R v Sidaros
[2019] ACTSC 177
•7 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sidaros |
Citation: | [2019] ACTSC 177 |
Hearing Dates: | 20‑21 May and 26 July 2019 |
DecisionDate: | 7 August 2019 |
Before: | Mossop J |
Decision: | See [90] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Admissibility – judicial discretion to admit or exclude evidence – evidence obtained by undercover police operatives – whether accused being “questioned” – whether statutory obligation to caution – admissions made voluntarily – admissions not made subject to coercion – admissions of high probative value – admissions made in relation to offences involving firearms and arson CRIMINAL LAW – EVIDENCE – Relevance – whether unfairly prejudicial – alleged attempted murder by member of outlaw motorcycle gang – evidence of rules and structure of organisation CRIMINAL LAW – EVIDENCE – Expert evidence of firearms and tool mark examiner – whether opinion may be expressed that firearm was the firearm involved or only similar to it |
Legislation Cited: | Crimes Act 1914 (Cth), ss 23A, 23B, 23F, 23S, 23V, Pt IC Crimes (Custody and Investigation) Act 1988 (Vic) Crimes Act 1958 (Vic), s 464A |
Cases Cited: | Em v The Queen [2007] HCA 46; 232 CLR 67 Honeysett v The Queen [2014] HCA 29; 253 CLR 122 X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 |
Texts Cited: | Attorney-General’s Review Committee, Second Interim Report: Detention Before Charge, Review of Commonwealth Criminal Law (1989) Explanatory Memorandum, Crimes (Investigation of Commonwealth Offences) Amendment Bill 1990 (Cth) Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 14th ed, 2019) |
Parties: | The Queen (Crown) Axel Sidaros (Accused) |
Representation: | Counsel T Hickey (Crown) S Odgers SC with S Pararajasingham (Accused) J Davidson (Commissioner of the Australian Federal Police) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) Australian Government Solicitor (Australian Federal Police) | |
File Numbers: | SCC 312 of 2018 SCC 313 of 2018 |
MOSSOP J:
Introduction
By Further Amended Application in Proceeding dated 15 May 2019, the accused, Axel Sidaros, seeks the following orders:
2.That the evidence obtained from, or in consequence to the Undercover Operation conducted by Undercover Operative (UCO 67469834 and UCO 23847098) on 1 September 2018 and 2 September 2018, not be admitted into evidence at the Accused’s trial.
…
4.The evidence of opinion expressed by Clive Roberts should be excluded.
5. The evidence of Anthony Macken should be excluded.
These are sought as advance rulings under s 192A of the Evidence Act 2011 (ACT).The application sought a number of other orders but those were not pressed.
I will deal with each of the aspects of the application separately.
Ruling in relation to admissions made during undercover operation
Background to the ruling in relation to admissions
The accused faces 13 charges in an indictment dated 29 January 2019. Those charges arise out of an incident that occurred on 28 June 2018 in which four persons entered upon a residential property. Shots were fired by two of the intruders. One of the intruders discharged a shotgun towards the victim, Peter Zdravkovic, who was in the house. The Crown case is that the accused was the person who discharged the shotgun. Mr Zdravkovic returned fire with a gun which he obtained from within the house. Mr Zdravkovic lost a finger as a result of the shooting. Three cars were also set on fire during the incident. Four discharged shotgun cartridges were found at the scene.
The Australian Federal Police (AFP) came to suspect that one of the offenders was the accused and that he was the one who had fired the shotgun. On 26 July 2018, a search warrant was executed at the home of the accused and, among other items, a shotgun was discovered. The accused, who was not arrested at that time, informed the police that the shotgun belonged to him. During the course of the execution of the search warrant the accused spoke to police, under caution, at some length about the allegations.
