R v Rumsby - [2023] NSWSC 229

Supreme Court

New South Wales

Medium Neutral Citation: R v Rumsby [2023] NSWSC 229
Hearing dates: 30 and 31 January 2023
1, 2 and 3 February 2023
Date of orders: 16 March 2023
Decision date: 16 March 2023
Jurisdiction: Common Law
Before: R A Hulme AJ
Decision:
Evidence of the admissions admissible.

Catchwords:
EVIDENCE – pretrial ruling – two counts alleging attempted choking to commit sexual assault and murder – admissions made to an undercover police officer during covert “scenario investigation” – unsuccessful attempt to distinguish this operation from others by reference to features such as tempting accused to be a reward seeker and requiring admissions to be made to “both or none” – objections under Evidence Act 1995 (NSW) on bases of admissions made as result of oppressive conduct (s 84), unreliability (s 85), unfairness (s 90) and improperly obtained (s 138) – evidence held admissible

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15E
Crimes Act 1900 (NSW), s 578A
Evidence Act 1900 (NSW), ss 84, 85, 90, 136, 138, 189

Cases Cited:
Deacon v The Queen (2019) [2019] NTCCA21; 282 A Crim R 303;
Director of Public Prosecutions v Ghiller [2003] VSC 350; (2003) 151 A Crim R 148
Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299; [2010] NSWCA 34
In the Matter of an Application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881
Lauchlan v The State of Western Australia [2008] WASCA 227
R v Cowan; Ex parte Attorney General; [2015] QCA 87; [2016] 1 Qd R 433
R v Esposito (1998) 45 NSWLR 442
R v Jelicic [2016] SASC 57
R v Kilincer (No 2) [2021] NSWSC 829
R v Simmons; R v Moore (No 2) [2015] NSWSC 143; (2015) 249 A Crim R 82
R v Fesus (No 2) [2015] NSWSC 1467
R v Swaffield (1998) 192 CLR 159; [1998] HCA 1
R v Tarantino (No 6) [2019] NSWSC 1174
R v Weaven (Ruling No 1) [2011] VSC 442
Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
Standage v State of Tasmania [2017] TASCCA 23
Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39

Category: Procedural rulings
Parties: Rex (Crown)
Craig Henry Rumsby (Accused)
Representation:
Counsel:
L Carr SC (Crown)
N Broadbent with Z Alderton (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 234445/2020
Publication restriction: This copy of the judgment has redactions for material caught by non-publication orders made during the proceedings.

JUDGMENT

The accused, Mr Craig Rumsby, is charged with:

the attempted choking of LS[1] with intent to enable him to commit an indictable offence, namely, to have sexual intercourse with LS without her consent, knowing she was not consenting, at Gulgong on 1 January 1998, and

the murder of Michelle Bright[2] at Gulgong on or about 27 February 1999.
1. Section 578A of the Crimes Act 1900 (NSW) prohibits publication of anything which identifies or is likely to lead to the identification of LS.
2. The Court was informed of consent by Ms Bright’s mother and brother pursuant to s 15E of the Children (Criminal Proceedings) Act 1987 (NSW) which operates to override the prohibition in s 15A of that Act of publishing or broadcasting her name.

The primary defence case is that the accused was not the perpetrator.
The Crown case is significantly reliant upon admissions alleged to have been made by the accused to undercover police officers on 11 August 2020. The admissions were made in the culmination of an operation using the “Unsolved Serious Crime Undercover Technique” (USCUT), sometimes referred to as a “Mr Big” operation or a “scenario investigation”.
The accused objects to the evidence, contending that it is inadmissible pursuant to ss 84, 85, 90 and 138 of the Evidence Act 1900 (NSW).

The offences

The following summary of the offences is drawn from the Crown Case Statement.

Attempt to choke LS with intent to have sexual intercourse without consent

LS was 18 years’ old when she attended celebrations on the eve of the 1998 New Year in the Gulgong town centre. She walked with her boyfriend and other friends to her home in Herbert Street, Gulgong in the early hours of 1 January 1998. A short time after arriving home she arranged to meet a friend on Herbert Street to take delivery of some cannabis. She went out to the street to wait the friend’s arrival while the others remained inside drinking and listening to music.
LS noticed a male who was barefooted and who she did not know walking towards her. Without warning he grabbed her by the neck with his hand on her throat and used his other hand to hit her in the face. He threw her to the ground, telling her to “shut up, shut up, shut up”. He further struck her to the face. He proceeded to do things indicating an intention to engage in sexual activity. LS screamed out for help. He further struck her and threatened he would kill her.
LS’s friends were alerted by her screaming and came outside. They saw the accused on top of LS but when he became aware of their presence he got up and ran away towards the town centre. LS’s boyfriend pursued him but lost him after he jumped over a fence.
Local police were contacted and attended quickly. An officer drove LS and her boyfriend to the police station and on the way they both saw the accused standing on Medley Street and identified him as the perpetrator.
The accused was spoken to. He was barefooted. He gave police his personal particulars and was allowed to leave.
LS’s injuries were recorded and photographed at the police station. Later that morning, her boyfriend found in the front yard near where LS was attacked a pair of sandals, an empty Jim Beam can, and a wallet embossed with the name “Craig” containing identification and other documents in the name of the accused. He gave these items to the local police and they were recorded in the Miscellaneous Property Book.
On 22 April 1998 the wallet and sandals were collected from the Gulgong police station by the accused’s sister on his behalf. She gave to police a letter written and signed by the accused identifying himself as the owner of the property and consenting to his sister collecting it.
LS commenced to make a police statement but decided not to complete it as she did not want to go to court. Ultimately, she provided a statement in September 2019.
The Crown Case Statement includes that the attack upon LS has never been publicly reported.

Murder of Michelle Bright

Ms Michelle Bright was 17 years’ old and lived with her family on Barneys Reef Road, Gulgong. The property is about 3km north of the town centre. Ms Bright attended the local high school and was well known within the small, local community. Gulgong at this time had a population of about 2000 people.
The accused lived alone on a rural property on Cypress Drive, Yarrawonga which was about 12 minutes’ drive east of Gulgong.
On Friday 26 February 1999, Ms Bright made arrangements to attend a 15^th birthday party at the home of a school friend on Bligh Street, Gulgong. The party was attended by a large number of young people.
Ms Bright left the party shortly before about 12.30am on Saturday 27 February 1999. She was given a lift and dropped off outside the Commercial Hotel in the town centre. She told the couple in the car that she intended to walk home from there. She was last seen walking down Herbert Street in the direction of Barneys Reef Road. She was reported missing by her mother on Sunday 28 February 1999.
The body of Ms Bright was found on the afternoon of Tuesday 2 March 1999 in long grass on the eastern side of Barneys Reef Road between the road and the nearby parallel railway line. She was partly naked and face down with her head closest to the road and her feet facing the railway line. Her shirt had been pushed up over her bra. The back of the bra had been torn or cut in two places. Her jeans and underpants were down around her ankles, but her shoes and socks were still on.
Ms Bright’s jacket and purse were found a short distance from her body, placed neatly on the ground. A button which appeared to have been torn from the jacket was nearby. Her necklace, which had been broken, was found at another location in the grass near the body. There was also a pile of vomit nearby.
This was in an isolated, flat area surrounded by farmland half-way between the town centre and her family home. The nearest house was 200-300 metres away. There was no street lighting and there would have been very limited passing traffic at the time Ms Bright was attacked.
Partial decomposition impacted the extent of the post-mortem examination and findings. The forensic pathologist, Dr Botterill, determined Ms Bright was killed by “homicidal violence of an undetermined aetiology”. The crime scene and the displacement of her clothing was suggestive of sexual assault notwithstanding the absence of unequivocal post-mortem findings in that respect. No DNA profile has ever been obtained to assist in identifying the perpetrator.
The murder received significant media coverage and continued to have a high profile in the media over the years.
At a coronial inquest in 2009, Dr Botterill expanded upon his opinion as to homicidal violence, saying it was either suffocation (something placed across the mouth) or strangulation with a broad ligature. Either mechanism can leave no discernible lesion, even without decompositional changes. Abrasions to the body were likely caused peri-mortem and the number and kind made accidental infliction unlikely. Dr Botterill agreed that they could have been occasioned by the body being dragged on the ground.
The coroner found that Ms Bright died at Gulgong on 27 February 1999 from homicidal violence but was not able to determine the cause of her death.

The police investigation

Initial inquiries by police indicated that very soon after the body of Ms Bright was found the accused moved from the Gulgong area to the western suburbs of Sydney where he remained until he was charged in 2020.
The accused was first spoken to by police on 1 April 1999 when he was contacted by phone by Mudgee detectives. He provided his contact details. He was interviewed on 17 June 1999 at his home in Cranebrook. He said he was living at his mother’s address at Cypress Drive, Yarrawonga. On the night of the murder he went to the nearby property of a friend, Victor Ellis, where he played cards until 3.00am and then drove home. He was also spoken to about the incident concerning LS but denied any involvement.
Victor Ellis was spoken to and confirmed that the accused had been at his home on the night of 26 February 1999 but said he left before midnight, possibly as early as 11.30pm.
The accused was further interviewed by police on 6 December 1999. He maintained the essence of his previous account. He was told of Mr Ellis’ recollection as to the time of his departure and accepted that it “could have been” at that time. He said that when he left, he drove his car, a red XF Ford Falcon, back to his home and remained there.
The accused met with police at Windsor police station on 13 January 2003 and voluntarily supplied a DNA sample. That was the last time investigating police had spoken to him.

The USCUT operation

The following summary of the USCUT operation deployed by the police was provided in the written submissions for the Crown:^[3]
3. Crown written submissions (CWS) at [7]-[17].

’I don’t give a fuck what you’ve done or fuckin’ anything’ man as long as you do the right thing by us and you’re honest to us all the time man…the bosses will just make everything cool.’ ^[4]
4. Representation by covert operative to Cowan: R v Cowan; Ex parte Attorney General [2015] QCA 87 at [32].
These assertions by a police officer to Brett Cowan were part of a police operation, and through this conduct ultimately elicited a confession from him to the murder of Daniel Morcombe in Queensland.
Daniel Morcombe went missing in 2003, and it was not until 2011 that this confession was elicited from Cowan, someone who had previously denied any knowledge of or involvement in Daniel Morcombe’s disappearance.
Queensland police had deployed a “scenario investigation”. The police officer who made the representation to Cowan outlined above was an undercover police officer. “The bosses” of the large, powerful criminal organisation that Cowan sought to become a fully-fledged member of, were also undercover police officers, and the organisation did not in fact exist. His ultimate confession to Mr Big was in fact made to, and lawfully recorded by, police.
This is likely the most publicised use of the scenario investigation in Australia. Despite garnering significant media attention, it is far from the only time this technique has been utilised.
The scenario investigation involves a high level of deception, which is often maintained by the undercover operatives for an extended period of time. Deceptive techniques have themselves been utilised in policing for an extended period of time. As observed by Kirby J in The Queen v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1 at [155]:
“Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest. There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice.”

