 1971 (Qld);

USB containing the various recordings;

Statement of DSC Lauren Paff dated 15 November 2024;

Statement of DSC Jarrad Webb dated 15 November 2024; and

A table of acts depicted on Woolworths CCTV on 5 February 2022.

The accused’s tender bundle (exhibit 2) containing 8 tabs, which included:-

Statement of A/Superintendent Grant Erickson dated 16 September 2024;

Documents produced by NSW Police on subpoena pages 76-122 & 194;

Statement of Detective Sergeant (“DS”) Jeffrey Polkinghorne dated 21 February 2022;

Documents produced by QPS on subpoena pages 8-16 and 45-51;

Statement of DSC Samantha Meredith dated 11 May 2022;

Statement of DSC Paul Apthorpe dated 28 February 2022;

Custody Management Record and Part 9 with respect to the accused of 8 February 2022; and

NSW Police Facts Sheet H86323052 with respect to the larceny of a chicken dated 8 February 2022.

A diagram of the layout of Woolworths at River Street, Ballina dated 12 November 2024 (Exhibit 3).

Statement of DS Dave Mackie dated 3 December 2024 (Exhibit 4).

Bundle of documents produced on subpoena by NSW Police and QPS (Exhibit 5).

The following individuals were examined and cross-examined:

DSC (now DS) Paul Apthorpe; and

DS Michael Smith.

Background

The accused was homeless and itinerant. He had travelled down to the Ballina area from Queensland some weeks before the alleged offending. He had no fixed accommodation in the Ballina area, and he generally slept in a swag by the river or on the street. It is apparent from the evidence that he was a regular and heavy drinker of alcohol.
Sometime after the accused arrived in Ballina, but before the date of the alleged offence, the accused is said to have met a person named Michelle McLennan. Ms McLennan was also homeless at this time. She had previously been in a relationship with the deceased and had lived with the deceased for a period in his unit. However, it appears that the relationship broke down and in 2020, Ms McLennan was charged with intimidating the deceased. As of February 2022, an AVO remained in force against Ms McLennan for the protection of the deceased.
The Crown alleges that, between 12.40pm and 4.05pm on Saturday 5 February 2022, the accused went with Ms McLennan to the deceased’s unit at 33 Tamar Street. It is alleged that, at some point prior to 4.55pm, the accused assaulted the deceased inside the unit with the intention of causing him grievous bodily harm. It is alleged that the accused was motivated by an animus towards the deceased because of his impression of the deceased’s conduct towards Ms McLennan.

The Investigation

Mr Watts contends that the admissions relied on by the Crown were obtained in circumstances which make their use unfair to the accused, because of (at least in part) a cumulative pattern of unfair conduct by police officers, which persisted throughout the entirety of the police investigation and which culminated in the conversation between the UCO and the accused, which Mr Watts submits was an impermissible functional equivalent of an interrogation.
It is therefore necessary to set out my findings as to the full course of the investigation in some detail, as follows.

Initial lines of inquiry

The deceased was discovered at 4.55pm on Saturday 5 February 2022, lying on the ground in Holden Lane. He was found by two members of the public who lived nearby, Amanda Smith and Adam Joel. The deceased had significant injuries. The deceased allegedly told Ms Smith and Mr Joel that he had simply fallen over. Ms Smith called an ambulance. She told the operator that “it looks like someone has absolutely bashed him”.
An ambulance arrived at Holden Lane at approximately 5.12pm and the deceased was conveyed to hospital. He was in critical condition and suffered a cardiac arrest in transit.
NSW Police attended Holden Lane shortly thereafter. They entered the deceased’s unit and observed an upturned armchair and a substantial amount of blood. A crime scene was established.
Uniformed police officers began canvassing the area and speaking to residents. Several witnesses said that they had either seen or heard a man with a “really deep voice” and a woman together, in or near the deceased’s unit, at various points during the afternoon of 5 February 2022.
It became apparent, based on the injuries sustained by the accused and advice from doctors, that the deceased was unlikely to survive. Strike Force Bolar was established later that evening to investigate the assault of the deceased. It was anticipated to become a murder investigation due to the nature and extent of the deceased’s injuries.
Sergeant Hayden of the Lismore Crime Scene Unit performed a forensic examination of the deceased’s unit overnight. The results of that forensic examination, provided the following day on Sunday 6 February 2022, relevantly revealed the following:-

The accused’s fingerprints on the interior of a sliding door above the handle;

The accused’s fingerprints on a kitchen plate with leftover chicken and salad on it;

Empty packaging of a “lemon myrtle” Woolworths branded BBQ chicken. The packaging recorded that it had been cooked at 10.26am the day before (on Saturday 5 February 2022);

A bladder of cask wine; and

A bike lock with distinctive gaffer tape.

The deceased died in hospital at 1.10pm on the afternoon of Sunday 6 February 2022.

Questioning outside Westpac Ballina

The following day, on Monday 7 February 2022, DSC Hogan and DSC Apthorpe spotted the accused lying on the footpath outside the Westpac bank branch on River Street in Ballina. They approached him. Without issuing a caution, the officers asked the accused if he “knew anyone called Steve” from “Tamar Street”. They also asked him if he had “been to anyone’s house recently”. The accused denied knowing Steve from Tamar Street or having been in anyone’s house. He agreed to a search of his bag and person. He also told police that he used to have a bike but that it had been stolen a few days earlier.

Further investigation into the accused’s movements

On Tuesday 8 February 2022, police investigations identified that the BBQ chicken that had been found at the deceased’s unit may have been stolen by the accused from the Woolworths on River Street, at approximately 12.36pm on Saturday 5 February 2022, a few hours before it was found at the deceased’s unit. The police obtained CCTV footage from Woolworths which showed the accused moving through the store and appearing to pass the vicinity of the chicken warmer display, which is off camera, before paying for some item or items and then exiting the store. The accused was not seen with a chicken at any time on the CCTV. A short time later, the accused purchased a cask of wine from a nearby bottle shop.

Arrest in Ballina for larceny of the chicken

At 3.20pm on Tuesday, the accused was located near the Wharf Bar at Ballina where he had pitched his swag and was sleeping rough. DSC Hogan, DSC Briggs, DSC Paff, and DS Smith, together with Senior Constable Knight attended the location and arrested the accused for the larceny of the chicken. The accused was given a caution for the larceny charge. He was not told that he was a suspect in the murder, and he was not cautioned about it. The accused was asked where he went after he stole the chicken. He said that he did not know. The accused said that he had been intoxicated and that he did not remember stealing or eating the chicken, that he could not remember what happened four days ago, and that he could not even remember what happened yesterday. The accused asked why so many police officers were there. DSC Briggs replied that it was “just lucky”. It was conceded by the Crown, appropriately, that by this time the accused was a suspect in the murder.