A forensic firearm examiner formed the opinion that the accused’s shotgun was the shotgun that discharged the cartridges on 28 June 2018. Subsequently on 30 August 2018, the accused was arrested at Melbourne Airport by Victorian police. The AFP in Canberra were informed. The Australian Capital Territory (ACT) Acting Deputy Chief Police Officer Scott Moller gave verbal approval to arrange the extradition of the accused to Canberra on a charge that he attempted to murder Mr Zdravkovic. He informed Detective Sergeant Stephen Ladd, the AFP officer in charge of the investigation into the incident of this at about 7.19pm. In that conversation, the two officers discussed the possibility of adopting an “undercover strategy” in respect of the accused. Detective Sergeant Ladd proceeded to prepare an “Undercover Program Assistance Request” form naming the accused as the “primary target” and stating under the heading “Objectives/Opportunity proposed undercover deployment” the following:
(a)“With extradition pending — an opportunity exists for a cell deployment before SIDAROS appears before the ACT Magistrates Court.”
(b)“Objective would be to [elicit] information/confirmation regarding SIDAROS’ involvement in the attempted murder/shooting of ZDRAVKOVIC.”
Under the heading “Key Issues/Legal/Controlled Ops” it was stated “There are no key issues identified at this time”.
On 31 August 2018, Detective Sergeant Ladd emailed the completed “Undercover Program Assistance Request” to the AFP Undercover Section at 1.13am. Later that day, a female controller within the section prepared a document seeking approval for the deployment of “2 x UCO [undercover operative] and 2 x UCC [undercover controller]”. That document was in largely the same terms as the “Undercover Program Assistance Request” form filled out by Detective Sergeant Ladd and included the same “objectives”. No reference was made to any “legal issues”. The deployment was approved by the Acting Manager of “Covert and Capability” for the AFP, Commander Simon Penny. Commander Penny understood that one of the objectives of the operation was to elicit information from the accused regarding his involvement in the attempted murder and he gave no consideration, in deciding whether to approve the deployment, to the right of the accused to decline to answer police questions following his arrest and extradition to Canberra. Approval was also given for the deployment by Acting Deputy Chief Police Officer Moller, although his approval only related to “resources and financial commitment”.
While approval was being sought for the undercover deployment, the process of organising Mr Sidaros’ extradition to Canberra continued. An information on oath was laid in the Magistrates Court of the ACT against the accused alleging that he attempted to murder Mr Zdravkovic. The Magistrates Court issued a warrant to arrest the accused to bring him before the court to answer that information. The warrant authorised and directed police officers of the ACT to arrest the accused and bring him before the Magistrates Court to answer the information and “to be further dealt with according to law”.
The next day, 1 September 2018, two AFP officers, Detective Senior Constable Samuel Norman and Detective Senior Constable Josh Waring, flew from Melbourne to Canberra with the accused. During that trip, Detective Senior Constable Norman repeatedly cautioned the accused that he “did not have to say or do anything but anything he did say or do may be used as evidence”. He also told the accused that he would not be asking him questions about the alleged offence “at that time as it was not appropriate, because he would not have access to a lawyer and we could not record the conversation”. Despite this, the accused did make statements to police in relation to the gun that had been found at his premises. The accused was brought to the ACT Watch House in Canberra. He was permitted to speak to a solicitor acting for him, Mr Saeedi.
At about 5.30pm on 1 September 2018, Mr Saeedi informed Detective Senior Constable Norman that the accused would consent to a forensic procedure but did not consent to be interviewed by the police. At about 5.40pm the undercover operative (“UCO William”) entered the cells in the ACT Watch House. The accused was not in the cells at the time. At about 5.45pm the accused participated in a forensic procedure. Prior to that, Detective Senior Constable Norman had informed at least one of the undercover controllers present at the Watch House that the accused had made it clear that he did not want to be questioned by the police. The forensic procedure was completed at about 6.05pm and the accused was placed in the cell area with UCO William.
Thereafter, on 1 September 2018 and 2 September 2018, the accused participated in conversations with UCO William and another undercover operative (“UCO Simon”). Those conversations were recorded and subsequently transcribed. No caution was given to the accused during those conversations. The male undercover controller accepted that one of the objects of the deployment was to “elicit information from the accused regarding his involvement in the attempted murder”.