In Australia, USCUT is more commonly used in cold cases, generally in investigations of homicides.^[5]
Each scenario investigation inevitably differs depending on the circumstances of the case, although each follow a very similar framework. That is particularly the case in the NSW cases which to a large degree mirror each other. The first phase of the investigation is the development phase, where the development of the relationship between the suspect and undercover operatives is formed. The manner in which this develops may differ but follows a general pattern; an undercover officer or multiple officers will commence the operation with a chance meeting with the suspect.^[6]
The undercover officer (or officers) then maintain a relationship with the suspect, with further meetings being arranged. Once there is sufficient trust established with the suspect, the undercover officer will reveal their involvement in a criminal organisation; during this reveal, the suspect is generally then recruited into participating in low level tasks for the organisation, the purpose being to establish the suspect’s role in this organisation.^[7] Over time, the suspect’s responsibilities will increase, and/or they will be involved in more serious “scenarios”; the suspect also often obtains a benefit, whether that be with the loyalty of the criminal group, or with financial remuneration.^[8]
Following this infiltration, the suspect may be offered full membership to this organisation. However, whilst the terms may vary, the premise remains the same, that is, this membership comes with a caveat; membership is only permitted with full honesty and transparency with the organisation.^[9] Fortunately for the suspect, Mr Big can ensure that the suspect’s criminal offending can be dealt with.^[10] Mr Big will reveal tools at his disposal to do so such as an ability to interfere with a crucial witness, to influence an alleged corrupt police officer, to have another take the blame or to dispose of evidence.^[11]
The next phase of the operation is the resolution phase. The suspect will become aware of an increased police interest in them, relating to the offence for which they are being legitimately investigated. A meeting will be arranged with Mr Big (the boss), where the suspect is encouraged to reveal the extent of their criminal offending, with the promise of further involvement in the organisation and, at the same time, a guarantee that the suspect will evade arrest and charge for their involvement in the relevant offence.^[12]
The suspect is very likely to be advised that, in the absence of assistance from the criminal organisation, the suspect’s arrest and conviction would be inevitable.^[13] Further, the suspect is not invited to simply confess to involvement in any criminal activity; once the resolution phase of the scenario investigation is reached, the suspect is well aware of the precise criminal offence they are to confess to. This may be because of reference to publication of media articles, or a press conference referencing the specific crime and police scrutiny of the suspect simultaneous to the operation being underway.^[14]
Following the confession, the suspect is arrested and charged.

5. For example, per the Commissioner’s evidence in In the Matter of an Application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881 at [41]-[43].

6. Christopher Lutes, “Hart Failure: Assessing the Mr Big Confessions Framework Five years Later”, Manitoba Law Journal, Volume 43, Issue 4, from 209 (at 215).

7. Timothy E Moore, Peter Copeland and Regina A Schuller, “Deceit, Betrayal and the Search for Truth: Legal and Psychological Perspectives on the ‘Mr Big’ Strategy’ (2009) 55 Criminal Law Quarterly 347, 348.

8. Christina J Connors, Marc W Patry and Steven M Smith, “The Mr Big technique on trial by jury” (2018) Psychology, Crime and Law 1, 2.

9. Amar Khoday, “Scrutinizing Mr Big: Police Trickery, the Confessions Rule and the Need to Regulate Extra-Custodial Undercover Interrogations” (2013) 60 Criminal Law Quarterly 277, 278.

10. Kirk Luther and Brent Snook, “Putting the Mr Big technique back on trial: a re-examination of probative value and abuse of process through a scientific lens” (20) 18(2) Journal of Forensic Practice 131, 132-133.

11. Kouri Thomas Keenen, “Mr Big” Recruiting for the Criminal Underworld: An examination of undercover police investigations in Canada” (Master of Arts Thesis, Simon Fraser University, 2009), 2, 13-14.

12. Kate Puddister and Troy Riddel, he RCMP’s “Mr Big” sting operation: A case study in police independence, accountability and oversight” (2012) 55 (3) Canadian Public Administration 385, 386.

13. Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39 at [267].

14. R v Clarke [2006] VSCA 43 at [34]-[38].

Caselaw

There have been a number of cases in which courts have considered the admissibility of evidence derived from an USCUT operation. Applying common law principles, the High Court dismissed appeals by offenders in four discrete cases from Victoria in Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39. It is worth noting at this early point the caution expressed at the end of the judgment of Callinan, Heydon and Crennan JJ at [416]:

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

In New South Wales the evidence has been held to have been admissible under provisions of the Evidence Act in at least R v Simmons; R v Moore (No 2) [2015] NSWSC 143; R v Fesus (No 2) [2015] NSWSC 1467; R v Tarantino (No 6) [2019] NSWSC 1174; and R v Kilincer (No 2) [2021] NSWSC 829.
In other States and Territories, the evidence has also been held to be admissible despite objections in R v Cowan; Ex parte Attorney General (2016) 1 Qd R 433; [2015] QCA 87 (on appeal from R v Cowan [2013] QSC 337); Deacon v The Queen (2019) 282 A Crim R 303; [2019] NTCCA 21; Lauchlan v The State of Western Australia [2008] WASCA 227; R v Jelicic [2016] SASC 57; R v Weaven (Ruling No 1) [2011] VSC 442.

Neither party identified any case in which the evidence has been held to be inadmissible.
I gratefully adopt the summary of pertinent aspects of the caselaw provided by Johnson J in R v Kilincer (No 2), the most recent of the decided cases. His Honour first referred [15] to descriptions provided in the various judgments in Tofilau v The Queen of the USCUT (which he referred to as “the Mr Big investigatory strategy”). He then turned to what was said by the judges in that case, and some other cases, which is worth quoting in full:
15. R v Kilincer (No 2) at [28]-[30].

[31] The decision in Tofilau v The Queen involved consideration of common law principles before Victoria enacted the Evidence Act 2008 (Vic). It is, of course, the language of the Evidence Act 1995 (NSW) which is to be applied on the present application: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 39 at [10], [88]. However, what was said in Tofilau v The Queen has provided considerable guidance when considering objections to evidence, arising from the “Mr Big” investigatory strategy, taken under the Evidence Act 1995 (NSW) and under corresponding legislation in other jurisdictions in Australia.
[32] To the extent that the “Mr Big” investigatory method uses trickery and deception, Gleeson CJ observed in Tofilau v The Queen (at [5]) that the “use of undercover police operations always involves deception” and that “all forms of covert surveillance…involve a kind of deception".
[33] In the circumstances under consideration in Tofilau v The Queen, Gleeson CJ observed (at [17]) that “the deception practiced upon them was not such as was likely to elicit a false confession”. Gleeson CJ observed as well (at [18]) that it was significant that “the appellants thought they were talking to criminals, not police officers” and that “deception is a very common method of seeking to obtain confessions from people suspected of crime”.
[34] With respect to the use of psychological pressure in this context, Gleeson CJ said (at [19], footnotes omitted):
“Since possible forms of deception are bounded only by human imagination, and human gullibility, it would be dangerous to assert that no form of deception could deprive conduct of its voluntary character. Most deception used in the hope of eliciting admissions, however, including the form used in the present case, is calculated to induce a person to choose to reveal information that otherwise would be concealed. The appellants were subjected to powerful psychological pressure, but it is not unusual for people to reveal old secrets under pressures that are no less compelling. The law attempts to distinguish between external pressures and pressures personal to the confessionalist. That itself may be a distinction based on pragmatic rather than scientific considerations. The effect of external forces and circumstances on an individual is likely to depend on characteristics personal to the individual. That which a person of one disposition may regard as unbearable pressure may be a matter of indifference to another. The physical or emotional characteristics of a person, or that person’s background or circumstances, will always be material to the effect of externally imposed pressure. The burden of guilt may weigh heavily on one person but may be borne lightly by another.”

[35] With respect to an argument based upon the suggested infringement of a person’s “right to silence”, Gleeson CJ said (at [21]):
“In answer to this line of reasoning it must again be observed that many forms of undercover police activity, and of covert surveillance, involve attempts to gain information from people who, if they were aware of what was going on, would remain inactive or silent. There is a sense in which it can be said that intercepting a telephone conversation, or secretly recording an interview, always deprives a person of the opportunity to remain silent in circumstances where, if the person had realised that he or she was under observation, the person would have remained silent. That does not mean that there has been an infringement of one of the legal rules which together make up the right to silence. Nor does it mean that what is being said in the conversation is involuntary. The argument seems to equate the right to silence with a right of privacy, and to treat as involuntary any statement that is made without a fully-informed appreciation of the possible consequences. Neither step is consistent with legal principle.”

[36] Gummow and Hayne JJ pointed to the absence of duress, coercion and intimidation in the circumstances under consideration in Tofilau v The Queen (at [81]):
“The statements the appellant made to undercover police officers were not made under compulsion. Nothing that was said to or done with the appellant constituted compulsion of a kind that would meet the criteria leading to the conclusion that what was said was not said voluntarily. There was no duress or intimidation. The police operation was elaborate and took place over an extended period. The appellant thought that he would benefit from saying what he did. More than once the appellant was told how important it was that he be frank about his past and about the circumstances of Ms Romeo’s death in particular. He was repeatedly told that if he had a problem the boss would make it ‘go away’. But no coercion was applied to the appellant by those to whom he made his confession. There was no importunity, insistence or pressure of a kind exerted by those to whom the confession was made that would found the conclusion that the appellant had no free choice whether to speak or stay silent. Observing that the appellant may have felt under pressure requires no different conclusion. What is important is the absence of coercion by those to whom he spoke. That he may have felt under the pressure that he himself generated by his desire to join the gang and thus gain not only the financial benefits said to follow from that membership but also resolution of what otherwise appeared to be his inevitable prosecution for murder is not to the point.”

[37] With respect to issues of pressure and suggested impropriety, Gummow and Hayne JJ said (at [113]):
“In the present matter, the appellant sought to describe the methods employed by investigating police as ‘improper’. That description was given colour and, perhaps, some content, by reference to the playing out of what appeared to be serious criminal activity. But in fact, no crime was committed in the course of the various scenarios conducted by the covert police operatives. The ‘impropriety’ to which the appellant pointed was, in the end, said to lie in the ‘pressure’ that had been applied to him. That ‘pressure’ was constituted by creating in his mind the belief that the only way he could avoid being charged with and convicted of the murder of Bonnie Clarke was to tell the ‘boss’ that he had done it.”

[38] When considering the issue of inducements, Callinan, Heydon and Crennan JJ observed (at [323]) that “each appellant lacked reasonable grounds for thinking that the undercover officers had lawful authority to investigate [the suspected offence]” and that “the only reasonable belief which the appellants could have had about those persons was that they were gangsters, not authorised police officers”.
[39] Concerning the issues of deception and manipulation, Callinan, Heydon and Crennan JJ observed (at [347]) that “there are innumerable examples of confessions being admitted despite the confession having been generated by deception”.
[40] With respect to the use of pressure and the absence of threats, intimidation and violence, Callinan, Heydon and Crennan JJ said (at [375]-[376]):
“375 Here the undercover police officers did not use violence on any appellant, and they did not threaten it. They did not threaten any illegal act directed against any appellant and they did not threaten any illegal act against any third party whose position might cause an appellant to speak who otherwise might have remained silent. They did promise to procure a corrupt police officer to terminate the police investigations, but they never in fact intended to do any such thing. They did tell Clarke that the police had DNA evidence linking him with the crime: that was untrue, but it was not intrinsically unlawful. They thus did nothing unlawful. There was no duress or intimidation. To ask whether they did anything ‘illegitimate’ begs the question: if what they did fell outside Dixon J’s test, it was not; if it fell within it, it was.
376 The police officers were at times importunate. They were insistent that each appellant confess his guilt. By their questioning they applied pressure. The question whether each appellant confessed involuntarily thus turns on whether the importunacy was so persistent, and whether the insistence and the pressure were so sustained or undue, as to overbear his will. That depends on the particular circumstances applying to each appellant.”