The ERISP

The accused was loaded into a police van and taken back to Ballina Police Station. On arrival, the custody management record indicates that the accused presented as “slightly affected by alcohol”, but that he “seems fine, understanding all things that are said to him”. A search of his backpack revealed a key, which the accused said was for his bike lock. It was later ascertained that the key opened the bike lock that had been recovered from the deceased’s unit.
The accused was then interviewed by DSC Hogan and DSC Briggs, ostensibly in relation to the suspected larceny of the chicken. During the course of the proceedings before me, the Crown informed me that it did not propose to play the ERISP at trial, but she conceded that it was relevant to Mr Watts’s submission with respect to s 90 of the Act. The accused was partially cautioned, ie with respect to the larceny only and not the murder. As I have said, the Crown conceded that the accused was a suspect in the murder at the time of the ERISP.
The accused almost immediately attempted to exercise his right to silence, stating “I don’t want to say nothing”. The interview then proceeded, with the accused being asked and answering a great many questions over the course of approximately 35 minutes. During the course of the interview, the accused attempted to exercise his right to silence on at least 6 occasions, but the interview continued nonetheless. Notwithstanding that the accused was not cautioned that he was a suspect in the investigation into the murder of the deceased, he was asked questions and was shown photographs that pertained only to the murder investigation, and which were entirely irrelevant to the larceny. So much was conceded by the Crown. During this questioning, the accused was not cautioned that he was a suspect in the murder. The failure to caution was improper and unfair to the accused.
The questions commenced with asking about his bike. The accused told the officers that his bike had been stolen on either Sunday or Monday. He was asked whether the bike had been locked up and then he was asked questions about his bike lock. The accused described his bike lock as “a yellow one, I dunno what it’s called but it’s got … gaffer tape wrapped around one bit of it”. This description was consistent with the bike lock located at the deceased’s unit.
The accused said that he did not remember going to Woolworths on 5 February 2022, but that he went to Woolworths “just about every day”. He said he could not remember stealing a chicken, that he did not eat chicken and that he would rather steal something else, like corn beef. The accused said that he must have been pretty drunk. He said that he had been drinking every day. The accused accepted that he was captured in a still image from the CCTV footage that he was shown from Woolworths on 5 February 2022.
DSC Hogan asked the accused where he went after taking the chicken from Woolworths. The accused maintained that he did not remember taking or eating a chicken over the previous four days. The accused said, “If you say I stole a chook, I stole a chook … charge me with it … and let me go”. The officers pressed the accused about where he went after Woolworths. The accused said, “I’m not gonna answer no more of your questions, ay … this is giving me the shits … all over a fuckin’ chook.”
The questioning then turned to the subject of the deceased and the deceased’s unit. The accused denied recognising a picture of the deceased and denied having been inside the deceased’s unit. The accused was shown a picture of the chicken packaging located at the deceased’s unit and was told, “This is a picture the bag (sic) of the chook that you took from Woolworths on Saturday, the 5^th of February … that bag was found inside Steve’s unit”. The accused repeated that he didn’t remember anything from Saturday, and that “how it ended up there, I wouldn’t have no clue, if that’s the same bag.” I pause to note that there was no image of the accused taking a chicken from Woolworths without paying. No image shows the accused touching a chicken, and CCTV shows that he pays for some item or items before leaving Woolworths on 5 February 2022.
The accused was then told that his fingerprints had been found on a plate in the kitchen of the deceased’s unit. He was asked how his fingerprints would have come to be on the plate. The accused repeated that he did not remember Saturday and said that he did not know. The accused said that he had no recollection because he was drunk at the time.
Eventually the accused said to the officers, “Do you know what, I’ve got nothing more to say. I got nothing to say. Ok. Are you gonna let me go?”. The officers continued to ask the accused questions. The accused again said that he had no recollection of being in the deceased’s unit. He said, “I’m pretty much done talking, ay”.
The officers then showed the accused a photograph of the bike lock inside the deceased’s unit. The accused said, “Oh, oh, shit, that’s my lock. I just described it to you with the gaffer tape and everything … so I was there then… I was there… I must have been there… holy fuck.” He went on, “Man, I don’t remember being there. But that’s, I obviously was ‘cause that’s my lock. What the fuck?” He was asked questions about “a fellow named Steve”. He was shown a photograph “of the bag of chook that you took from Woolworths on Saturday, the 5^th of February”.
Toward the end of the interview, DSC Hogan partially cautioned the accused before informing the accused that the deceased had been found with significant injuries, that the deceased had been taken to hospital, and that the deceased had died.

DSC Hogan asked the accused what he could tell her about that. The accused replied, “Oh my God, no way. I don’t think I should, no way. I have no recollection but that’s my lock.” He again denied knowing the deceased. He said that he could not explain how the injuries to the deceased had occurred. He then said, “Ay, can you stop talking to me now? Interview is over … No. I’m not going down for murder. No way. We got nothing more to say. I told you the truth. But that is my fucking lock. That scares me”.
The police officers continued to ask the accused questions. The accused asked if he could go and have a smoke. When the officers asked him another question about the fingerprint on the dinner plate, the accused said, “I’ve, I really say I’ve got nothing to say, ay.” DSC Hogan then asked the accused about the fingerprint on the inside of the door of the unit. The accused said, “No, no, no, no. Pff, can I please have a smoke now?”
The accused asked what the police were going to charge him with. DSC Hogan said that they would discuss that after the interview. She asked the accused if there was anything else he wanted to tell her. The accused said, “No. I’ve got nothing to say.” The ERISP concluded at 5.21pm.
I infer that by the end of the ERISP, NSW Police knew that if they sought to further question the accused about the murder, either before or after arresting him, that he would exercise his right to silence.

Conviction for larceny and return to Queensland

The accused was refused bail on the larceny charge and his clothing and backpack were seized as exhibits in the murder investigation. He spent the night of 8 February 2022 in custody. DSC Hogan prepared a Facts Sheet with respect to the larceny which referred to the CCTV obtained from Woolworths and what was allegedly depicted in that footage. It correctly describes that the accused is sighted entering the store and walking through while pushing a shopping trolley. The Facts Sheet then states:-

“He is sighted to select a hot chook, lemon myrtle brand in the display warmer.
… He did not attempt to pay for the item.”

Those statements were not true. The CCTV does not depict the display warmer or the accused selecting a chicken from it or his failure to pay for the chicken. The Crown does not dispute that the Facts Sheet is incorrect. In her preparation of the Facts Sheet, DSC Hogan was, at least, careless.
Nonetheless, the accused pleaded guilty at Lismore Local Court the following day on 9 February 2022 on the basis of the Facts Sheet. He was sentenced and then released from custody.
Later that day, after the accused had been released, police obtained statements from Mr Shepherd and Mr Ellis, who both said that they had been with the accused and Ms McLennan in the hours after the assault was alleged to have occurred. Mr Shepherd and Mr Ellis told police that, during their conversation that evening with the accused, the accused had admitted to bashing the deceased and that he also told them he had stabbed the deceased in the head with a fork. That afternoon, DSC Apthorpe returned to the deceased’s unit and seized a fork from the loungeroom floor. The fork was covered in blood. The accused’s DNA was not discernible on that fork.

NSW Police Force liaise with Queensland Police Service

On 14 February 2022, the accused left Ballina and travelled by train to Cairns, Queensland.
On 16 February 2022, NSW Police obtained a warrant for the arrest of the accused on a charge of murder from the Local Court.
On that day, Detective Inspector (“DI”) Erikson of the NSW Police contacted DI Leadbetter of the QPS to request assistance with the matter that afternoon. He arranged for QPS assistance in the apprehension of the accused and to set up a covert operation to take place at the Cairns watch house while the accused was being detained awaiting extradition to NSW. DS Smith gave evidence that these sort of requests are made pursuant to a memorandum of understanding between NSW Police and QPS. Public interest immunity was claimed over that document. No challenge to that claim was made before me.
Email correspondence obtained under subpoena indicates that DI Erikson of NSW Police spoke to DI Leadbetter of QPS by telephone before sending him copies of the relevant investigation material by email (including the draft facts with respect to the murder, the accused’s criminal history, and a “Photograph of Target Rodney Rose”). The email also included a list of things, described as a “wish list”, that were considered “relevant or we would seek information from the target”. The “wish list” items were:-

“Location of ROSE’s bicycle (we believe this was at the scene at the time of the incident so if located, could be of a high evidentiary value).
Details of assault,
Any mention of a fork being used (or any other weapon),
Reason/motive for assault,
Location of McLENNAN at time of assault,
Who has he told about the incident.”

DI Leadbetter of QPS circulated this correspondence from NSW Police to his QPS colleagues, explaining that “NSW police are requesting assistance with locating this offender and then some extra work including a covert strategy in the [watch house]”. He allocated conduct of the matter internally within QPS to DS Weston, and stated that “DI ERICKSON has requested contact with case officers in order to get an idea of what could work in this case.” DI Erickson passed on contact details for DSC Hogan and DSC Briggs of NSW Police to the QPS officers, as well as copies of the warrant.
On 17 February 2022, DSC Hogan emailed the QPS officers to inform them that the accused’s bank records showed that the accused had visited a liquor store in Cairns numerous times over the preceding days. She suggested that presumably “he would still be in the area”. She provided an address for the store and a photograph of the accused obtained from the store’s CCTV.
On the morning of 18 February 2022, DSC Hogan forwarded the “wish list” email to DS Weston of QPS again, this time with some additional highlight emphasis. She said that “[h]ighlighted in yellow below is what we were thinking of for the undercover operation”.
Also on 18 February 2022 DS Weston emailed “Covert Requests” and carbon copied DS Polkinghorne and DI Leadbetter, advising that the accused had been arrested and attaching the “COU Watchhouse request- OP Strike Force BOLAR (NSW) (Sunday 20/2 Cairns)” which recorded that the purpose of the deployment was “Evidence gathering/intelligence gathering”. The request included a “Précis of Situation” which set out the facts alleged by NSW Police Strike Force Bolar and included the wish list of areas that NSW Police wanted QPS to pursue in the covert operation under the heading “Information or Intelligence Sought”. The email also attached the photograph taken by NSW Police on 8 February 2022 and an updated Charge Facts Sheet.
It is apparent from the 18 February email correspondence between NSW Police and QPS that it was anticipated that the accused would shortly be located and arrested in the Cairns area. It appears that QPS officers were actively zeroing in on the accused’s location using the accused’s banking activity. Meanwhile, officers of QPS Covert Operations Unit, based in Brisbane, had been notified of the deployment to the Cairns watch house over the weekend. Extradition of the accused to NSW was being arranged for the following Monday. DSC Hogan advised DS Weston, that for the purpose of the extradition to NSW, she would be flying to Cairns with DSC Briggs at 3.45pm the following day, Saturday 19 February 2022, and anticipated returning to NSW with the accused on Monday 21 February 2022 at 10.30am. She said that “hopefully he is arrested today”.