Detective Sergeant Ladd gave evidence that he had a conversation with the female undercover controller on 31 August 2018 in which he referred “to the matters of Swaffield and Pavic” and “case law both for and against the type of operation we were about to conduct”. The female undercover controller did not recall such a conversation. She gave evidence that when informed that the accused was obtaining legal advice as to whether he would participate in a police interview she discussed with the other undercover controller the possibility that the accused might decline to participate. They agreed that the undercover operation should proceed since they believed that “there was case law that allowed us to continue with the operation”. She was subsequently informed that the accused had declined to participate in a formal interview and consistent with her conversation with the other controller “it made no difference to how [she] proposed to conduct the operation”.
The male undercover controller was asked whether the engaging in conversations with the accused was consistent with the guidelines applicable to undercover operations at the time. His evidence was that, having listened to the audio and read the transcripts, they were. Those guidelines prevent an officer being an agent provocateur but do not address the particular techniques to be adopted or what is to be done when the accused person has declined a formal interview with police.
The content of the transcripts
The conversations between the accused and UCO William and UCO Simon were recorded. The transcripts of those conversations were put into evidence on the application. The audio of the conversation was not put into evidence. Neither party placed reliance upon any features of the conversation such as its tone which might influence the approach to the evidence.
The following are portions of transcripts of conversations conducted between the accused and two undercover operatives which include admissions relied upon by the Crown.
[Transcript commencing 5:41pm on 1 September 2018]
…
[Page 3]
UCO WILLIAM: How are you doing, mate?
SIDAROS: Axel.
UCO WILLIAM: Will. How are you?
SIDAROS: Yeah, not bad, mate. What are you in for?
UCO WILLIAM: Oh, nothing that’ll stick on me anyway.
SIDAROS: Yeah.
UCO WILLIAM: (Laughing) Fingers crossed.
SIDAROS: Yeah.
UCO WILLIAM: What about yourself?
SIDAROS: Attempt murder.
UCO WILLIAM: Oh, fuck. You’re not mucking around are you.
SIDAROS: Mm.
UCO WILLIAM: Yeah. So what’s – what’s brought all that on then?
SIDAROS: Huh?
[Page 4]
UCO WILLIAM: What’s brought –
SIDAROS: Oh (indistinct)
UCO WILLIAM: Eh?
SIDAROS: (indistinct)
UCO WILLIAM: Oh, righto. Fair enough.
SIDAROS: Got court on Monday, so (indistinct)
UCO WILLIAM: Yeah, I’m crossing my fingers they’ll – they’ll give up on me and I might – hey?
SIDAROS: You got court on Monday as welI?
…
[Page 7]
UCO WILLIAM: Oh, right. What did they do - get you at the airport?
SIDAROS: Yeah. I was flying back to egypt
UCO WILLIAM: Oh, righto. Yeah. Oh, they must have had fucking people looking for you at the airports or something were they or?
SIDAROS: No (indistinct) my passport (indistinct)
UCO WILLIAM: Yep.
SIDAROS: (indistinct) took me into a room. And l said, you know – I was, like, “What’s going on?” And they were, like, “Oh, we’re just searching your bag for cash.” And I was (indistinct) and they’re like “No, no, nothing to do with that.”
UCO WILLIAM: Mm.
SIDAROS: I knew straight away what the fuck was going on. The next thing I know (indistinct) “You’re under arrest for attempted murder.”
UCO WILLIAM: Oh, fuck.
SIDAROS: Well, he fucking (indistinct).
(Television)
UCO WILLIAM: Yeah, so they must have had it on their computer or something did they?
SIDAROS: Yeah. I was (indistinct) so yeah.
UCO WILLIAM: Oh, righto.
SIDAROS: I wasn’t (indistinct) staying, like, two nights in Melbourne, then they got me.