[41] Reference should be made to the “cautionary note” at the end of the judgment of Callinan, Heydon and Crennan JJ (at [416]): … [This has been quoted above at [32].]
[42] As will be seen, the approach of the majority in Tofilau v The Queen has been called in aid in rejecting objections to alleged admissions obtained using the “Mr Big” investigatory strategy made by reference to ss. 84, 85, 90 and 137 Evidence Act 1995 (NSW) (or its equivalent in other Australian jurisdictions): R v Weaven (Ruling No. 1) at [32]-[41]; R v Simmons; R v Moore (No. 2) at [60]; R v Fesus (No. 2) at [205]; Deacon v R at [35]-[48].
[43] In R v Jelicic, Peek J noted the similarities between cases using the “Mr Big” investigatory method and said (at [13]-[16], footnotes omitted):
“13 It is no coincidence that cases involving a [sic] Mr Big covert operations tend to be similar. For many years, templates have been used to plan such operations, and the templates have been modified in the light of police experience as to their effectiveness and, most importantly, aspects of court decisions from time to time indicating what is acceptable, what is unacceptable, and where dangers of inadmissibility may lie.
14 It is important to appreciate that there are differences between the Australian Mr Big operations (both those considered by the High Court in Tofilau and Australian operations conducted subsequent to that decision) and many of the operations carried out in North America, such that the Australian operations have been less open to objection than the North American. I will say something about some of those differences and the decision of the Canadian Supreme Court in R v Hart below.
15 However, one readily notes the similarities between the four operations concerning the four appellants Tofilau, Marks, Hill and Clarke considered in Tofilau. Since this decision of the High Court, the execution of such operations in Australia have become even the more uniform so as to ensure compliance with the separate judgments of Justices of the High Court in Tofilau.
16 Thus, while it is often said, in a general way, that little is to be gained from a comparison of the facts of one case with that of another, that observation may be less true in the case of Mr Big cases. By dint of the above processes, the ambit of objection to the admission of evidence derived from Mr Big operations conducted in Australia has tended to become more predictable. To at least some extent, a comparison may usefully be made of the different ways in which essentially the same operation was carried out in different Australian cases.”

[44] In Deacon v R, Grant CJ, Southwood J and Riley AJ referred (at [58]) to the statement of Peek J in R v Jelicic (at [16]) and then continued at [59]:
“Of course, it is not enough to say in a general sense that covert ‘scenario’ operations do not constitute ‘oppressive conduct’ requiring the exclusion of confessions or admissions made in the course of such operations. It is necessary to give attention to the character and content of this particular operation, the context in which the admissions were made, and the applicant’s personal characteristics and position in the matter.”

Johnson J then observed (at [45]) that “the statements of courts in other cases provide a helpful background to consideration of the objections taken in the present case” because “the recurring features of “Mr Big” investigations identified in earlier cases were apparent as well in the case of the Accused”. The same applies to the present case.

The USCUT investigation in this case

In 2018 the Unsolved Homicide Team reviewed the case concerning the murder of Ms Bright and identified the accused as a person of interest. In January 2019, Strike Force Mitcham II was formed to further investigate. An USCUT operation was commenced in November 2019.

The development phase

Between November 2019 and August 2020, the accused met with undercover police officers (UCOs) who he was given to believe were members of a criminal gang. They engaged the accused in various “scenarios”, carrying out ultimately what he was led to believe was criminal activity. As time progressed the accused became more involved in the activities of the gang. Members of the gang, whose structure was hierarchical, stressed to the accused the necessity of trust, honesty, and loyalty. There was an emphasis on the gang being a form of family. In time, the accused saw himself as a potential member of the gang and he suggested activities that could profit the group.
The accused was told that the “big boss” of the criminal syndicate was very influential and well connected, including to a corrupt detective. The accused was introduced to the idea there was nothing that could not be fixed. He was also told there was a lot of money to be made by being involved in the gang and there was a lot of work coming up. The accused was consistently told he could leave the gang at any time with no recriminations.
The detail of these various “scenarios” and interactions with the gang members is set out in Annexure 5 of the Crown material [16] and is further summarised in the written submissions.^[17]
16. Also Document 7 in Exhibit TWW-1 to the affidavit of Toshi Weller-Wong of 14 December 2022.
17. CWS [35]; Accused’s written submissions (AWS) [10].
Some matters are worth particular note. On 19 March 2020, during a scenario involving [redacted], the accused was introduced to a UCO posing as a corrupt police detective (UCO 1). UCO 1 [redacted]. The accused was told about a member of the organisation who the boss was going to help [redacted].
On this occasion and without any prior mention of the subject by any UCO, the accused volunteered that police had previously tried to “pin” the murder of Michelle Bright on him. He said she was a good friend of his and that he had shaved his head when he was informed that police wanted a sample of his hair and DNA. He said he was living in Sydney at the time of the murder, but he had come home to Mudgee the weekend she was killed. He said he returned to Sydney on the Sunday and that he was at a house with a whole family, and they were his alibi. He said he went out and had a barbecue and partied with a friend (Victor Ellis) who lived out near his mum’s home. He went on to say that a “very good friend” of his got murdered, “I’ve known her since she was a baby. That was the deceased Bright … out at Gulgong…. They were accusing me of murdering her. I said, ‘why would I murder her? She’s like a bloody sister to me’.” The accused said her killer had not yet been found by police, and that he had a good alibi. [18]
18. It was contended in the AWS in Reply that the accused did not tell UCO 4 that police had tried to “pin” the murder of Ms Bright on him. Even on the extract from the transcript provided by the accused (in the AWS in Reply fn 1), that remains an apt description, given the accused said police “were accusing me of murdering her” and he agreed with UCO 4’s clarifying question “they tried to pin it on you?”
On 19 May 2020, there was a scenario in which the accused was shown that there was the opportunity to voluntarily leave the organisation on good terms and with no consequences. A UCO (UCO 2) expressed a desire to leave the organisation for personal reasons: [redacted]. The accused saw how UCO 2 was assured that this was permissible; he could voluntarily leave the organisation on good terms and with no consequences but would always be welcome to return.
On 15 June 2020, “the boss” (UCO 3) called some of the UCOs to a meeting in [redacted]. One of them was in the company of the accused who met the boss briefly for the first time. The boss told the accused he had heard some good things about the work he had been doing and that he and UCO 4 made a great team.
This meeting concerned some trouble another UCO (UCO 5) was in, [redacted]. The boss reassured the accused that it was nothing to worry about; “we look after our own”. The message conveyed to the accused was that anything could be sorted out as long as they were open and honest with each other. [Redacted], UCO 1 [redacted] UCO 5 [redacted]. The accused was present and heard about the various arrangements made for UCO 5 to be [redacted].
During a scenario on 16 July 2020, the accused described owning a red XF Ford Falcon during 1999. He said it was destroyed by fire on Good Friday 1999. Inquiries reveal that “Good Friday” 1999 fell on Friday 2 April 1999, this being the day after the accused was spoken to for the very first time by police in connection with the murder of Ms Bright.
A scenario that commenced on 13 July 2020 continued on 23 July 2020. It had two parts, [redacted] and the continuation of an earlier scenario that involved [redacted]. The [redacted] scenario was purportedly carried out and at its conclusion the accused was involved in [redacted].
From 26 July 2020, the accused was involved in several scenarios designed to further [redacted] and, by 4 August 2020, it was at an advanced stage. The events from then on are reviewed below.

Crown submission as to the development phase

The Crown made the following submissions concerning the outcome of the developmental phase of the USCUT operation:^[19]
19. CWS [36]-[38].

The accused’s involvement in the 2019 and 2020 scenarios was free and voluntary.

He was told he could leave at any time.

He was given an example of a member leaving amicably and without any recrimination.

He was asked on several occasions whether he wanted to continue to work with the group and he said he did.

He demonstrated a willingness to be involved and voluntarily participated in the activities associated with each scenario.

As time progressed, he enthusiastically embraced scenarios with criminal overtones and suggested other such activity that could be available to the group. He had freedom to act proactively and to show initiative.

He took initiative in planning big jobs which would be financially rewarding for him.

He understood the need for honesty and loyalty to the group.

He wished to be a member of the group and indeed spoke to those interacting with the group as if he was a member.

He believed the boss had the ability to fix problems that may arise and that he could leave at any time with no recriminations.

There were occasions when he was not available to participate in a deployment and no pressure was brought to bear.

There was no actual criminality or illegality in the conduct of the operation; all the scenarios involved “staged” crimes.

He had been advised on several occasions that the boss “could fix anything” and had connections to a corrupt detective.

He had a demonstration of the boss “fixing” the trouble UCO 5 was potentially in by [redacted].

The personal characteristics of the accused were such that he had no particular vulnerabilities which were exploited to coercive effect.

The accused was intelligent and careful when performing “work” for the organisation and acted with vigilance towards potential detection.

At no point was the accused personally exposed to violent behaviour by “family” (gang) members, nor was he threatened with any type of violence.

The Crown submitted that the matters above strongly demonstrated that the accused acted with initiative, enthusiasm, freedom of choice and a lack of oppression. [20] (The defence accepted that he “participated in these series of scenarios quite willingly and indeed, quite enthusiastically”.) [21]
The Crown submitted that while the operation was lengthy, and to an extent repetitive, “it was all carrot and no stick”. It argued that this description also applied to the conversations of 11 August 2020, the resolution stage.
20. The Crown relied in this respect upon a table of transcript extracts said to demonstrate the accused’s initiative and enthusiasm and the lack of oppression.
21. T85.1.

As to item (p) and the submission in the penultimate sub-paragraph above, the accused submitted that “whilst it may be readily accepted that the accused acted with enthusiasm and freedom of choice during the course of the USCUT operation (at least prior to 11 August 2020), and that his enthusiasm manifested in displays of initiative such as [redacted], his involvement could hardly be considered to demonstrate any sophistication”. [22]
22. AWS in Reply [9].
Issue was also taken by the accused with the Crown characterising the operation as “all carrot and no stick” because, in what occurred on 11 August 2020, the accused was presented with a choice between making a confession and being imminently arrested and charged with offences including murder. [23]

Prelude to the resolution phase ^[24]

23. AWS in Reply [10].

24. Crown bundle, Annexure 5, pp 111-130; see also AWS [12]-[22].

On 4 August 2020, UCO 4 picked the accused up at Windsor Riverside Van Park at Wilberforce where the accused lived in a cabin. UCO 4 commented to the accused about a blue car (an unmarked police car) parked nearby which followed them as they drove away. The upshot was that this was reported to a senior gang member (UCO 6, the second in charge) who purported to make an inquiry and then advised that the car was registered to the NSW Police Force State Crime Command. The accused showed a degree of initiative in identifying the registration number and making suggestions as to what should be done. The “big job” for the day was called off.
During the afternoon of 4 August 2020, investigating police commenced making overt inquiries with family members and associates of the accused. In the meantime, in the course of numerous calls and texts with UCO 4, the accused was told that “they” [i.e. the police] “are looking at you. Your name’s come up in some case”. He told the accused that they could not do anything now; the boss had said that “we can’t do anything if there is heat on one of us, so this has to be fixed before anything goes ahead”. He said that UCO 1 said the police were looking at him (the accused) and he is trying to find out more information. UCO 4 reminded the accused, “You’re in the family brother so we are in this together”.
Between 5 and 10 August 2020, police continued overt inquiries with family members and associates of the accused. The same unmarked police vehicle, involved in the “compromised” surveillance on 4 August 2020, was parked outside the Wilberforce Riverside Van Park at various times in this period.
On 5 August, UCO 4 told the accused that UCO 1 had said the blue car belonged to the homicide squad. UCO 4 asked the accused if he had any idea what it was about and he replied that he did not. A few hours later UCO 4 sent a text advising:

UCO 1 said it’s some strike force for a murder that happened years ago out west somewhere … it’s serious.