Arrest in Cairns

At 10.44am on 18 February 2022, QPS officers located and arrested the accused in Cairns.
The arrest was captured on BWV. The arresting officers informed the accused he was under arrest in relation to a warrant from NSW, and that he was being arrested for murder. The officers fully cautioned the accused and asked him if he had been drinking. He responded that he had. The officers told the accused that “you have been drinking [so] we are not going to talk to you at the moment … we need you to get sober.” The accused responded, “Not gonna talk to you anyway. I’ve got nothing to say.” There is no dispute that this amounted to the accused, upon arrest, exercising his right to silence. The accused was taken into custody.
DSC Fysh of QPS advised DSC Hogan of NSW Police of the arrest by email shortly thereafter. DSC Hogan asked how the accused was during the arrest. DSC Fysh sent an email in reply, “He is very drunk. Said he has been drinking for days. Said he had nothing to say.” At that point both NSW Police and QPS were aware, or ought to have been aware, that the accused had exercised his right to silence.
Shortly thereafter, a request was formally approved for the deployment of a UCO from the QPS Covert Operations Unit to the Cairns watch house. The UCO request form included the following features:-

The purpose of the deployment was recorded as “Evidence gathering/intelligence gathering”;

Under a section titled “Précis of situation”, the form set out a comprehensive history of the investigation by the NSW Police to that point;

Under a section titled “Information or Intelligence Sought”, the form set out the “wish list” of information items that had earlier been provided by the NSW Police to QPS;

Under the question “Is the suspect currently under the influence of drugs?”, the form was marked “No / known alcoholic”; and

Under the question “Has the suspect exercised their right to silence?”, the form was marked (incorrectly) “No”.

On Saturday 19 February 2022, the accused was taken to the Cairns Magistrates Court, where extradition to NSW was applied for and granted. The accused was then taken to the Cairns watch house and placed in the cells. On Saturday afternoon, two members of the Covert Operations Unit, a UCO and an associated “covert controller”, travelled from Brisbane to Cairns and received a briefing from DS Weston. DSC Hogan and DS Mackie from the NSW Police also arrived in Cairns from NSW that afternoon.

The covert operation in the Cairns watchhouse

On the morning of Sunday 20 February 2022, the UCO was placed in a cell with the accused at the Cairns watch house. By that time, the accused had been in custody alone for more than 36 hours. During his placement in the cell, the UCO actively engaged the accused in conversation. During the course of the conversation, the accused made a number of admissions. The UCO had a listening device on his person and the entirety of the UCO’s interaction with accused was recorded.
The 2.5-hour long recording was played in court before me. I observe that the tone of the UCO is at least as important as the words that are contained in the transcript. The UCO was a professional, highly trained in eliciting information from persons in custody. In this particular case, the person with whom the UCO was communicating was vulnerable, in the sense that he was itinerant, homeless and an alcoholic. That the UCO was overbearing, persuasive and cunning can be gleaned only from a careful listening of the conversation.
The UCO posed as a recently arrested New Zealand national. He was placed in the cell at 9.25am and introduced himself to the accused. He asked the accused how long he had been in the cells. The accused told him he had been there since Friday, and that he was shortly being extradited back to NSW for murder. The UCO said “Fucking hope these, these cunts aren’t fuckin stitching you up, hmmm … I fuckin don’t trust these cunts”. The accused responded “Yeah”.
What follows are merely some extracts from the conversation between the UCO and the accused. In my opinion, to understand the unfairness to the accused, one has to listen to the entirety of the recording, as the method cleverly employed by the UCO is such that he skips around topics, returning to one and then another and intersperses the conversation with banal and innocuous commentary and sometimes silence.
The UCO gave the accused an account of his own background. He told the accused that he had been arrested that morning during a police raid at the house at which he had been staying, but that he was now being held on an ambiguous historic assault charge. Shortly after that, the UCO asked the accused “did these cunts at least tell you what they got on you?” The accused responded “Nuh … [unintelligible] … they arrested me for murder, from New South Wales”. The accused then said “They reckon they got me…”. The UCO responded “Well, you’d think, hey, you would think they must have something”.
The conversation continued. The UCO and the accused had a general discussion about New Zealanders and the inequality between New Zealanders and Australians under the Australian welfare system, with the UCO telling the accused that he was unable to get Centrelink payments because he was from New Zealand. The UCO told the accused that he had left New Zealand because everything was expensive and said, “That’s why every cunt fucking thieves off everyone, just to get by, yeah, or you fucking drink or fucking smoke just to get fucking days go by, you know.” The accused replied, “That’s what I’ve been doing, drinking, smoking and thieving.” The UCO laughed and said, “You got to get by somehow, man, you got get by somehow”.
The conversation continued. The following exchange occurred, the accused referring to the part of the ERISP for which he was not cautioned:-

“UCO:   They interviewed you yet or they’re gunna wait till they get back down there?
Accused:   Nuh, they interviewed me once when I was down there.
UCO:   Oh yeah.
Accused:   And that’s when they said got my fingerprints and my fucking bike lock.
UCO:   Oh ---
Accused:   A chicken that I stole ---
UCO:   Your bike lock, what the fuck they take your bike lock for?
Accused:   I don’t know, fucking it must have fallen off my bike ….
(LAUGHTER)
UCO:   Oh, fuck, this, this we’ll take your bike lock … fucking hell.
Accused:   Yeah, they know it was me.
UCO:   They know it was you? Mmm.
Accused:   Yeah, can’t really get out of it.
UCO   So you’re fucked you reckon?
Accused:   Yep.”

The conversation continued. The accused told the UCO that he had originally travelled to Ballina to see an old friend, and the following exchange occurred:-

“Accused:    She just got fucking … moved into a new house.
UCO:      Oh ---
Accused:   Got a new job.
UCO:      Yeah.
Accused:   I was staying there until they come and got me, hey.
UCO:      Oh, you waiting for them down there?
Accused:   Yeah she in Ballina, she was spinning out.
UCO:      Does she know what happened?
Accused:   Nup yeah, I fucked up. What a mess.
UCO:      We all fucking make mistakes in life.
Accused:   Yeah.
UCO:      Some are small, some are big.
Accused:   Yeah (LAUGHTER) This is my biggest one.
UCO:      Oh, yeah.
Accused:   Be an old man when I get out this time.”

The conversation continued. The UCO told the accused he was travelling up the coast looking for work, and that he had been couch-surfing at friends’ houses before he was arrested during the raid of his friend’s house. The following exchange occurred:-

“Accused:   What’d they raid your mates place for?
UCO:      Drugs.
Accused:   Drugs.
UCO:      Hmmm
Accused:   …..
UCO:   Yeah, they got some, but, um, fuck all, yeah. Sort of smoked most of it, they only got some then I, I got fucking tangled up in that and I got dragged back her and then, I don’t know why I got dragged back here till these cunts told me, mmm. I’ll find out, I got a feeling I know what it is, fucking, I got a feeling its my fucking … I towelled up my daughter’s partner, ‘cause he gave her a slap, so I gave, but that was fucking nearly a year ago.
Accused:   Yeah.
UCO:   You know I fucking give him a good fucking hiding, mmm, fucking hit a woman.
Accused:   No way ….
UCO:      Especially my daughter.
Accused:   …..
UCO:      Especially my daughter, you don’t fucking hit a woman ---
Accused:   No.
UCO:      --- especially not my daughter.
Accused:   OK
UCO:      Oh, fucking, if you want to be a fucking man, let’s go cunt.”