UCO WILLIAM: Oh, yes, I do know they fuck around like old moles.
(Television)
SIDAROS: Yeah. They (indistinct) say “Here’s your fucking number.” I probably won’t get bail on a Monday. And then, fucking (indistinct) I don’t know, a week or three (indistinct) later.
UCO WILLIAM: Yeah.
SIDAROS: Hopefully.
UCO WILLIAM: Have they got much on you, you reckon, or?
SIDAROS: Oh, I don’t (indistinct).
[Page 8]
(Television)
UCO WILLIAM: Well, mate you might get bail. I don’t know.
SIDAROS: Huh?
UCO WILLIAM: You might get bail.
SIDAROS: First offence.
UCO WILLIAM: Yeah. Oh, well, you made it a good one. (Laughs) They got you for a good one.
SIDAROS: Yeah (indistinct).
(Television)
SIDAROS: Do you know Pete (indistinct)
UCO WILLIAM: Sorry, bro?
SIDAROS: Do you know Pete?
UCO WILLIAM: Pete?
SIDAROS: The Serb.
UCO WILLIAM: Down here?
SIDAROS: Yeah.
UCO WILLIAM: No.
[SIDAROS]: Serb Pete?
UCO WILLIAM: No, I don’t think so, mate.
SIDAROS: No?
UCO WILLIAM: No. No. I only come down for a bit of business and then fuck off again usually. Unfortunately they got me on the way out of town this time.
SIDAROS: Oh, so you’re not from here?
UCO WILLIAM: No. I drove down from Sydney earlier today.
SIDAROS: Oh, yeah.
UCO WILLIAM: They’re up there trying to figure out fucking whether they’re gonna charge me for having a bagful of cash or not at the moment. (Laughs)
SIDAROS: A bagful of cash?
[Page 9]
UCO WILLIAM: Yeah.
SIDAROS: Are they gonna (indistinct)
UCO WILLIAM: Oh, I don’t know what they’re gonna do, mate. Fucking, they’ve got to prove where the cash come from yet.
SIDAROS: Yeah. Well (indistinct) yeah.
UCO WILLIAM: Yeah, I don’t know how it works, mate. I’ve never – never been picked up anywhere interstate. Always – just a couple of times in Sydney for fucking little shit. Had a pretty good run so far. Oh, the watch house isn’t too bad usually. But, um, I don’t know about down here. It’s the first time here for me, so.
…
[Page 12]
UCO WILLIAM: So what the fuck happened for them to start coming after you for attempt murder?
SIDAROS: Oh, I don’t know (indistinct) shouldn’t say anything they’re probably recording
UCO WILLIAM: Oh, I don’t know if they do. I don’t think – I don’t they can fucking use it for anything. They’ve got to – got to read you your rights or whatever before they do any of that shit.
SIDAROS: Yeah. Oh, just, you know, like, yeah, I don’t want to (indistinct).
[Page 13]
UCO WILLIAM: No, It’s all right, bro.
(Television)
SIDAROS: Fucking (indistinct)
UCO WILLIAM: Yeah, they get a bit carried away sometimes don’t they.
SIDAROS: Yeah.
…
[Page 22]
SIDAROS: Oh no, I haven’t got a lawyer up there (indistinct) they fucking (indistinct)
UCO WILLIAM: Yeah.
SIDAROS: And so I called my dad and that was it.
UCO WILLIAM: Oh, righto. Just – would he get a hold of the boys in the club, or he’s not down with it?
SIDAROS: (indistinct)
UCO WILLIAM: Oh, well, it’s always better when you’re part of a crew that’ll look after you –
SIDAROS: Yeah.
UCO WILLIAM: – you know. Been pretty lucky with the mob I sort of work with up there. They’ve fucking looked after me a couple of times when it started to go south, and sorted it out, so.
(Television)
SIDAROS: Yeah (indistinct) half the chapter probably would probably wouldn’t. The other half (indistinct) like the pres (indistinct)
UCO WILLIAM: Yeah.