The text exchange that followed included the accused saying:

I hope they are not going to question me about Michelle Bright at Gulgong from 1999 when I left there she was murdered but they were wrong because she was like a sister to me because I have known her since she was a baby.

On 6 August 2020, UCO 4 sent the following text to the accused:

UCO 6 told me the boss and UCO 1 just met up. UCO 1 told him it’s about that Michelle girl. The jacks have been speaking with your family and people u know apparently.

Subsequent messages from the accused included reiteration of his innocence.
On 10 August 2020, police held a press conference at which members of Ms Bright’s family were present. The Commander of the Homicide Squad asked for assistance from the community and announced an increase in reward monies to $1 million.
Detective Superintendent Doherty mentioned that the murder was thought to be preceded by Ms Bright being sexually assaulted and that police were now looking at possible links to other sexual assaults of young women in the Gulgong area, noting that it was possible that such incidents had not been reported. Mention was also made of a line of inquiry relating to a red XF Ford Falcon station wagon and its possible link with Ms Bright’s murder.
UCO 4 sent a text to the accused alerting him to the press conference and providing him a link to the NSW Police Force Facebook page containing a video of it. The accused replied, “Yes, I just watched it. It happened after I left.”
About 20 minutes after sending that text, the accused posted a comment on the police Facebook page, identifying himself by name: “It’s so sad that they haven’t caught her killer years [sic] Michelle was like a sister to me I feel sorry for the family”. He continued professing his innocence in text messages to UCO 4. He was told the following morning, in feigned tones of urgency and gravity, that he was required to come to a meeting with the boss.

The resolution phase, 11 August 2020 ^[25]

25. Crown bundle, Annexure 5, pp 130-133; transcripts of covertly recorded conversations on 11.8.20. Note: Transcript page references hereafter are taken from the bundle handed up at the pre-trial hearing on 30 January 2023 (T8.35) (referred to herein as CRT). Page numbering in that bundle is close to but does not exactly coincide with that in Annexure 10 in the Crown bundle but does coincide with Documents 10 and 11 in Exhibit TWW-1 to the affidavit of Toshi Weller-Wong of 14 December 2022.

On Tuesday 11 August 2020, the accused was collected by UCO 4 and UCO 7, and they travelled together to an apartment at [redacted]. UCO 4 told the accused that the boss had said that nothing is happening until “this is fixed” and “it’s a lot bigger than what they thought”. The boss wanted to meet personally with him. They entered the apartment at 9.47am and the boss (UCO 3) was waiting with UCO 6. After introductory conversation, the boss told the others to leave so that he could speak alone with the accused.
Some further general conversation included the accused saying that he was enjoying working with (the UCOs) and the boss spoke with praise about what he had heard. He emphasised a number of times the requirement for “truth, loyalty and honesty”.^[26]
26. For example, at CRT 83-4.
The boss told the accused he was a suspect in two matters, this had brought “heat” onto the family and they have had to stop everything. He offered to help the accused like he helped UCO 5 (see above at [46]) but he could not do that unless the accused was honest with him. [Redacted] UCO 1 [redacted].
The boss spoke to the accused about the LS assault and encouraged him to be honest. The accused gave an account of his movements that evening. It included that he “ran into someone”, “a female”, and “she started screaming” and then “all the coppers are coming” so “I took off running”. He was spoken to and then he walked home. He did not know why LS had told police that he had tried to rape her. A little while later he said that he did not know if he hit her.^[27]
27. CRT 96-108.
The boss read to the accused a detailed account of what LS said occurred and told him, “I’d like to think I’m an educated man and I can’t see you fucking beating that without my help”.^[28]
28. CRT 110.
The conversation was then directed to the murder of Ms Bright. The boss referred to the media appeal the previous day and the million-dollar reward offered for information. He reiterated that “if you’re not honest with me, mate, I can’t help you and the fallout of that is, is unfortunately we can’t do any more work together”.^[29]
29. CRT 115.
The accused insisted upon his innocence: for example, “I wish I could tell you the truth but I am tellin’ you the truth. I don’t know nothing’ about it”.^[30] The boss was insistent, however, putting to the accused that his claim of having been in Wilberforce was not true as was his claim of having been at the home of Victor Ellis until 3.00am, given Mr Ellis’ statement. He told the accused, “Your alibi’s … blown out of the water completely”. The accused still maintained his innocence, saying repeatedly in a rather emphatic tone, “I didn’t do it”, adding a little later, “I swear it on my dad and mum’s grave I did not do that to Michelle … cause I know how … respected her family was around Ulan and Gulgong”.^[31]
30. CRT 123.
31. CRT 124-133.
At 11.50am, the boss called UCO 6 and asked him to send UCO 4 back into the room to take the accused for a walk. The accused told UCO 4 that he was even more stressed than before. UCO 4 reassured him, telling him not to stress, but to be honest with the boss who would fix everything.
The accused was brought back into the room with the boss at about 12:34pm. The boss showed him copies of other police documents and records provided by UCO 1, including a photograph of a red XF Ford Falcon and maps of the Gulgong area, and again encouraged him to be honest.
The boss continued asking about the murder. After a while the accused began to offer some pertinent details. He remembered there was talk of a party in Gulgong (the one attended by Ms Bright). He agreed he did leave Victor Ellis’ home by about 11.00pm. He then drove to the home of friends, Greg and Marilyn, from where he and Greg’s brother drove into town in the accused’s red XF Falcon sedan and went to the Post Office Hotel. He then went to the Commercial Hotel to speak with the publican and thereby split up with Greg’s brother. He may have left there and walked in a certain direction. However, he claimed to have no memory of what occurred in relation to Ms Bright. The boss suggested it might help if UCO 4 and UCO 7 took him out to Gulgong and the accused agreed that this might jog his memory.^[32]
32. CRT 169-180.
After some further conversation, the accused began to admit involvement with Ms Bright. He heard footsteps behind him; he hit her with his fist; she fell and was knocked out; he covered her mouth so that she could not breathe until she was not breathing; he panicked and he left. The boss then explored some further details of the incident.^[33]
33. CRT 187ff.
The boss summoned the other UCOs to return to the room at about 1.58pm. UCO 4 and UCO 7 came and took the accused for another break. The boss resumed the conversation with the accused in the apartment at about 2.23pm. There was clarification of some details of what had occurred in relation to Ms Bright. There was also discussion about travelling to Gulgong for the accused to clarify things. An arrangement was made for the boss, UCO 4, UCO 7 and the accused to travel to the Gulgong area. A UCO was to go to the accused’s home and pack a bag of his clothes and medications. Afterwards the accused would be taken to Mudgee where a chartered plane would fly him to Ballina that night.
In the course of the car journey to the Gulgong area, the accused identified a wrecking yard at Kingswood where he had sold his Ford XF Falcon after it was damaged by fire on Good Friday, 2 April 1999. They proceeded to Yarrawonga (sometimes referred to by the name Home Rule), where the accused pointed out several locations he visited on the night of Ms Bright’s murder. This included the place where he was living and the homes of Victor Ellis and “Greg and Marilyn”.
The accused then directed the UCOs to the Gulgong town centre. He identified a property at 7 Railway Street as the home of a friend, Tom Bromley, where he attempted to call his mother after the assault upon LS.^[34] He then directed them to the centre of town and pointed out two hotels.^[35] From there, they went to a point where the car was stopped and, on foot, he showed the UCOs the location of the assault upon LS.^[36] The party returned to the car and the accused directed them to the location where he said he had killed Ms Bright.^[37] At each of these locations, the accused provided further details of the two attacks.
34. CRT 404-8.
35. CRT 410.
36. CRT 413-4.
37. CRT 414-462.
Finally, the accused and UCOs proceeded to Mudgee airport where the accused was arrested.

Admissions made

The Crown contends that the accused made the following admissions concerning the murder of Michelle Bright.^[38] (Items marked with an asterisk are in addition to those referred to be the Crown.)
38. CWS [78].

He could have fell asleep and she’s come along and tried to wake him up and he was scared and that (p184).

That “he could” have stood in a spot where no one could see him in the dark until he heard someone coming up behind him. After he was asked, “could have, or I did” the accused replied “I did” (T186). Shortly before this, after the accused said, “I could have seen someone coming behind me …” the boss said, “I don’t want guesses, and, you know guesses won’t help. We need to know the truth. And I need you to open up and tell me the truth.” (T185)

He said he heard “footsteps behind me … so I stopped ... in a dark spot .... I didn’t know if it was a girl or what and I just hit her … with my fist …. She got knocked out …. I don’t know if I was raping her or not …. I covered her mouth over so she couldn’t breathe.…” and he kept his hands on her mouth “till she wasn’t breathing” (pp 186-7).

He didn’t think he raped Ms Bright, but he undid her blouse. He pulled her bra down and it might have ripped when he was “pulling it over.” He put his hand over her mouth before lifting her blouse. He pulled her bra down because he wanted to “play with her tits … she had a nice set.” He left her underpants on her (pp 189-191).

It was a hot night. Ms Bright was carrying a jacket and he left it at the scene. He folded it up and left it at the side of her body (p 191). He told the UCOs when they were at Gulgong that Ms Bright dropped her jacket when he punched her, that he picked it up and put it with her, near her hands at the side of her body (pp 425-6).

He felt the need to cover her mouth because he was worried about being identified (p 194).

He realised who it was when he hit her and knocked her down. He stated he was concerned about being identified and that led him to kill her. After he hit her, she did not regain consciousness again. “She didn’t fight or anything” (pp 215-6).

The following admissions were made during the trip to Gulgong:

The accused directed the group to the crime scene at Barneys Reef Road. He noted it had changed and indicated there used to be trees along the side of the road (opposite the railway line) (pp 416, 420-2).
He denied that he saw Ms Bright and followed her down the road (p 417). He said the grass in the area was tall (p 420).
The accused said that he walked down Barneys Reef Road on the left (western side) and Ms Bright was walking on the same side of the road (pp 422-3).
He only punched her once, on the jaw, and this knocked her out. After he struck her, he pulled her across the road into the scrub. He grabbed her by the hands and dragged her off the road, into the grass “so no one could find her body” (pp 423-4).
He put his hand over Ms Bright’s mouth once he had dragged her into the long grass. He said she didn’t fight, scratch or pull his hair and that he placed her hands down beside her body (p 426).
Ms Bright was wearing jeans and a white top. He pulled her bra up. When he put her in “the gully” she was laying along the gully, sort of parallel with the railway line (p 427).
Ms Bright was not “sick or anything” (p 429).* The accused denied vomiting (p 442).
He left her “on her back”; definitely face up. (pp 429, 456).*
He did not pull her pants down, but they could have come down when he was dragging her. She was wearing black shoes [or joggers, he was not sure*] (p 428).
He dragged Ms Bright into the grass and then covered her mouth “to stop her breathing”. She did not scream; “that was [first name of LS]” (p 430).
He described being on top of Ms Bright when he put his hand over her mouth (p 430). He was at the location for 10 to 20 minutes (p 431). He was frightened because of “what I had just done”.
He was covering her mouth “to stop her breathing”. When one of the UCOs expressed doubt that this would take the whole 10 minutes, he said, “Yeah, makin’ sure” (p 433).
He confirmed that he pulled Ms Bright’s bra up. He said he did that because she had a “nice, firm set” of breasts and that he felt her breasts after he had killed her (pp 435-6).
When he pulled the bra up, he thought the bra broke and “the clips came off the back” (p 437). He did not have a knife or scissors (p 427).*
Her pants were down after he dragged her into the grass and she was wearing a black G-string [black or red*]. He denied having “a feel” but he had a look; she was shaved (pp 438-9).
He initially wanted to “root” Ms Bright when he assaulted her [as he had with LS], but he changed his mind when he dragged her across the road into the grass. He stated he decided that he had to kill her, because he didn’t want to get “pinged” for it and added that if she woke up while he was “fuckin’ her” she would have “spotted who it was” (pp 447-450).
He stated, after he was done with Ms Bright, he took off and went home where he had a shower, another beer, a sleep and washed his clothes (pp 445-6).
He subsequently worried about “it”; it was on the news for the next 12 months; He was thinking, “fuck, what have I done” (pp 457-8).*

Evidence of Dr Katie Seidler

Reports of Dr Katie Seidler, forensic psychologist, dated 7 November 2022 and 30 December 2022 were annexed to two of the affidavits of Mr Toshi Weller-Wong.^[39] Provisional psychologist, Ms Simone Tosson, completed psychometric testing with the accused on 24 October 2022 and Dr Seidler interpreted the results.
39. Sworn 14 December and 30 December 2022.
In written submissions, counsel for the accused drew attention to the following aspects of the first report (with the relevant paragraph references in the report footnoted).^[40]
40. AWS [99]-[116].