The conversation continued, with general discussion of various topics. After a while, the UCO returned the conversation to the subject of the murder. The following exchange occurred:-

“UCO:      Do you know who dogged you out?
Accused:   Oh, yeah.
UCO:      Mmm.
Accused:   I reckon the fellow that I bashed his fucking, um told who it was meant, and he passed away two days later.
UCO:      Oh. He fucking told on you.
Accused:   Yeah.
UCO:      He told someone.
Accused:   He and, uh, yeah. Cause he didn’t die till 2 days later from his head injuries.
UCO:      Oh fuck. Like, that’s lethal.
…
UCO:      Head injuries.
Accused:   Yeah. So that’s probably from there got my fingerprints. And I stole a chook out for …
UCO:      Oh, no way.
Accused:   And I took it there and it’s got my fingerprints on the plate. And, yeah … ‘cause there’s other shit on there too and she fucking rat me out too
UCO:      OK.
Accused:   Yeah, I just fucked up ‘whoopta’
….
Accused:   It was a pretty bad bash.
UCO:      Yeah.
Accused:   When that … I thought, fuck.
UCO:      Mmm.
Accused:   Yeah …. Right after it happened … Just after that it would have been. He came up to me on the street and said do you know Steve, and I said Nuh he goes, Oh, are you sure you don’t know Steve not Steve I said “Nuh” He goes, well his missus said that you do
UCO:      Ok
Accused:   And, and, uh, yeah. Then he passed away two days later and then 6 detectives came and got me.
UCO:      Yeah. What did they fucking do to him there?
Accused:   I will get someone who knows about forensics and shit. So that’s, that’s, that’s a couple weeks ago, when all this happened.
UCO:      Oh, oh.
Accused:   Yeah.
UCO:      Mmm.
Accused:   Yeah. ‘Cause, like my jeans came back with blood on them
UCO:      Yeah. Please explain that.
Accused:   Yeah. Can’t explain that one.
(LAUGHTER)
Accused:   They’re not gunna charge me with murder unless you know, like the have solid fucking evidence.
UCO:   So it was the fucking chicken you stole. Made you, you became undone by the fucking chicken you stole.
Accused:   Yeah
UCO:      They saw you in the fucking supermarket.
Accused:   Yeah, partly.
(LAUGHTER)
UCO:      Fucking dobbed in by a chicken.
(LAUGHTER)”

The following exchange then occurred:-

“UCO:   Mmm. Cunt must have fallen over and hit his head or something. Why he’s all fucked up?
Accused:   Maybe it’s because I stuck a fork in his head.
UCO:      What the fuck?
Accused:   That’s what I meant, sicko schizzed out, I don’t know why I did it
UCO:   You? Yeah. Well, you don’t have to talk about it if you don’t want to, but ---
Accused:   OK.
UCO:      Yeah.
Accused:   Nah it’s alright.
UCO:      I don’t mean to impose on you and stuff.
Accused:   No, it’s all good.
UCO:   A fork in the head would hurt. (LAUGHTER) Did you go for the temple on the fucking side?
Accused:   Yeah. Yeah, I beat the shit out of him, then I stabbed him. Like I was trying to kill him or something.
UCO:      Yeah
Accused:   Don’t even … was not my intention at the time … I don’t know.”

Shortly after that, the following exchange occurred:-

“UCO:      … Did you know the bloke that you fucking knocked over.
Accused:   No I only just met him.
UCO:      Oh. Just on the piss with him or ---
Accused:   No when I was with the sheila went around there. It was pissing down raining. She knew him …
UCO:      Oh.
Accused:   Um yeah. Apparently he’s a real fucking dog-end.
UCO:      Mmm.
Accused:   Talking about it … said something to set me off and on him.
UCO:      Yeah.
Accused:   … he’s just fucking said something to set me off.”

At 10.31am the UCO was removed from the cell. The UCO had a debriefing with his covert controller for approximately 20 minutes. I infer that NSW Police were present during this debriefing. At 10.54pm the UCO was returned to the cell with the accused.

The following exchange then occurred:-

“UCO:      Mmm, yeah. I’m still trying to picture your fork.
Accused:   I still picture it in my head when I left, sticking out the side of his head.
UCO:      Yeah, just fucking stuck it and … forked him up.
Accused:   Ohh bloody hell
(LAUGHTER)
UCO:      Was it the fucking only thing you could find was a fork?
Accused:   …. I beat the shit out of him.
UCO:      Yeah. Oh, you did the fork after?
Accused:   Yeah (LAUGHTER) No ---
UCO:      Kicked the shit out of him and then what, go to the kitchen?
Accused:   I didn’t realise there a fork in the bedroom and ---
UCO:      Did he put up a fight?
Accused:   For him.
UCO:   Hmmm (LAUGHTER) Just … to the side of the head. Fuck, it must’ve been all right then, cause there only bone in there hey?
Accused:   A little bit soft there.”

The conversation continued:-

“UCO:      I’m surprised your fork didn’t kill that cunt.
Accused:   Yeah.
UCO:      You said, didn’t you say he was there for two days?
Accused:   It took two days.
UCO:      Ah …
Accused:   I didn’t think I stabbed him too hard, but hard enough for it to be sticking out … you know what I mean, so … did that.
UCO:      Yeah, fucking hell. The fuck was that chick during all that?
Accused:   Just squealing.
(LAUGHTER)
UCO:      And you … I see nothing, I see nothing. Fucking hell.
Accused:   I knew that fucking dog knew it was me straight from the start.
UCO:      Hey?
Accused:   I knew those dogs knew it was me straight from the start
UCO:   I suppose when the take all your clothes and, and your, how long’d it take them to stop you the first time? Pick you up?
Accused:   Uh, I, that day or that night.
UCO:      Oh ---
Accused:   Yeah, that night or in the next morning, after that.
UCO:      Yeah.
Accused:   They come and say do you know him and I said Ive never been there.
UCO:      I’ve got a chicken that says you were there.
Accused:   Fucking hell. (LAUGHTER) so that got me lying
UCO:   Mmm. They probably would’ve spoken to that sheila too before that too, hey?
Accused:   Yeah.
UCO:   Yeah, not ---
Accused:    Yeah, got a statement from her and forensics would have come back.
UCO:   Then whoever the bloke was you said he spoke to him before he fucking ---
Accused:   Yeah.
UCO:   ---done that, so yeah, bro, it was fucking never looking good. Mmm, fuck.
Accused:   Yeah, I was fucked from the start. Should’ve died straight away, he might be …”

After some more general discussion, the following exchange occurred:-

“UCO:   Oh, didn’t you say they found your bike lock there or something?
Accused:   Yeah, my bike lock.
UCO:   I don’t know why they took that unless you fucking wrapped that around his head.
Accused:   No, nuh, fuck … didn’t even think, didn’t even care.
UCO:   Yeah, just got into that rage, hey?
Accused:   Yeah.
UCO:   What’s done is done, can’t change it.
Accused:   That’s right.
UCO:    Don’t change it.
Accused:   Yeah, so I don’t think they’d even drop it to manslaughter would they, with the fucking fork in there. Uh, yeah ---
UCO:    Uh ---
Accused:   --- couple days later, that’s not really murder so ---
UCO:    No
Accused:   ---must … manslaughter.
UCO:    You’ll …. Cause you had the, you had the opportunity to fucking finish it
Accused:   Yeah
UCO:    You know?
Accused:   Yeah … yeah, straight up murder, killed someone
UCO:    The fork’s not a good look, but ---
Accused:   No.
UCO:    ---you know, you could’ve, I suppose you could’ve finished the job and ---
Accused:   Yeah.
UCO:    ---and then like, but, yeah. You would think so.
Accused:   Mmm.
UCO:   Fucking just get a good lawyer and give that a shot.
Accused:   Yeah, they’d fucking sell me.
UCO:   I suppose a lot of it would depend on what that girl said too, that chick, ‘cause you might have been saying things you don’t realis eyou said and she might be sitting there going, Fuck, he said this, he said that ---
Accused:   Yeah.
UCO:   --- “I’ll kill you you cunt”
Accused:   Mmm.
UCO:   You know, but if she’s saying, yeah, if she says that you’re saying, Stop headbutting my boot, stop head butting my boot (LAUGHTER) it’ll look good for you.
Accused:   I don’t think any of it’s going to look too good for me.”