SIDAROS: Fucking (indistinct).
UCO WILLIAM: Is there a bit of a split there at the moment or something is there or?
SIDAROS: Oh, no (indistinct).
UCO WILLIAM: Yeah?
SIDAROS: And, um, that – that type of thing (indistinct).
UCO WILLIAM: Oh, right.
SIDAROS: Yeah.
(Television)
UCO WILLIAM: What, did you get caught in the middle of it or something, or what happened?
SIDAROS: No. Just, fucking, our pres went one way and our Sergeant at Arms (indistinct)
UCO WILLIAM: Yeah.
[Page 23]
SIDAROS: And a couple of the boys later on (indistinct) one night we went to the pres’s house and … (indistinct)
UCO WILLIAM: Fair enough. That’s one way to sort it out. (Laughing) Oh, well, you’d want to hope they’d look after you then.
SIDAROS: Oh, yeah.
UCO WILLIAM: For sticking your neck out like that.
SIDAROS: (indistinct)
UCO WILLIAM: That’s the sort of loyalty you can’t find every day of the fucking week.
SIDAROS: Yeah. They don’t record (indistinct)
UCO WILLIAM: Oh, mate, fucking, been through this shit before. Fucking, I’ve heard all sorts of shit said. It never goes anywhere. It never – never ends up in court or anything.
SIDAROS: Mm.
UCO WILLIAM: I don’t think they do. They can’t – can’t fucking use it unless they’re sitting there and that, you know, where they tell you all the bullshit rights and all that anyway, right before they talk to you and before you say anything anyway, so.
SIDAROS: Yeah.
(Television)
SIDAROS: You’re not an undercover cop are you?
UCO WILLIAM: I certainly fucking hope not. It’s news to me. (Laughing)
SIDAROS: They do that shit.
UCO WILLIAM: Do they? Down here?
SIDAROS: Oh –
UCO WILLIAM: I’ve heard rumours of it. I haven’t encountered it myself.
SIDAROS: (indistinct) and shit.
UCO WILLIAM: Oh, yeah. Yes, fucking, they’ll try any old trick won’t they. I tell you what, I wouldn’t have to fucking worry about sitting down here on a Saturday night if I was (indistinct)
SIDAROS: Yeah (indistinct)
…
[Transcript commencing 7:24pm on 1 September 2018]
…
[Page 35]
SIDAROS: Hmm?
UCO SIMON: Have you been charged with it or anything?
SIDAROS: Not yet. I’ve (indistinct)
UCO SIMON: Or (indistinct) like the other one? You’re just waiting till – or have you already been charged?
SIDAROS: Um, I’ve been – I go to court on Monday. Like, I don’t know. The sentencing won’t be – apparently, yeah, I’ve been charged with, um, yeah, um, charged with attempted murder. But, fucking, I didn’t – they’ve got nothing. I didn’t fucking try to kill anyone.
UCO SIMON: What do they think happened? Do you – oh, you don’t have to tell me, but.
SIDAROS: Um –
UCO SIMON: Like, obviously it’s –
SIDAROS: They reckon – they reckon I was one of four members that went to our ex‑president’s house and, um, started shooting at him.
UCO SIMON: Do they have any evidence on you?
SIDAROS: (indistinct) but I wasn’t there.
UCO SIMON: No? Did you say anything to them when – have they spoken – like, have they interviewed you about it?
SIDAROS: Oh, I said I was going to exercise my right and be – like, not – yeah, like, fucking, like, I was gonna exercise my right to not say anything.
UCO SIMON: Yeah, Do you have any idea who – who did it? Like, do you reckon you’ll cop it for someone else? That’d be fucking shit.
(Television)
UCO SIMON: Have you got kids? Have you got any kids?
SIDAROS: No. Well (indistinct) I’ve be, like, “Fuck that. Do not call them.”