100   Dr Seidler observed that Mr Rumsby “impressed as a rather unsophisticated person intellectually” and he was “not particularly psychologically minded or reflective”. [41]
41. Dr Seidler’s report, 7.11.22, at [4].
101   Dr Seidler noted that Mr Rumsby claimed to have “repeated two years” in secondary school and attributed that to ongoing difficulties with “speech” and “listening”. He also reported being engaged in a “special education class” for two years in secondary school. [42]
42. Dr Seidler’s report, 7.11.22, at [26].
102   In 2016, Mr Rumsby was hit by a car as a pedestrian, as a result of which he was hospitalised. [43]
43. Dr Seidler’s report, 7.11.22, at [34], [106].
103   Dr Seidler set out Mr Rumsby’s account of his relationships with the undercover police officers as part of the covert operation. Mr Rumsby stated that initially he believed that the group was a “legit [redacted]”, and only later became concerned that they were “criminal” or “dodgy”. [44] This is consistent with the way the USCUT operated in the initial stages.
44. Dr Seidler’s report, 7.11.22, at [59]-[61].
104   In relation to his admissions to Mr Big, Dr Seidler states that:[45]
45. Dr Seidler’s report, 7.11.22, at [62].

“Mr Rumsby reported that after some time, he met the ‘big boss’ who was ‘pressuring’ him to ‘admit to something (he) didn’t do’ by way of the murder. Mr Rumsby claimed that he could not understand why they would want him to do this and was ‘not quite sure’ what to think of the ‘big boss’. Mr Rumsby claimed that the ‘big boss’ told him that he could not help Mr Rumsby nor could Mr Rumsby be involved in their activities if he was in gaol for murder. This apparently prompted Mr Rumsby to ‘make up a story’ about his involvement in the offences. Mr Rumsby claimed that this was motivated by a desire to continue being involved with the group so that he could earn more money.” (Emphasis added)
105   Dr Seidler administered the Million Clinical Multiaxial Inventory (MCMI-IV) to Mr Rumsby to assess his personality functioning and mental health. Mr Rumsby’s responses suggest “a very high level of disclosure”, associated with “a desire for negative impression management” and “an exaggeration of personal difficulties”. Dr Seidler comments that the profile obtained from the MCMI-IV is “clearly inconsistent” with his account at interview. [46]
46. Dr Seidler’s report, 7.11.22, at [72], [82].
106   Ms Tosson administered, and Dr Seidler interpreted, the Weschler Adult Intelligence Scale (WAIS-IV) to assess Mr Rumsby’s intellectual functioning. Overall, Mr Rumsby’s intellectual functioning was in the “low average range, and above 12% of the normative sample”. [47]
47. Dr Seidler’s report, 7.11.22, at [85].
107   Mr Rumsby’s verbal comprehension index, which measures word knowledge, verbal reasoning skills and general knowledge, scored in the range of a mild intellectual disability, being above only 1% of his aged peers. He scored in the average range for perceptual reasoning (related to non-verbal reasoning). His working memory was in the low-average range, above 23% of the normative sample. His ability to process information rapidly was in the low-average range, at the 18th percentile. [48]
48. Dr Seidler’s report, 7.11.22, at [86].
108   Relevantly, in relation to those scores Dr Seidler found that the variation in Mr Rumsby’s scores is “highly unusual” and:
“… suggests it is likely that Mr Rumsby suffers with a specific deficit in the area of verbal intelligence, which is consistent with his account of early speech and language difficulties.” [49]
49. Dr Seidler’s report, 7.11.22, at [87].

109   Testing in relation to Mr Rumsby’s memory is set out at [88]-[89].
110   Dr Seidler concluded that Mr Rumsby “experiences some disturbance in areas of his executive functioning”. Importantly, Mr Rumsby’s responses to questioning on this topic were “consistent” and “yielded a valid and interpretable profile”. [50] [I interpolate that this was said specifically in relation the administration of the “Behaviour Rating Inventory of Executive Function (BRIEF)”.]
50. Dr Seidler’s report, 7.11.22, at [91]-[92].
…
112   Dr Seidler summarised the results of psychometric testing, including that:
“Of most significance, testing would suggest it is possible [51] for Mr Rumsby to be suffering with a specific deficit in the area of verbal intelligence. This is commonly associated with difficulties expressing oneself verbally and also in understanding complex information presented verbally. Further to this, impaired verbal skills tend to be associated with impairments in self-regulation and moderation through learning due to limitations in ‘inner speech’. This may also be associated therefore, with impulsivity, poor decision making and impaired reasoning.” [52]
51. At CWS [111], the Crown also quoted from this paragraph of Dr Seidler’s report but emphasised the word “possible”.
52. Dr Seidler’s report, 7.11.22, at [96].

113 Dr Seidler sets out that Mr Rumsby’s childhood exposed him to a number of “risks known to compromise the development of a child” and that he “does not have any community supports”. Further, Dr Seidler described Mr Rumsby as a “socially isolated individual”. [53]
53. Dr Seidler’s report, 7.11.22, at [108].
114 Dr Seidler summarises Mr Rumsby’s account of his engagement with the undercover officers, including that:
“… he claimed to have felt pressured and coerced by these people to disclose his purportedly fabricated involvement in the offences currently before the Court, but Mr Rumsby also claimed to have believed these people were genuine and legitimate and he reported to have been motivated by the financial gain for him of continued involvement with the criminal gang.” [54]
54. Dr Seidler’s report, 7.11.22, at [112].

115 Finally, Dr Seidler’s opinion in response to specific questions is set out [in] her report. Dr Seidler found that Mr Rumsby appears to have a deficit in his verbal intellectual functioning which has likely resulted in difficulties including in relation to his “comprehension, decision making, reasoning, and self-regulation”. Specifically, Dr Seidler opines that: [55]
55. Dr Seidler’s report, 7.11.22, at p31.
“With respect to his experience of being involved in a covert police operation, a deficit in verbal intelligence may have rendered Mr Rumsby more vulnerable to being influenced by the undercover police operatives, in addition to being limited in his consequential reasoning.”

And
“… given Mr Rumsby’s developmental history and personal/social circumstances at the time of the covert operation, it is likely that, at least in part, his motivations in engaging with the operatives can be explained by a desire for acceptance and social inclusion.”

116 In relation to the repeated offer of inclusion in the “family”, the suggestion of protection from criminal prosecution, and the nature of the duration of the questioning, Dr Seidler states: [56]
“There is no doubt that these factors served to create some sense of pressure and obligation for Mr. Rumsby with respect to requests made of him to disclose his involvement in the murder presently before the Court. The interview Mr. Rumsby had with the ‘big boss’ would have been a highly charged and pressured situation with the boss speaking with Mr. Rumsby in such a manner as to reinforce the pressure of expectation. Mr. Rumsby does not present as someone who is sophisticated enough, either psychosocially or with respect to his verbal intellectual skills, to have successfully navigated the pressure of this situation independently.”

Crown submissions concerning Dr Seidler’s reports ^[57]

56. Dr Seidler’s report, 7.11.22, at p31.

57. CWS [101]-[112].

The Crown submitted that the history provided by the accused to Dr Seidler should be subject to a limitation pursuant to s 136 of the Evidence Act; that it not be evidence of the truth of the various assertions of the accused set out therein. I do not propose to make such an order but I indicate the way in which I have regard to the history within the report below (at [89]-[98]).
Reference was made to two aspects of paragraph 4 of the first report but to place them in context I will quote the entire paragraph:

Mr Rumsby impressed as a rather unsophisticated person intellectually and he was not particularly psychologically minded or reflective. I also note that he demonstrated some speech articulation difficulties. There was no evidence of gross neurocognitive disturbance. His account was confusing and often contradictory and when challenged, his account then shifted. He appeared to have limited insight both into this and in relation to his difficulties. I also note that the findings of personality and mental health testing were inconsistent with Mr Rumsby’s account at interview. Overall this gave the impression that Mr Rumsby was impression managing and it was difficult to form a coherent view on the basis of his account at interview.

The Crown referred to the following results of the psychometric testing:

Found evidence of impression management and the accused was seeking to present in an attractive light and an exaggeration of personal difficulties.
The accused is a person who will have difficulties trusting others.

The Crown also referred to answers provided by Dr Seidler at the end of her first report to questions specifically posed for her. They included:

Mr Rumsby was not suffering with a diagnosable psychological condition or impairment that may have impacted on the manner in which he engaged with the covert operatives.
He had not sustained a traumatic brain injury of any note that would have impacted on his functioning at the time he was subject to a covert operation by NSW Police.
Dr Seidler did not consider any executive functioning difficulties the accused may have, based on his account and psychometric testing, would have impacted him in any significant way with respect to his engagement and experience of the covert police operation.
The accused does not have any significant impairment or concern with respect to memory.

The Crown challenged the credibility of the accused’s account to Dr Seidler in that it included the following:

Mr Rumsby claimed to have vehemently believed that the covert operatives with whom he was engaged were part of a legitimate [redacted]. He claimed that it was not until these people began to put pressure on him to make disclosures in relation to the murder that he felt uncertain and perhaps vulnerable to being threatened.

It was submitted that this was at odds with the accused’s involvement with the operatives in the supposed [redacted], all prior to any question having been raised as to his possible involvement in a murder. In submissions in reply, the accused accepted that this submission by the Crown was “plainly available on the evidence”. [58]
58. AWS in Reply [19].
As to the final quotation from the first report of Dr Seidler appearing in paragraph 116 of the accused’s written submissions (above at [81]), the Crown contended that the audio-visual recording of the meeting with the boss (UCO 3) on 11 August 2020 showed the accused to be “alert, oriented in time, understanding the conversation as it flowed, and being responsive to questions asked and comments made by UCO 3”.