The conversation continued with a general discussion of various other benign topics. After a period of time, the cell door opened, and DSC Hogan and DS Mackie of NSW Police can be heard on the audio recording. The detectives greeted the accused and told him that they had “only just turned up”. This was untrue, as they had arrived the day before. They told him that they were planning to fly back to NSW the following day. The accused asked the detectives if they could contact his friend and let her know that he had been locked up. The detectives agreed to try and do so. They then informed the accused that they had a few things to sort out and that they would then come back. The cell door can then be heard closing.
Following that visit, the UCO asked the accused if DSC Hogan was one of the officers who had spoken to him previously, and whether it was “those two that took your clothes too?”
After more conversation between the two men, the NSW detectives came back to the cell. This was at a time when they knew that he had exercised his right to silence, and I infer, that they knew that he had made admissions to the UCO. The cell door opened, and the following exchange occurred:-

“DSC Hogan:   … Um, we’re all right to go now. So what we’d like to do, Rodney, is offer you the opportunity to the interview. Um, so you understand why you’re here?
Accused:   Yeah.
DSC Hogan:   Yeah. So you understand that you were arrested for, uh, a warrant ---
Accused:   Yeah.
DSC Hogan:   --- for the murder of Stephen Ponton ---
(SHIFTING AND THUDDING)
DSC Hogan:   --- on Saturday the 5^th of February 2022, um, at Ballina.
Accused:   Yeah.
DSC Hogan:   You understand that?
Accused:   Yeah.
DSC Hogan:   All right. So you don’t have to say or do anything unless you want to.
Accused:   No…
DSC Hogan:   But whatever you do say will be recorded and can later be used in evidence. Do you understand that?
Accused:   Yeah.
DSC Hogan:   All right, so what we’d like to do is go to an interview room and give you the opportunity to talk to us about that allegation.
Accused:   No …
DSC Hogan:   All right. Um ---
DS Mackie:   You don’t want to come with us and tell your side of the story?
Accused:   No.
DS Mackie:   You don’t want to answer any questions about it?
Accused:   No, nothing.
DS Mackie:   Ok.
DSC Hogan:   Ok. All good.
DS Mackie:   It’s up to, that’s your ---
Accused:   Yeah.
DS Mackie:   --- your right to do that if you want to, mate.
Accused:   Yeah.”

The officers then explained to the accused that they had a flight booked for the following day, that they would pick him up in the morning and that he would come with them back down to NSW. They then asked him one final time:-

“DSC Hogan:   … Ok. All right. Um, so you definitely don’t want to come and talk to us about those allegations?
Accused:   No.
DSC Hogan:   No. All right. No worries. Well, um, we’ll leave it, leave you with it then.
Accused:   All right.”

The detectives left. The UCO and the accused discussed the detectives’ repeated attempts to interview the accused without a lawyer present. It is abundantly clear that the accused would not have agreed to be interviewed by police.
A short time later, the following exchange occurred:-

“UCO:   You had anyone else in here or you been in there by yourself since Friday?
Accused:   Been by myself.
UCO:   Oh fuck. No cunt to talk to. Nothing.
Accused:   I just wanted to fucking speak with somebody.
UCO:   Yeah.”

A few moments after that, the UCO was removed from the cell and the recording concluded.
On 25 February 2022, DSC Hogan emailed QPS thanking them for their help and expressing a hope that the admissions “get us over the line for a plea.”

The parties’ submissions

The accused

Counsel for the accused identified the unfairness of admitting the recording obtained during the covert operation as involving, in essence, two interrelated threads:-

First, given that the content of the accused’s answers to the UCO on 20 February 2022 were significantly shaped by what had earlier occurred in the ERISP on the 8 February 2022, the recording was infected by an earlier unfairness which had been visited upon the accused during that ERISP; and

Second, the covert operation was the functional equivalent of an interrogation, orchestrated by NSW Police and designed to circumvent the accused’s exercise of his right to silence.

The first dimension of the alleged unfairness is that the recorded conversation is said to be contaminated by earlier unfairness arising from the conduct of NSW Police during the ERISP. In the accused’s submission, NSW Police arrested and interviewed the accused on 8 February 2022 under the guise of an investigation into the larceny of a chicken, and they failed to caution him that he was also a suspect for murder (when, by that stage, he clearly was). The NSW Police obtained information and admissions from the accused relevant to the assault of the deceased, in circumstances where the accused had unfairly been deprived of the requirement for the caution. During the ERISP, the officers revealed the extent of the evidence incriminating the accused in the assault of the deceased, including the fact that his fingerprints and bike lock had been found at the unit. The accused was led to believe that CCTV footage showed him stealing the chicken which had been found at the crime scene, when in fact the footage only shows him moving through the store and does not show him picking up a chicken at all (and in fact shows him leaving the store after paying for something). The accused apparently had no independent recollection of stealing the chicken, but he accepted it to be true on the basis that could not remember anything because he he had been drunk at the time and there was CCTV footage of him doing so.
The accused says that this background tainted the later conversation with the UCO during the covert operation. Not only were the police able to identify certain lines of inquiry based upon the information obtained from the accused during the ERISP, but in the accused’s submission, the admissions to the UCO by the accused were also substantially based on the information in turn provided by police during the ERISP. The accused’s submission is that, during the conversation with the UCO, the accused was largely just repeating the case against him, as it had been explained to him earlier on 8 February 2022. According to the accused, the majority of the admissions to the UCO should be understood as simply the accused conceding that the police had a lot of evidence that he assaulted the deceased, rather than admissions by the accused, based on his independent recollection, that he in fact assaulted the deceased.
Turning to the second dimension of the alleged unfairness, the accused says the covert operation served as the functional equivalent of an interrogation. The accused submits that it would be artificial to say that the accused’s decision to speak to the UCO was truly voluntary because that would ignore the reality that the accused was locked inside a cell with a person who initiated and directed the conversation, and the accused was unable to walk away. The accused points then to what is said to be a consistent pattern of direct questioning by the UCO regarding the assault of the deceased and it is submitted that this has the same practical effect as a police interview. The accused submits that the UCO clearly pursued lines of inquiry based on the “wish list” provided by NSW Police, and that the UCO repeatedly returned to those identified subject areas throughout the course of the conversation. The accused submits that I would find that the UCO elicited the admissions in a far more detailed and extensive way than the undercover officer in R v Swaffield & Pavic (1998) 192 CLR 159; [1998] HCA 1 (“Swaffield”). This aspect dovetails with the earlier strand of unfairness identified by the accused, in the sense that the lines of inquiry being pursued by the UCO in this “functional interrogation” originated in large part from the earlier ERISP, which the accused also says was unfair.
The accused says that it can be readily inferred from the evidence that the NSW Police were the driving force behind the covert operation in Cairns. The correspondence between NSW Police and QPS shows that the covert operation was conducted at the request of NSW Police, in conformity with the briefing provided by them to the QPS officers, and for the stated purpose of obtaining the information set out in their “wish list” email. The covert operation can therefore be understood as forming part of a continuing course of conduct.
Further, in the accused’s submission, the covert operation was deliberately contrived to circumvent the exercise of the right to silence by the accused. The accused contends that it would have been abundantly clear, when the covert operation was originally being contemplated prior to the accused’s arrest in Cairns, that the accused had already exercised his right to silence in response to questions from NSW Police about the murder and that he would do so again when he was arrested in Queensland. The accused says that this is why the request from NSW Police to QPS was not only for assistance with the arrest and extradition of the accused, but also for the implementation of the covert operation involving the placement of a UCO in a cell with the accused at the watch house, which was an additional exercise for the purpose of obtaining further evidence from the accused by way of admissions despite his repeated attempts to exercise his right to silence. The covert operation proceeded as planned even after the accused indicated immediately upon his arrest that, as expected, he would not answer any questions from the police, a fact that was immediately relayed to NSW Police. In the accused’s submission, the police knew that the accused had exercised his right to silence, but they went ahead with what amounted to the functional equivalent of a police interrogation regardless.
Assuming that unfairness is established, counsel for the accused submitted that the recording is not capable of being dissected into severable parts, such that only certain answers could be excised while the remainder is preserved. This is said to be in view of the need to account for the totality of the interaction, and the manner and tone of the UCO in eliciting the admissions from the accused. In the accused’s submission, it is necessary to situate each of the accused’s answers to the UCO within the broader conversational context, in order to properly understand the extent to which specific admissions may have been prompted by the subtle direction or influence of the UCO more generally over the course of the conversation.