Observations about Dr Seidler’s reports

In relation to Dr Seidler’s opinion that the accused “does not present as someone who is sophisticated enough, either psychosocially or with respect to his verbal intellectual skills, to have successfully navigated the pressure of this situation independently”, the Crown referred to a statement by UCO 4 of 10 January 2023 in which he set out various observations and opinions as to the intellectual capacity of the accused. Objection was taken to this on the basis that it was impermissible lay opinion. I uphold that objection insofar as the statement contains opinions but on a more fundamental basis of relevance in that it would be equally as open to a tribunal of fact to form its own opinions based upon much the same material: Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 at [12]-[13].
In my fact-finding role in the context of the present issues, I am persuaded by the factual material referred to in the statement of UCO 4 (putting aside the opinions), but even more so by the content of Annexure 8 in the Crown bundle^[59] and the general impression I gained from listening to hours of covert recordings over more than two days of the pre-trial voir dire, that the opinions of Dr Seidler may overstate the true position.
59. Table of Transcript Extracts, being a “Selection of quotes demonstrating (a) Initiative; (b) Enthusiasm; (c) Lack of oppression/freedom of choice”.
Dealing broadly with Dr Seidler’s opinions, it is difficult to know how much weight to place upon them given they are based rather significantly not only upon the results of psychometric testing but also to some extent on the version of events provided by the accused.
Dr Seidler said the accused’s account was “confusing and often contradictory and when challenged, his account then shifted”. [60] One example of that might be the accused telling Dr Seidler that he “vehemently believed” the UCOs were only engaged in a legitimate business activity, [redacted]: see above at [86]-[87].
60. Dr Seidler’s report, 7.11.22, at [4].
Another example of confusion is Dr Seidler’s opinion that “it is likely that, at least in part, his motivations in engaging with the operatives can be explained by a desire for acceptance and social inclusion” whereas she had recorded him having told her “he could not account for why he agreed to [the initial approach by a UCO] other than he was focussed on the money he was being offered” and that he made up the admissions to UCO 3 because he was “motivated by the desire to continue being involved with the group so that he could earn more money”. [61]
61. Dr Seidler’s report, 7.11.22, at [60], [62].
In relation to the psychometric testing, doubt as to the accuracy of the version the accused provided Dr Seidler is raised by the results of the Millon Clinical Multiaxial Inventory (MCMI-IV) that suggested “a very high level of disclosure, which is typically associated with a desire for negative impression management, consistent with an exaggeration of personal difficulties”.^[62]
62. Dr Seidler report, 7.11.22, at [74].
There is also a question as to the reliability of the accused’s responses to interview and to testing where, in addition to her remarks about impression management, Dr Seidler reported that his MCMI-IV profile suggested he was:^[63]

… experiencing a severe psychotic episode characterised by delusional thinking, fragmented emotions and bizarre behaviour. The delusional disorder is seemingly severe on the basis of his responses, such that Mr Rumsby likely suffers from ideas of reference and grandiosity and may be prone to aggressive outbursts and uncontrollable rages. Moreover, he endorsed severe levels of depression, which is likely associated with intense dysphoria, despair and suicidality. Within this context, Mr Rumsby is likely to be irrational and feel as if he is powerless to self-regulate.
63. Ibid at [78].

Whether this was a result of the accused’s “negative impression management” or a correct indication of his mental condition is unclear but in either case it raises a question about the reliability of the account he provided Dr Seidler.
Putting that aspect aside, there is in any event a degree of controversy about the accuracy of the history provided by the accused to Dr Seidler. Evidence, such as the examples from the covert recordings that the Crown claims demonstrate the accused’s initiative, enthusiasm and lack of oppression or freedom of choice,^[64] provides a lot of scope for testing the accused as to the history upon which Dr Seidler’s opinions were at least partly based. There was no cross-examination of the accused in relation to these matters as he did not give evidence in the voir dire hearing. In these circumstances, I am very cautious about placing much weight on this history and opinions based partly or completely upon it. Counsel for the accused appears to accept this.^[65]
64. Crown bundle, Annexure 8.
65. T86.5.
The same can be said about a conclusion of Dr Seidler that appears to have been influential in her overall formulation, that the accused was a “socially isolated individual”. Whilst there is evidence indicating he had limited social outlets, appeared to want to be liked and seemed to have few friends, [66] there was evidence suggesting it may not have been to the extent portrayed which provides another controversy presently incapable of resolution.^[67]
66. T84.40; the “Unsolved Serious Crime ‘Background Information Questionnaire’”, annexure B to the affidavit of Toshi Weller-Wong of 25 January 2023; concession by UCO 3 in evidence that he had been told the accused’s social contacts were limited (T36.5).
67. For example, Crown bundle, Annexure 16; annexure C to the affidavit of Mr Weller-Wong of 24 January 2023.
For completeness, I note that nothing was said in submissions about Dr Seidler’s second report. That is likely explained by the fact that there is nothing significant in it.

Report of Kim Ora, forensic psychologist

The accused’s documentary material included a report produced in response to a subpoena by Ms Kim Ora, forensic psychologist, dated 28 May 2019. [68] Ms Ora was employed in the Criminal Psychology Unit of the NSW Police Force. The report was prepared for the Unsolved Homicide Unit to send to the undercover branch at the point where the possibility of pursuing an USCUT operation was being considered. A second purpose of the report was to have an assessment of the current risk of sexual offending by the accused if such an operation was to be carried out. [69]
68. Annexure B to the affidavit of Mr Weller-Wong of 24 January 2023.
69. T68-9.
The accused’s written submissions in reply quoted the following passage from Ms Ora’s report in rebuttal of the Crown’s submission that the accused “had no particular vulnerabilities which were exploited to coercive effect”:[70]

“‘…. His social network is primarily comprised of criminal associates. His general offending is primarily related to drugs and he appears to be quite financially motivated in relation to his offending. It is noted that he is anticipating a pay out as compensation for his accident and once this is received his financial needs may be addressed in the short term, [redacted]’’. (Emphasis added).
70. AWS in Reply [32].

This does not appear to advance the accused’s case. It would be more to the point to identify the actual conduct of the police in their interactions with the accused. [Redacted], does not establish anything of relevance to the objections raised.

The bases of the objections under the Evidence Act and s 189

As indicated at the outset, the accused objects to the Crown adducing evidence of the admissions alleged to have been made by him on 11 August 2020 pursuant to s 84, 85, 90 and 138 of the Evidence Act.
Section 189 of the Evidence Act is concerned with “The voir dire” and subs (3) provides:

(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.

The accused submitted that numerous aspects of his admissions were “demonstrably unreliable” which is relevant to s 90. This is said to be evident from a comparison with objective evidence from the crime scene, summarised in an annexure to the written submissions.^[71] It was submitted that this exercise did not give rise to any consideration of the truth or untruth of the admissions; accordingly, the issue was not being “introduced by the defendant”.^[72]
71. AWS, “Annexure 3 – Reliability”.
72. AWS [121]-[122].
It would be an unusual case in which the truth/untruth issue could be introduced in the context of a s 84 objection to the admissibility of admissions. It may have relevance to ss 85 and 90: R v Tarantino (No 6) [2019] NSWSC 1174 at [154] (Beech-Jones J).
The four bases of the accused’s objection will now be dealt with in turn.

Evidence Act, s 84

The submissions in relation to the objection pursuant to s 84 of the Evidence Act were the most wide-ranging. The section is in the following terms:

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

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

Annexure 16 in the Crown bundle provides a summary of the accused’s “employment, familial and social factors”. It indicates that he has not led a life of social isolation. He was usually in employment up until he sustained a neck injury in 2016. He was in domestic relationships from 1988 to 1994, 1997 to 1998, and from 1999 to 2017. There were conversations with UCO 4 during the developmental phase in which the accused referred to friends, either in relation to his quest for accommodation or generally. The Crown also quoted from a transcript of the scenario on 6 February 2020 in which the accused referred to being in a group of three, he and two “best mates”[115] . Finally, he apparently told police investigating an unrelated matter in 2013 that he had “heaps of friends”. [116]
115. CWS [167].
116. Annexure 16, p3.
There was an issue between the parties as to whether the facts in this case were different to those in Deacon v The Queen because in that case:

[T]he applicant was regularly told that he could cease his involvement at any time. He consistently indicated a willingness to be involved and voluntarily participated in the activities associated with each scenario. During the course of the meeting with the ‘boss’, the applicant was given opportunity to leave the meeting without discussing the circumstances of the deceased’s disappearance.

There is merit in the Crown’s contention that any distinction that there might be is not of substance. In the present case during the “developmental phase” of the operation, the accused was regularly asked if he wanted to continue, and it was made clear that he did not have to participate in all “jobs”. He was shown (through the UCOs dealings with other members/clients) and told that he was free to leave at any time.
As noted, Annexure 8 in the Crown bundle contains extracts from covertly recorded conversations during the developmental phase and includes instances of the accused being told his participation in the work of the organisation was not obligatory and that he could leave the organisation if he wished. The accused repeatedly responded by saying that he was enjoying it. [117] The scenario on 19 May 2020 whereby the accused saw how UCO 2 was told he was free to leave the organisation (for personal reasons) without recriminations is likely to have reinforced this point with the accused. He would not need to have been reminded of it by UCO 3 on 11 August 2020.
117. Scenario 6 & 7 on 27.12.19; Scenario 9 on 16.1.20; Scenario 10 on 24.1.20; Scenario 29 on 22.4.20; Scenario 32 on 7.5.20; Scenario 33 on 16.5.20.
It is correct for the accused to say that it was after the majority of the admissions had been made when he was asked at Gulgong whether he had confessed due to an “ulterior motive just to stay with the family”. (He answered in the negative.) However, he was asked a similar question in the apartment at [redacted], soon after he commenced making admissions concerning the murder. UCO 3 asked, “Are you telling me what you think I want to hear or are you telling me the truth?” The accused had been making admissions in response to non-leading questions as to how he killed Ms Bright by holding his hand over her mouth until she had stopped breathing. He was answering each question in a soft but solemn tone. He was sitting forward in a lounge with an elbow on his knee, his hand resting against the side of his face, appearing to be looking steadily at the ground in front of UCO 3. When this question was asked he immediately raised his head, looked directly at UCO 3 and replied, “Telling the truth”. [118]
118. CRT 187 (and see video at around time stamp 13.46.50).
Those were not the only times the need to be truthful had been impressed upon the accused, or that he had verified he had been truthful. UCO 3 said before any admissions were made about Ms Bright’s murder, “Now I don’t want you to make it up just to try and pacify me … The truth’s the only way we can sort this”. [119]
119. CRT 172.9.
The accused was also told a number of times that the truth was required because anything that was incorrect would not align with the facts established by the police. For example, at CRT 96.3, UCO 3 said, “I can’t fix what you’re not honest with”. At CRT 164.5, UCO 3 said that [redacted] depended upon providing facts that could be verified by the police. At CRT 177.3, UCO 3 said, “As long as those facts line up with the facts, what the jacks know”.
The third and fourth factors raised matters which are largely standard or commonly encountered features of a USCUT operation. Suspects are usually told that they are at imminent risk of arrest but that this can be avoided if they confess to the “boss”. It is unsurprising that the “boss” would purport to substantiate this imminent risk by claiming to have obtained internal police documents so that, as the accused submitted, the threat of arrest and charging would appear very real. [120] Suspects are usually offered the “stark alternative, having regard to the organisation’s power to solve problems”. [121] The latter is the point of the lengthy developmental phase of the operation.
120. AWS [160].
121. AWS [161].
The accused also argued that basal voluntariness was undermined by the strictures of the choice presented to him; the promise of advantage discussed in Tofilau v The Queen was accompanied by a calamitous alternative. The accused’s reference to the judgment of Gummow and Hayne JJ at [62] in fact points to the difficulty with this argument. Their Honours there said, “Rarely, if ever, would the test of ‘basal voluntariness’ exclude confessions where some hope of advantage (as distinct from fear of prejudice) was held out to the person who made the confession”. What was being suggested to the accused was hope of a single advantage: avoid the prospect of arrest by making a confession and thereby be able to enjoy a financial advantage by continuing to work with the gang. This is the way the accused saw it according to his statement to Dr Seidler that his (made up) confession “was motivated by a desire to continue being involved with the group so that he could earn more money”. [122]
122. AWS [104], [162].
The prospect of [redacted] (the fifth factor) was not something he mentioned specifically to Dr Seidler as a reason for his confession. As just mentioned, his stated hope of advantage was to continue working with the gang and thereby earning more money. Be that as it may, counsel for the accused refined this point during the course of oral submissions to argue that its significance was more to do with [redacted]. The difference between that and financial gain through continued involvement in criminal activity seems flimsy. The accused likely foresaw large sums of money were to be derived from future criminal activity. He had seen [redacted] and he was keenly interested in [redacted].
As to the attempt to distinguish between the two by contending there was a more direct connection between [redacted], the Crown made the point [123] that there was a direct connection in Tofilau v The Queen (at [152]) between the confession and the promise of $10K being held in a safety deposit box.
123. T116.35.
More is said below about the [redacted] issue in dealing with the objection under s 138 (at [211]ff).
As to the “both or none” factor, UCO 3 explained in his evidence that this was not something that was done to maximise pressure to get an admission. The goal was to ascertain the truth, not simply to obtain admissions (although the comments of the UCOs after the accused had been arrested and when they probably thought the recording equipment had been turned off casts a doubt over that claim). In any event, to maintain the credibility of the ruse it was necessary for the UCOs to seek the elimination of “both”; elimination of only one would not have achieved anything. [124]
124. T58.10.
I note for the sake of completeness that during the course of the hearing both parties were able to identify a case in which an USCUT style operation had been conducted in relation to a person suspected of multiple crimes. Director of Public Prosecutions v Ghiller [2003] VSC 350 concerned a prosecution for a large number of armed robberies and related offences. The USCUT operation extended to them all and they had the appearance of each having been committed by the accused and his uncle. Standage v State of Tasmania [2017] TASCCA 23 was concerned with two murders committed 14 years apart with the prosecution relying upon tendency and coincidence evidence linking the two. In neither case was the point now taken by the accused as to the “both or none” factor raised for determination.
My conclusion in relation to this factor is that it is something that may have significance in a case in which an accused person accepts their guilt in relation to one matter but denies it in relation to another. In this trial it will be the defence case that the accused is not guilty in respect of each matter. It will be necessary that the jury be directed as to separate consideration to each count in the indictment but the issue does not otherwise have the degree of significance that the accused contends.
The foregoing addresses the six specific factors raised in argument by the accused in relation to the s 84 objection. There are some further observations to be made.
The conduct of the UCOs in this case was largely aligned to that which was involved in the cases to which reference has been made. As Johnson J described,[125] Tofilau v The Queen made clear that, “the very nature of the strategy involves the use of pressure over a period of time, in circumstances where a denial of guilt by the suspect is made which is replaced ultimately by an alleged confessional statement. The … strategy involves exhortation of the suspect to tell the truth, so that a significant measure of persuasion plays an important part in the process.” That is what happened here.
125. In R v Kilincer (No 2) at [148].
I am persuaded that the “confessions” of the accused were not influenced by oppressive conduct. Adopting the reasoning of the Northern Territory Court of Criminal Appeal in Deacon v R at [32], I am satisfied on the balance of probabilities that they were the consequence of perceived psychological pressure which was a response to his predicament. There was nothing burdensome or unjustly harsh about the police conduct. It certainly did not involve the exercise of authority in a cruel or unjust manner. There was no unlawful use of power.
The accused was subject to psychological pressure, but there was nothing “oppressive” about the way that occurred. The accused does not suggest there was any infringement of his rights and none are apparent. I am not satisfied that there was anything in the accused’s personal characteristics that rendered him susceptible to coercion or oppression to any material degree.
I am further satisfied that the accused knew that he did not have to stay and he did not have to speak. He chose to remain and to speak in the exercise of his choice to remain with the “gang” in the hope of gaining a financial advantage from doing so.
The objection to the admissibility of the evidence pursuant to s 84 of the Evidence Act fails.

Evidence Act, s 85

Section 85 is in the following terms:

85 Criminal proceedings: reliability of admissions by defendants
(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant—
(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or
(b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
Note—
Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216.
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account—
(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and
(b) if the admission was made in response to questioning—
(i) the nature of the questions and the manner in which they were put, and
(ii) the nature of any threat, promise or other inducement made to the person questioned.

The term “investigating official” in s 85(1)(a) is defined in the Dictionary to the Evidence Act as follows:

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

Both limbs of the definition exclude officers/persons engaged in covert investigations such as the UCOs were in the present case. The accused thereby accepts that s 85(1)(a) has no application. [126]
126. AWS [175].
The accused contends that s 85(1)(b) does have application. He argued that the admission was made as a result of the act of another person (undercover officers including UCO 3 and UCO 1) who were, and who the accused knew, or reasonably believed to be, capable of influencing the decision whether a prosecution of the accused should be brought or should be continued. [127]
127. AWS [189]-[190].
It was submitted that the undercover officers UCO 3 and UCO 1 were each in fact capable of influencing the decision whether a prosecution of the accused should be brought or continued and the accused reasonably believed that UCO 3 and UCO 1 had that capability. In either case, the fact the accused did not know, or misapprehended the manner in which, or the basis upon which UCO 3 and UCO 1 might have influenced such a decision was said to be beside the point. [128]
128. AWS [193]-[194].
It was the accused’s contention that the choice of the legislature expressly to exclude covert operatives from the operation of s 85(1)(a) but not to do so in respect of s 85(1)(b) supported his contention that such an operative may be within the concept of “another person” in the latter. The Explanatory Note to the Evidence Amendment Bill 2007 (NSW) brought about amendments to sub-s (1) and stated that new para (b) “removes covert operatives from the ambit of the provision”. The accused argued that this was inconsistent with the actual amendment to the provision which did remove covert operatives from the ambit of the provision but only with regards to the scope of s 85(1) par (a). It was contended that Johnson J was in error in concluding otherwise in R v Kilincer (No 2) at [187]-[199].
The accused rhetorically asked whether a construction of s 85(1)(b) permitted the tacit insertion of a phrase such as “(except an undercover operative)” after the words, “as a result of an act of another person”, where no such phrase appears, and whether the content of extraneous material such as the Explanatory Note could permit such a construction. [129]
129. AWS [204].
There is no gap in the legislative provision and the reasoning of Johnson J does not involve having recourse to extraneous material to determine what Parliament meant to say as opposed to what in fact was said. There was simply no need to insert in s 85(1)(b) an explicit exclusion of covert operatives. A construction of the provision that yields an absurd conclusion that it extends to persons perceived by the accused to be capable of perverting the course of justice by illegally or improperly influencing a decision to prosecute, or maintain a prosecution, cannot be accepted. [130] The reasons for concluding that the undercover operatives in the cases considered by the High Court in Tofilau v The Queen were not persons in authority are analogous: see, e.g., Gleeson CJ at [13].
130. CWS [180].
For the reasons provided by Johnson J in R v Kilincer (No 2), s 85 cannot have application in the present case.
The Crown’s submissions in contending s 85 had no application included reference to a statement made in R v Esposito (1998) 45 NSWLR 442 at 459 about what s 85 is intended to cover:

The Section is concerned with the circumstances in which an admission is made by a defendant; specifically with those in existence during official questioning, but also with anything which may have been done (before the admission is made), by another person, who is capable of influencing the decision whether to commence or continue a prosecution of the defendant.
It is only if those circumstances are such as to make it unlikely that the truth of the admission was adversely affected, that it is admissible.

How that statement stands in the light of the 2007 amendments to s 85 was not developed in the submissions.
In the event that it should elsewhere be determined that s 85 does have application, mention should be made of the list of matters the accused contended were relevant to whether the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admission was adversely affected:

The accused's low verbal intelligence, below average intelligence and socially isolated existence: s 85(3)(a).

The persistent importuning of the accused, which has been the subject of submissions under the s 84 objection: s 85(3)(b)(i).

The persistent leading and suggestive questioning, which has been the subject of submissions under the s 84 objection: s 85(3)(b)(i).

The threat of social exclusion and immediate arrest: s 85(3)(b)(i).

The demonstrable impact of the [redacted]: s 85(3)(b)(ii).

The demonstrable impact of a promise of no proceedings and no arrest: s 85(3)(b)(ii).

Aside from item (c), these matters have been considered in the context of s 84 and there is nothing further to add. It is appropriate to say something here about item (c) concerning “leading and suggestive questioning”. This is something that is more relevant to reliability under s 85 than it is to whether there was oppressive conduct under s 84.
It is not the case that asking leading or suggestive questions will have the automatic consequence of exclusion of the evidence for unreliability under s 85. It may be the case that such questions are asked to a degree that does not warrant exclusion but remains a matter to be considered by a jury.
Asking a suspect leading questions may be legitimate for a variety of reasons. It may be necessary to steer the suspect towards, or back to, a particular topic. It may be acceptable to remind the suspect that they have previously said something different. It may also be appropriate when the suspect has said something on a relatively innocuous topic that is obviously wrong, or they are having difficulty remembering something that they have previously articulated. It may also be necessary to incorporate into the conversation some supposed knowledge by the “boss” concerning the crime to reinforce the fact that the boss has inside information which suggests the suspect has yet to tell “the truth”.
It requires an evaluative judgment to determine whether asking leading questions concerning matters of controversy yielded answers the truth of which was adversely affected. The accused provided a table with the title “Suggestions” which was annexure 4 to his written submissions. It does not purport to be a complete list of all of the questions the accused might categorise as suggestive or leading. I do not intend to go through and comment on every item, but simply to say that it should not be concluded that they are of the nature or extent that they support exclusion pursuant to s 85.

In short, s 85 does not apply. If it did, upon consideration of each of the six issues argued by the accused the evidence is admissible because the circumstances in which the admissions were made were such as to make it unlikely that their truth was adversely affected. (More is said about reliability in the section which follows.)

Evidence Act, s 90

Section 90 of the Evidence Act is in the following terms:

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.