The Crown

Against this, the Crown submits that the accused’s interaction with the UCO was more of a conversation than an interrogation, and that many of the admissions were simply voluntary confessions to a stranger from a man burdened by the weight of his own guilt.
In resisting the characterisation of a “functional interrogation”, the Crown points to the fact that, although the UCO is talkative or “chatty”, he is also capable of being “shut down”. The Crown points out that the UCO was happy to discuss his own circumstances at length, and that he was also sensitive enough to back off from a topic of conversation when he felt like he might have “imposed” on the accused.
The conversational as opposed to interrogational nature of the dialogue is also demonstrated, the Crown submits, by the fact that the two men could comfortably sit in silence for extended periods; by the fact that they were able to talk at length about other things beside the assault; and by the fact that, according to the Crown, the accused was able to “turn his back” on direct questions when he chose to. Thus, while the Crown accepts, in circumstances where an accused has been arrested and has exercised their right to silence, that “you need to be much closer to conversation and away from interrogation”, the Crown nevertheless says that the UCO’s conduct is compliant with that (somewhat nebulous) standard, and that designating the conversation with the UCO as a “functional interrogation” is inapposite.
In the alternative, the Crown says that even if certain parts of the conversation are deemed impermissibly unfair, there are parts which are capable of being severed from the more innocuous part of the discussion. The Crown contends that many of the admissions to the UCO should be treated as voluntary in nature, in that they were really the result of a compulsive need by the accused to admit to his wrongdoing. The Crown says this confessional impulse can be inferred from various statements by the accused including, for example, when the accused divulges to the UCO that he “has been going downhill for a long time”, and at the conclusion of his conversation with the UCO where, after two days in a cell by himself, the accused says that he “just wanted to fucking speak to somebody”. The Crown also points to the fact that the accused made earlier admissions to the two civilians, Mr Shepherd and Mr Ellis, in substantially the same terms. This is said to reinforce the voluntary nature of the admissions to the UCO, in that it is demonstrative of a pattern of confessing to the assault of the deceased to random strangers.
Accordingly, the Crown submits that a distinction can and should be drawn between, on one hand, admissions which may perhaps have been elicited by the more direct questioning by the UCO, and those which were voluntary in nature and referable to the accused’s need to confess. The Crown says that the former could be excised, and the latter preserved.
Finally, as another alternative course, the Crown suggests that a logical juncture also exists at the point at which the UCO is removed from the cell for a debrief with the covert controller. Without expressly abandoning the second half of the recording, the Crown acknowledged that the frequency and direction of the questioning “stepped up” from that point and that the argument for admission of that part of the recording was not as strong. It was said that if what occurred once the UCO was returned to the cell was considered to cross over into functional interrogation but the Court was otherwise satisfied that the balance of the first half was not unfair, the removal of the UCO from the cell at 10.31am would be a logically coherent point to sever the recording in order to prevent unfairness.

Determination

At the outset I note that the recording of the accused and the UCO was performed without a warrant. There is no dispute in this case that the recording was legal, and that it was prima facie admissible in New South Wales proceedings, notwithstanding the fact that such a recording could only have taken place legally in New South Wales if a warrant was issued pursuant to the provisions of the Surveillance Devices Act 2007 (NSW) or its Queensland equivalent: see R v Workman [2004] NSWCCA 213. The accused does not take issue with the legality of the recording. I observe that if an application had been made to the Supreme Court for a surveillance device warrant, bearing in mind that the accused had been arrested and exercised his right to silence, it may have well been granted with a condition that the UCO not engage in any conduct directed to eliciting admissions or infringing the accused’s right to silence. This, however, is not relevant for the purpose of my determination under s 90.
The applicable test under s 90 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.
Section 90 is a safety net provision: see Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 (“Em (HC)”) per Gummow and Hayne JJ at 101-105 [96]-[97], [109]-[112]. It is to be considered only after it has been established that the other sections of the Act dealing with admissions do not apply, and that considerations of reliability are irrelevant. That is common ground in this case.

The burden of demonstrating that it would be unfair to the accused to use the evidence rests on the defence: Em (HC) at [63] per Gleeson CJ and Heydon J. Facts sought to be proved fall on the balance of probabilities: s 142(1) of the Act. If the Court finds that it would be unfair to the accused to permit the Crown to use the evidence of the admissions, that does not necessarily lead to their exclusion. That finding enlivens the discretion of the Court, which may then refuse to admit the evidence of the admissions.
The discretion to exclude in s 90 is very broad and fact-specific. In Em (HC), Gleeson CJ and Heydon J said 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.”

Gummow and Hayne JJ said at 103 [107]:-

“…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’.

Both Ms Oliver and Mr Watts rely on Swaffield, which they agree is the High Court authority pertinent to the issues that I must decide. The parties’ submissions focused upon Swaffield as informing the test to be applied under s 90 in this case. Although Swaffield was a case concerned with the common law discretion to exclude admissions, the judgments of the majority and Kirby J made clear that the principles in the common law discretion to exclude for unfairness are reflected in s 90 of the Act (at [69]-[70] and [130]-[131] (respectively)). This continues to be the case: see for example Sidaros v The Queen [2020] ACTCA 11 at [52]-[55].
It is necessary, therefore, to set out at some length the discussion by the High Court of what constitutes “unfairness” in Swaffield. Toohey, Gaudron and Gummow JJ, comprising the majority, said at [53]-[56]:-

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

[54] 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. And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred.
[55] The appeal relating to Swaffield involved the Judges' Rules in Queensland. Their precise status is still a matter for debate but it is apparent that they are regarded as a yardstick against which issues of unfairness (and impropriety) may be measured.
[56] It will be necessary to return to the unfairness discretion and to the Judges' Rules but, before doing so, it is helpful to say something more about the policy discretion and, also, about the power or discretion to exclude evidence which is more prejudicial than probative.”
(footnotes omitted)

It is clear from Swaffield, and the cases which follow it, that the unfairness referred to in s 90 is unfairness in the use of the evidence against the accused at trial. The question is not whether police or other individuals acted unfairly in obtaining the evidence, although that is a consideration in the determination under s 90. Another consideration, relevantly (but not determinatively) in the circumstances of this case, is whether an admission would have been made had the police investigation been properly conducted.
The majority in Swaffield continued to discuss the obscurity of the concept of unfairness at [66]-[68]:-

“[66] It has been said, rightly, that fairness is a vague concept. It has also been said that the application of the unfairness discretion is uncertain because courts have failed to define the policy behind the discretion or considerations relevant to it. This, it is argued, makes satisfactory appellate review of the discretion difficult. The criticism has force though the very nature of the concept inhibits great precision. An approach to unfairness which focuses on whether reception of the evidence in question may have jeopardised the accused's right to a fair trial because the statement was obtained in circumstances affecting its reliability does admit of application by a trial judge and review on appeal. However, the unfairness discretion would achieve nothing beyond what is already required by the general law if it were concerned solely to ensure a fair trial.
[67] The concept of unfairness has been expressed in the widest possible form in the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). Section 90 of both Acts reads:
‘In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.’

[68] Neither in s 90 nor anywhere else in either Act is there to be found a definition of unfairness. Part 3.11 — “Discretions to Exclude Evidence” contains a number of provisions of a general nature empowering the court to refuse to admit evidence or to limit its use. …”

However, their Honours specifically addressed the concept of unfairness with respect to secretly recorded conversations (as is the case here) at [83]-[92]:-

“[83] The Canadian authorities are instructive in this regard though it is necessary to keep in mind the existence of the Canadian Charter of Rights and Freedoms and to identify the extent to which any authority turns on the language of the Charter.
[84] In R v Hebert the Crown relied at trial upon statements made by the accused after he had consulted with counsel and had indicated that he did not wish to make a statement. He was then placed in a cell with an undercover police officer to whom he made statements implicating himself in the robbery with which he had been charged. The Supreme Court of Canada unanimously, though in more than one judgment, held that the statements should have been excluded.
[85] McLachlin J delivered a judgment with which Dickson CJ, Lamer, La Forest, L'Heureux-Dubé, Gonthier and Cory JJ concurred. Her Ladyship observed that the principles of fundamental justice are to be found in the basic tenets of the legal system though a fundamental principle of justice expressed in the Charter may be broader and more general than the particular rules which exemplify it. McLachlin J then said:
‘The common law rules related to the right to silence suggest that the scope of the right in the pre-trial detention period must be based on the fundamental concept of the suspect's right to choose whether to speak to the authorities or remain silent.’