The accused submitted that it would be unfair to use the evidence having regard to the specific circumstances in which the admissions were made. The nature of the questioning and the scenario as a whole did not carry hallmarks of reliability and truthfulness which were apparent in cases such as Deacon v The Queen, R v Weaven (Ruling No 1), and R v Kilincer (No 2). [131]
131. AWS [222].
The accused correctly noted that he bore the onus of proving that it would be unfair to him to use the evidence: Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 at [63] (Gleeson CJ and Heydon J). It was also noted that unreliability is a factor (but not exclusively so) affecting the fairness of the use of an admission: R v Swaffield (1998) 192 CLR 159; [1998] HCA 1 at [78] (Toohey, Gaudron and Gummow JJ).
It was submitted that the admissions are not reliable “because the manner in which they were obtained casts real doubt over their reliability, given that they were accompanied by persistence, inducement and a sense of urgency. … They are accompanied by a pervasive degree of uncertainty and vagueness, and, as is demonstrated in Annexure 3, particular details are demonstrably wrong.” [132] That annexure to the accused’s written submissions (as amended with reference to the sources of the evidence) is a table of admissions alleged to have been made by the accused which is said to be inconsistent with the physical evidence. (It may be noted that the Crown also provided a table of things the accused told the police, comparing them with the known facts, which put matters in a somewhat less negative light.) [133]
132. AWS [228]-[229].
133. Annexure 12.
The accused anticipated an argument to the following effect. He was aware that he was being asked to provide a truthful confession, something that would match the detail that would have been revealed in the police investigation and so he would have provided as much accurate detail as he could. He sought to address it with the submission that it did not make sense that he was “economical” or downright untruthful with his version of events or about what took place. It was contrary to his interests to maintain a partial ruse while admitting to the basal aspects of the offending. [134]
134. AWS [236].
The underlying premise for this submission is that the accused is innocent in respect of the crimes involving both LS and Ms Bright. That is, of course, the defence case and it is trite to note that the accused is presumed to be innocent. Those matters do not detract from the potential alternative explanation for the unreliability of some of the accused’s admissions: that because of his consumption of alcohol on the nights in question and the concealment of his guilt for the subsequent 21 years, his memory of some matters of detail has become faulty. [135] In other words, it is not the circumstances in which the admissions were made that have led to some of them being vague, imprecise or inaccurate. There is also a possibility that the accused retained some residual reluctance about admitting to all of what he did in respect of LS and Ms Bright.
135. T107.30.
Additionally, it will be open to a jury to consider that the accused had at the very least the intelligence and wit to realise that proffering anything to UCO 3 and the others simply because he thought it was what they wanted to hear, regardless of its correctness, ran the risk that he would not see his goal fulfilled: “to continue being involved with the group so that he could earn more money”. [136] In other words, he would have been motivated to be as accurate as the limits of his memory would allow.
136. Dr Seidler’s report, 7.11.22, at [62].
The accused also argued that there is no esoteric knowledge disclosed by the accused, something which only the true perpetrator would have known. R v Cowan; ex parte Attorney General and R v Weaven (Ruling No 1) were cited as examples of where that was the case. [137] However, as Johnson J pointed out in R v Kilincer (No 2) at [207] (and the accused conceded [138] ) the existence of such a feature is not a precondition to admissibility or to a conclusion that admissions are capable of being found reliable by a tribunal of fact.
137. AWS [245]; T89.25.
138. T89.25.
In response to that point the Crown contended there was a piece of “esoteric knowledge” disclosed by the accused, that the deceased’s pubic area was shaved. [139] This is indicated to be the case in the crime scene photographs. The accused responded by submitting that the answer came in response to a leading question:

P3:   Was she shaved, mate?
V1:   Yeah.
P3:   She was?
V1:   Yeah.
139. CRT pp439-440.

The question may have been leading in a strict sense but it left open the possibility of an answer that was either affirmative, negative, or neutral (“I don’t know”, “I don’t remember” or “I’m not sure”).
The accused also challenged the proposition that the deceased’s pubic area was shaved and referred to certain evidence in support of the negative inconclusiveness on the issue. I am not persuaded that a negative finding can be made on the evidence available to the Court at this point. It seems to be an issue that is open to a jury to consider.
A final point made by the accused was that there was nothing he said or about his demeanour that indicated an “unburdening” had occurred as Johnson J had inferred in R v Kilincer (No 2) at [75], [78]. This is tantamount to asserting a fallacy, that the absence of a positive factor indicates the opposite. I have mentioned previously (at [163]) how the accused appeared in the video at the time he was confessing to UCO 3 the murder of Ms Bright. There is nothing at that point, or at any other time in which he is visible (i.e. not at Gulgong) that supports a conclusion that he was dishonestly or recklessly confessing to crimes he did not commit. He gave an appearance of being serious about what he was saying which is capable of being regarded by the jury as having an air of credibility. (Whether the jury will form such a view is, of course, not for me to say.)
It would be open to the jury in this case to take a selective approach in considering which parts of the accused’s admissions are reliable and which are not. That was the conclusion reached by Hamill J in R v Simmons; R v Moore (No 2) [2015] NSWSC 143 at [131] and is apt in this case. The jury will need to be directed accordingly.
The basis upon which a discretion may be exercised to exclude the admissions pursuant to s 90 of the Evidence Act has not been established.

Evidence Act, s 138

The accused contended that admissions obtained following an “offer” or “olive branch” should be excluded as a matter of discretion pursuant to s 138:

138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning—
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account—
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

The “offer” or “olive branch” is a reference to a point about three hours into the covertly recorded conversation on 11 August 2020, time stamped 12.43.30, when UCO 3 raised the prospect of [redacted]. [140] [Redacted] UCO 3 [redacted]. As UCO 3 put it:

[Redacted].
140. CRT 163-4.

The accused pointed to material produced not long before the pre-trial hearing which indicated that “the accused was, at all relevant times, motivated by financial reward and status, and the police reasonably believed this to be the case”. [141]
141. Further AWS [5].
The objection is described as follows:

The objection arises now because s 138(2)(b) deems evidence to have been obtained ‘improperly’ if an admission is made during questioning, if the person conducting the questioning knowingly makes a false statement, knowing that making the false statement was likely to cause the person to make an admission. Even if the Court does not consider that s 138(2)(b) is engaged, it is submitted that for the reasons below the ‘offer’ was nonetheless improper.

The “impropriety” was said to be because “police knew, or reasonably ought to have known, that the false statement, namely, the terms of the ‘offer’, was likely to cause the accused to make the admission”. [142]
142. Further AWS [12].
The accused referred to Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1 at [13] where the High Court observed that s 138 is not confined to evidence obtained by the improper or illegal conduct of the police.

Consideration

The proposition that the accused was motivated by financial reward and status derives from two documents. [143] One included the opinions of a psychologist, Ms Ora, over a year earlier:

Mr Rumsby is a low-level opportunistic offender that appears to participate in criminal activity for personal and financial gain primarily through participating in drug related activity. …
His general offending is primarily related to drugs and he appears to be quite financial motivated in relation to this offending. [Redacted].
143. Further AWS [2]-[4].

The other document was a transcript of a covertly recorded telephone conversation between the accused and an associate on 23 June 2020. It included the accused referring to he and UCO 4 doing a “big job”, “that’s the plan. $800,000 to a Mil. … I’ll get a hundred G out of it … Or I could end up with three hundred thousand.” [Redacted]. [144]
144. T54.20, 60.10.
The proposition the police reasonably believed that the accused was motivated by financial reward and status is based upon an inference that police were aware of the contents of these documents and had drawn that conclusion. There was no evidence to that effect. Although UCO 3 [redacted], he specifically denied that he “had an awareness that [the accused] was motivated by financial gain”. [145] He explained: [146]

The whole scenario is based on him assisting our criminal organisation and in return, coming into our organisation and getting paid for his work. The money was dependent on the level of criminality that he was involved in during that. I concede that I said those things [redacted]. [147]
145. T52.10, 54.45, 55.20, 60.25.
146. T54.5.
147. T54.5.

The whole concept of an USCUT involves deception of a suspect with false statements. As mentioned earlier (at [31]), Kirby J described such operations in Tofilau v The Queen as follows:

Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest. There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice.

Gleeson CJ said (at [5]) that, “The use by the police of deception in the hope of eliciting admissions is not new” and that, “The use of undercover police operatives always involves deception. Such operatives are undercover precisely because they are trying to deceive somebody about something.”
Counsel for the accused was unable to provide a convincing answer when challenged at the hearing to explain the difference between suggesting to the accused he might [redacted] and suggesting that he would receive financial benefits for engaging in the future with the “family” in criminal activity. The telephone conversation referred to above (at [218]) demonstrates the substantial sum the accused aspired to receive for engaging in [redacted].
Assuming that the evidence of UCO 3 was incorrect and that the police were aware that the accused was motivated by financial gain, it is difficult to see what significance that might have. USCUT operations are based on a premise that the suspect will be interested in engaging with the gang in financially lucrative criminal activity.
Challenges to USCUT operations have all failed in appellate courts, including the High Court. In the case cited by the accused for the proposition that s 138 is not confined to the evidence illegally or improperly obtained by police, Kadir v The Queen, the judges of the High Court continued to say (at [14]):

Recognition that s 138 is not confined to evidence obtained by the improper or illegal conduct of the police raises a number of issues. Whether evidence has been obtained improperly in such a case is determined by reference to “minimum standards of acceptable police conduct”. The standard by which the court assesses the impropriety of the conduct of private individuals is less clear. That question is not raised in these appeals. (Emphasis added)

Tofilau v The Queen may be taken as an endorsement by the High Court of the USCUT methodology. Of course, it came with the rider, best described at the end of the judgment of Callinan, Heydon and Crennan JJ at [416] quoted above (at [32]). An USCUT operation conducted broadly in conformity with those that were considered in that case may be taken to comply with the “minimum standards of acceptable police conduct”.
Even if it was to be held that the admissions were obtained as a result of some impropriety, a consideration of the factors listed in s 138(3) strongly militates in favour of the evidence being admitted. The evidence is highly probative and of obvious importance in connection with a most serious case of murder and sexual assault. The “impropriety” was inadvertent and of minor gravity in the context of what the High Court and other courts have considered to be within the boundaries of acceptable police conduct in the other cases mentioned earlier. The accused’s submission that it would have been possible for the police to obtain the admissions without the “impropriety” [redacted] is probably right. On balancing all of these considerations the evidence would not be rejected.
The objection pursuant to s 138 has no merit.

Conclusion

The objection to the admissibility of the evidence was argued and has been dealt with on a holistic basis. There was no suggestion of any discrete aspects of the evidence being objectional for some more specific reason but if there is it should not be taken to be foreclosed by the ruling now made.
Evidence of the admissions made in the course of the USCUT operation is admissible.

**********

Endnotes

Decision last updated: 17 July 2023

Medium Neutral Citation:	R v Rumsby [2023] NSWSC 229
Hearing dates:	30 and 31 January 2023 1, 2 and 3 February 2023
Date of orders:	16 March 2023
Decision date:	16 March 2023
Jurisdiction:	Common Law
Before:	R A Hulme AJ
Decision:	Evidence of the admissions admissible.
Catchwords:	EVIDENCE – pretrial ruling – two counts alleging attempted choking to commit sexual assault and murder – admissions made to an undercover police officer during covert “scenario investigation” – unsuccessful attempt to distinguish this operation from others by reference to features such as tempting accused to be a reward seeker and requiring admissions to be made to “both or none” – objections under Evidence Act 1995 (NSW) on bases of admissions made as result of oppressive conduct (s 84), unreliability (s 85), unfairness (s 90) and improperly obtained (s 138) – evidence held admissible
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15E Crimes Act 1900 (NSW), s 578A Evidence Act 1900 (NSW), ss 84, 85, 90, 136, 138, 189
Cases Cited:	Deacon v The Queen (2019) [2019] NTCCA21; 282 A Crim R 303; Director of Public Prosecutions v Ghiller [2003] VSC 350; (2003) 151 A Crim R 148 Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299; [2010] NSWCA 34 In the Matter of an Application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881 Lauchlan v The State of Western Australia [2008] WASCA 227 R v Cowan; Ex parte Attorney General; [2015] QCA 87; [2016] 1 Qd R 433 R v Esposito (1998) 45 NSWLR 442 R v Jelicic [2016] SASC 57 R v Kilincer (No 2) [2021] NSWSC 829 R v Simmons; R v Moore (No 2) [2015] NSWSC 143; (2015) 249 A Crim R 82 R v Fesus (No 2) [2015] NSWSC 1467 R v Swaffield (1998) 192 CLR 159; [1998] HCA 1 R v Tarantino (No 6) [2019] NSWSC 1174 R v Weaven (Ruling No 1) [2011] VSC 442 Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 Standage v State of Tasmania [2017] TASCCA 23 Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39
Category:	Procedural rulings
Parties:	Rex (Crown) Craig Henry Rumsby (Accused)
Representation:	Counsel: L Carr SC (Crown) N Broadbent with Z Alderton (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Accused)
File Number(s):	234445/2020
Publication restriction:	This copy of the judgment has redactions for material caught by non-publication orders made during the proceedings.