After some reference to the Charter, McLachlin J continued:
‘Even before the Charter, this Court had taken a step away from the traditional ‘threat-promise’ formula by recognising that the decision to speak to the police must be the product of an operating mind.
…
The idea that judges can reject confessions on grounds of unfairness and concerns for the repute and integrity of the judicial process has long been accepted in other democratic countries without apparent adverse consequences … The jurisprudence on the rights of detained persons can only benefit, in my view, from rejection of the narrow confessions formula and adoption of a rule which permits consideration of the accused's informed choice, as well as fairness to the accused and the repute of the administration of justice.’

[86] Dealing with the use of undercover agents, McLachlin J drew a distinction between observing a suspect and actively eliciting information in violation of the suspect's choice to remain silent. She said:
‘When the police use subterfuge to interrogate an accused after he has advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect's constitutional right to silence: the suspect's rights are breached because he has been deprived of his choice. However, in the absence of eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police.’

[87] In R v Broyles the Supreme Court of Canada was constituted by La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ. The judgment of the Court was delivered by Iacobucci J. The accused was charged with murder; the evidence against him was largely circumstantial but it included a statement which the accused made to a friend after his arrest and after he had been cautioned that he was not required to say anything. The friend visited the accused in prison at the request of the police. The friend wore a recording device. The friend questioned the accused about the killing of the deceased.
[88] The evidence of the statements made to the friend was excluded pursuant to a provision of the Charter. The Court identified two questions which were necessary for decision but which did not have to be answered in Hebert. The first was whether the friend was an agent of the State. The second was whether the accused's statement had been elicited by the friend. The Court held that the friend was an agent of the State during the conversation. The meeting was set up and facilitated by the police and, without the intervention of the authorities, there would have been no conversation. The Court held further that the statement had been elicited because parts of the conversation were in the nature of an interrogation, not just parts of a conversation which flowed naturally. It concluded that the admission of the evidence would render the trial unfair.
[89] The Australian decisions generally have not expressed the relevant principles by reference to the informed choice spoken of in Canadian cases. At least in terms of voluntariness, they have tended to approach the matter in terms of an immunity from compulsion. The emphasis has been on whether duress has been brought to bear on the suspect, that is whether the will has been overborne in some way. That emphasis is well placed when voluntariness is at issue but it is too narrow when the exercise of discretion is involved.
[90] In Environment Protection Authority v Caltex Refining Co Pty Ltd Deane, Dawson and Gaudron JJ referred to Pyneboard Pty Ltd v Trade Practices Commission where Mason ACJ, Wilson and Dawson JJ observed that it is not easy to assert confidently that the privilege against self-incrimination serves one particular policy or purpose. Deane, Dawson and Gaudron JJ then commented:
‘It is generally recognised that it emerged as a reaction against procedures of the Courts of Star Chamber and High Commission, and in particular their use of the ex officio, or inquisitorial, oath. This was compulsorily administered so that a person might be examined and himself provide the accusation to be made against him.’

Against this historical background, it can be seen why the courts have spoken in terms of compulsion to speak.
[91] However, the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations.
[92] It is relevant to bear in mind the provisions of the Evidence Acts. Although, in general, the Commonwealth Act applies only in the external Territories and in proceedings in federal courts and courts of the Australian Capital Territory (ss 4, 5, 6), it has been substantially re-enacted in New South Wales. It may well be re-enacted in other States. It may be thought undesirable to have two streams, as it were, one legislative and the other judicial, the latter simply echoing the former or perhaps deviating from it. On the other hand there is no comparable legislative provision in Queensland and Victoria, the two States with which the Court is presently concerned. It is therefore appropriate to develop the common law in Australia in terms of a broad principle based on the right to choose whether or not to speak.”

Thus their Honours emphasised the broad nature of the fairness discretion which is now contained within s 90. For the discretion to be enlivened, it is not necessary that the accused make admissions out of any sort of compulsion. Their Honours further indicated that it is not necessary for there to be any unfairness in the means by which an admission is elicited. It may instead be the case that prevailing community standards make it unacceptable to admit the evidence. The majority in Swaffield, however, shifted the focus in the circumstances of the secretly recorded conversation in that case toward the freedom of the accused to choose whether or not to speak to the police and the abrogation of the accused’s right to silence.
The majority concluded at [97]-[98]:-

“[97] What if a test is applied by reference to Swaffield's right to choose whether or not to speak to the police? The application of such a test turns, at least so far as the Canadian authorities are concerned, on the extent to which any admission was elicited. It is clear from Hebert that the Canadian Supreme Court regards the use of a subterfuge to obtain a statement as likely to be in violation of the choice whether or not to speak but even then would treat a quite unelicited admission as not calling for the exercise of the discretion to exclude.
[98] In the circumstances of this case, the admissions were elicited by an undercover police officer, in clear breach of Swaffield's right to choose whether or not to speak. The Court of Appeal was right in its conclusion and this appeal should be dismissed.”

Kirby J delivered separate reasons but reached the same conclusion, stating at [165]:-

“The Swaffield Case: I can deal more briefly with Mr Swaffield's case because I agree in the conclusions reached by the other members of the Court. The fact that the conversations were with an undercover police officer is not alone decisive. It is necessary to consider the way in which the conversations proceeded. Having examined the transcripts, I have concluded that Constable Marshall did not speak to the accused as an acquaintance might have done, neutrally or indifferently. Instead, by his questions, he actively sought to elicit critical information — such that the exchange is properly to be characterised as akin to a police interrogation. Such an interrogation by an undercover police officer unfairly derogated from Mr Swaffield's free choice to speak or be silent. The resulting confessional statements ought therefore to have been excluded in the exercise of the residual discretion.”

The question of elicitation was addressed by Iacobucci J in R v Broyles [1991] 3 SCR 595 (“Broyles”), approved and adopted in Swaffield and Pavitt v The Queen (2007) 169 A Crim R 452; [2007] NSWCCA 88 (“Pavitt”) (to which see below), at [37]-[40]:-

“[37] In my view, it is difficult to give a short and precise meaning of elicitation but rather one should look to a series of factors to decide the issue. These factors test the relationship between the state agent and the accused so as to answer this question: considering all the circumstances of the exchange between the accused and the state agent, is there a causal link between the conduct of the state agent and the making of the statement by the accused? For convenience, I arrange these factors into two groups. This list of factors is not exhaustive, nor will the answer to any one question necessarily be dispositive.
[38] The first set of factors concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.
[39] The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?
[40] In considering whether the statement in question was elicited, evidence of the instructions given to the state agent for the conduct of the conversation may be important.”

The parties drew my attention to Wood CJ at CL’s judgment in R v Mallah (2005) A Crim R 150; [2005] NSWSC 358 (“Mallah”). In particular, I note at [112]-[114] his Honour stated:-

“[112] The unfairness with which this section is concerned relates to the accused's right to a fair trial. As the majority observed in Swaffield (at [66]-[68]), the fairness concept is somewhat vague, and remains undefined in the Evidence Act. It does call for a value judgment.
[113] In circumstances where the accused appears to have formulated his plan before speaking to the undercover operative, and to have sounded out others with a view to its implementation, without the slightest encouragement from police, I am of the view that the balance which is required, by way of a value judgment as to the conduct of the police, and its effect on the accused, falls on the side of admission of the evidence. Among other considerations, the objective of the police was not simply to gather evidence about offences already committed. An important additional objective, if not the primary objective, was to obtain information concerning any plan, or plans, which the accused had for ongoing or future offences, and to nip them in the bud. Had the conduct of the undercover officer been such as to encourage, or to lead the accused to engage in a course of conduct on which he had not already embarked, or had the conversation been essentially fashioned by the officer so as to commit him to that course, then that degree of unfairness in the use of the evidence at trial, which would justify a discretionary exclusion, might well have been made out.

[114] The difference in the position of an accused who is involved in conversations in the course of the commission of a crime, and that of an accused post arrest, while not conclusive, also has, in my view, some significance. A particular concern exists in relation to post arrest trickery or subterfuge that is designed to derogate from the fundamental right of silence, and from the privilege against self-incrimination. Somewhat different considerations apply, in my view, in relation to covert investigations occurring before arrest, and which are an almost inevitable feature of the kind of controlled operations which are now permitted by statute, in response to the decision in Ridgeway v The Queen (1995) 184 CLR 19; 78 A Crim R 307.”
(emphasis added)

This case can be distinguished in at least one clear and important respect from Mallah, that is, that the undercover officer (posing as a journalist) in Mallah was involved in conversations with the accused in the course of the commission of a crime rather than post-arrest. The conversations were covertly recorded after the accused had been charged with some firearm offences and refused to be interviewed by police (later pleading guilty to those offences), but while he was allegedly committing other offences for which he was then being tried. The undercover officer in Mallah did not “encourage, or … lead the accused to engage in a course of conduct on which he had not already embarked” and the conversation was not “essentially fashioned by the officer so as to commit him to that course”. The circumstances are different where, as is the case here, the undercover officer engages in post-arrest trickery and actively elicits admissions from the accused in derogation of his right to silence. Likewise in Mallah, Wood CJ at CL distinguished that case from Swaffield, the circumstances of which bear much closer resemblance to those of this case.
Upon review of the authorities in Pavitt, McColl JA and Latham J extracted, inter alia, the following propositions:-

Absent eliciting behaviour by the police, there is no violation of the accused’s right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police (citing Hebert); and

Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement. Evidence of the instructions given to the state agent for the conduct of the conversation may also be important (citing Broyles).

The parties agree that Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 has little work to do in these proceedings as it is factually distinguishable from the instant circumstances. In that case, the admissions obtained by police were in the investigative stage and the accused, despite not wishing to be recorded, was aware that he was speaking to police.
Indeed, the issues have been narrowed – commendably so by counsel – to one single issue: whether or not, in all of the circumstances, the conversation between the accused and the UCO in the Cairns watch house on 20 February 2022 was the functional equivalent of an interrogation: see Swaffield at [154] per Kirby J citing Broyles at 611. If it was (or parts of it were), the parties agree that it ought to be excluded pursuant to s 90 of the Act (subject to the issue of severance of portions of the conversation).
The unfairness in this case involves several dimensions which are interrelated. Although the conduct of the police ultimately culminated in the secretly recorded conversation on 20 February 2022 the subject of dispute, the unfairness of the use of admissions made in that conversation is informed by the circumstances leading up to it, including the conduct of police in obtaining information used to elicit admissions on 20 February 2022. For that reason, it is necessary to highlight certain aspects of the police investigation (which is set out in full earlier in this judgment) prior to the accused’s arrest in Cairns.
On 7 February 2022 when the accused remained in NSW, the accused was asked questions pertaining to the murder investigation without being issued any caution and had his bag and person searched, ostensibly for no reason. That questioning took place on a public footpath after the accused was found lying on the ground, intoxicated.
On 8 February 2022, the accused was arrested for larceny of the chicken. He was given a caution in relation to the larceny, but not the murder, despite the accused being a suspect in the murder investigation at that time. He was observed to have been affected by alcohol on arrival at the police station. The detectives interviewed him for approximately 35 minutes without break, despite the accused almost immediately exercising his right to silence. He was asked questions which were entirely irrelevant to the larceny. During that interview, the accused attempted to exercise his right to silence on at least six occasions but the detectives continued to question him, notwithstanding his protestations. The failure to caution the accused in relation to the murder was improper and unfair to him.
A partial caution was given toward the end of the interview and it was indicated to the accused that the deceased had died. The accused almost immediately exercised his right to silence and I infer that, by the end of that interview, NSW Police knew that the accused would exercise his right to silence if they attempted to question him on a subsequent occasion.
On 9 February 2022, after having claimed that he knew nothing about the larceny (due to loss of memory and/or alcohol use), the accused pleaded guilty to that charge on the basis of a Facts Sheet which contained statements that were not true (that he was sighted to select a hot chook, lemon myrtle brand in the display warmer, and that he did not attempt to pay for the item).
Between 16 February and 18 February 2022, NSW Police liaised with QPS to set up a covert strategy, using information obtained from the improper and unfair questioning of the accused in NSW, to obtain evidence of admissions from the accused.
The accused was arrested on the charge of murder on 18 February 2022 and was given a full caution. He immediately exercised his right to silence, and a request was then formally approved for deployment of the UCO. That request incorrectly indicated that the accused had not exercised his right to silence, and included information obtained from earlier improper and unfair questioning.
Turning to the conversation between the accused and the UCO on 20 February 2022, and looking at Broyles and Pavitt, in this case it is not in dispute that the UCO was an agent of the state. This, however, was not part of a flowing conversation between equals as suggested by the Crown. Rather it was a carefully executed plan of subterfuge executed by the UCO in an effort to take advantage of a vulnerable man with the stated aim of eliciting admissions. So much is clear from the documents produced on subpoena by NSW Police and QPS. Looking at the conversation in its entirety, it was a carefully crafted probing of the accused which on occasion amounted to an exemplary cross-examination. The Crown commented, without conceding, that the last hour of the recorded conversation (after the break) was of this ilk. In my opinion, the entirety of the conversation can be so characterised.
Furthermore, as was submitted by Mr Watts, the UCO exploited the accused’s vulnerability not only as a homeless alcoholic, but as someone who had been left alone in a cell for longer than a day. I observe that the conversation took place over 2.5 hours, which is a long time. It would be surprising that any person in the circumstances in which the accused found himself would not have succumbed to the dextrous and shrewd charms of the UCO. Indeed, looking at the conversation as a whole, it is difficult not to come to the conclusion that the UCO craftily manipulated the accused so that he felt comfortable making the confessional statements upon which the Crown relies. Mr Watts pointed to the UCO, for example, purporting to promote an “honour among thieves” narrative to the accused so that he would be lured into saying things he would not otherwise have said – by building trust – all of this when the accused had expressly exercised his right to silence. The “wish list” and the precis of information, some of which was obtained unfairly in the ERISP of 8 February 2022, is woven through the entirety of the conversation. In my view, it is not possible to disentangle parts of the conversation from others because of the craft employed by the UCO. In the end, I cannot but conclude, in all of the circumstances relied upon, that the conversation covertly recorded was the functional equivalent of an interrogation. This interrogation unfairly derogated from the accused’s free choice to speak or to be silent, a choice of which the UCO was no doubt aware. In my opinion, it would be unfair to the accused to permit the Crown to rely on the entirety of the recorded conversation at his trial.

Conclusion

For the reasons set out above, I make the following order:-

The covertly recorded conversation between the accused and the undercover operative of the Queensland Police Service with the assumed name of Hemi Perata whilst the accused was in custody after his arrest for murder at Cairns watch house on 20 February 2022 is excluded pursuant to s 90 of the Evidence Act 1995 (NSW).

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Amendments

01 May 2025 - Unredacted catchwords upon publication.

Decision last updated: 02 May 2025

Medium Neutral Citation:	R v Rose [2024] NSWSC 1614
Hearing dates:	19-20 November, 3, 9 December 2024
Date of orders:	16 December 2024
Decision date:	16 December 2024
Jurisdiction:	Common Law - Criminal
Before:	Weinstein J
Decision:	(1) The covertly recorded conversation between the accused and the undercover operative of the Queensland Police Service with the assumed name of Hemi Perata whilst the accused was in custody after his arrest for murder at Cairns watch house on 20 February 2022 is excluded pursuant to s 90 of the Evidence Act 1995 (NSW).
Catchwords:	EVIDENCE – admissions – pre-trial hearing to determine admissibility of evidence of admissions – where accused made admissions to undercover operative in police custody – where improperly and unfairly obtained information used to elicit admissions – evidence of admissions excluded
Legislation Cited:	Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Invasion of Privacy Act 1971 (Qld) Surveillance Devices Act 2007 (NSW)
Cases Cited:	Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 Pavitt v The Queen (2007) 169 A Crim R 452; [2007] NSWCCA 88 R v Broyles [1991] 3 SCR 595 R v Mallah (2005) A Crim R 150; [2005] NSWSC 358 R v Swaffield & Pavic (1998) 192 CLR 159 R v Workman [2004] NSWCCA 213 Sidaros v The Queen [2020] ACTCA 11
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Rex (Crown) Rodney Rose (Accused)
Representation:	Counsel: S Oliver (Crown) J Watts (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Universal Law (Accused)
File Number(s):	2022/00045909
Publication restriction:	Nil