(Television)
…
[Transcript commencing at 10:12am on 2 September 2018]
[Page 8]
UCO WILLIAM: It’s amazing how tired, doing fuck‑all can make you.
SIDAROS: Yeah.
(Television)
UCO WILLIAM: Mate, so if I go back to the boss and try and hook up some business between – between your club and our mob, what’s – ah, what can I tell him? Like, because he’ll want to know what sort of – what sort of blokes I’ll be trying to bring in.
SIDAROS: Some fucking violent cunts.
UCO WILLIAM: No doubt. Sometimes that’s the only way you can get some business done though isn’t it.
SIDAROS: Yeah.
UCO WILLIAM: Might –
SIDAROS: It’s pretty fucking (indistinct) sometimes, yeah.
(Television)
UCO WILLIAM: Yeah. I mean, but you’re – you’re the only one I know so far. So he’ll want to know a little bit about you, I guess.
SIDAROS: I’m the youngest member.
UCO WILLIAM: Yeah?
SIDAROS: And getting (indistinct) attempted murder. (Laughing)
UCO WILLIAM: Fucking hell.
SIDAROS: (indistinct)
UCO WILLIAM: Starting – starting big, mate. (Laughing).
SIDAROS: Yeah.
UCO WILLIAM: Oh, well, that’ll get a bit – get you a bit of, ah, kudos around the club, yeah?
(Television)
SIDAROS: I guess you could say, that, yeah.
UCO WILLIAM: Hey?
SIDAROS: I guess you could say that, yeah.
[Page 9]
UCO WILLIAM: Yeah. Well, without having a better word for it, I guess.
SIDAROS: Yeah.
(Television)
UCO WILLIAM: I mean, if I, um, try and bring to the table that I’ve met you –
SIDAROS: Yeah.
UCO WILLIAM: – and, you know, you’re part of the club and what type of blokes we’ll be talking about, you know. And obviously he’s gonna want to know how I met you and what you’re in for. He’s gonna want – he’s gonna want to know, you know, did you actually do it or did you not do it, you know. He’s gonna want to know what sort of bloke you are.
(Television)
SIDAROS: Yeah.
UCO WILLIAM: Were you sort of running the show there or?
SIDAROS: l was the main – um, yeah.
UCO WILLIAM: Oh, righto. What about the other blokes? Are they – are they at risk of getting fucking locked up as well or?
SIDAROS: No, they didn’t get caught with the things.
UCO WILLIAM: Oh, fucking hell. Did they get rid of theirs, or what have they done?
SIDAROS: I had mine registered in my name.
UCO WILLIAM: Oh, right. How come you used that one?
SIDAROS: Oh, a shotgun. I thought it was, like, you know, since it was – I thought they wouldn’t be able to trace it.
UCO WILLIIAM: Oh, fucking hell. Well, how the fuck did they get you with it then? Did they get it on your or something, did they?
SIDAROS: Yeah. No. Um, there were ejected shells or some shit –
UCO WILLIAM: Oh, right.
SIDAROS: – at the scene, so.
UCO WILLIAM: Yeah?
SIDAROS: At the scene, yeah. And they did forensics on the firing pin mark
[Page 10]
UCO WILLIAM: Oh, right. Fucking hell. I didn't know they could do that, on a shotty anyway. I always thought shotties were pretty fucking – pretty clean, you know.
SIDAROS: Mm, Same.
UCO WILLIAM: Okay. Were the other blokes tooled up as well, or was it just you?
SIDAROS: Yeah.
UCO WILLIAM: They got rid of their shit?
SIDAROS: Yeah.
UCO WILLIAM: So they haven’t got it anymore?
SIDAROS: Huh?
UCO WILLIAM: They haven’t got any pieces anymore?
SIDAROS: No. Or no, they do.
UCO WILLIAM: They do?
SIDAROS: Only the one’s I left behind.
UCO WILLIAM: Oh, right. Okay. Yeah, I guess the boss would want to know is there going to be – you know, if we bring you guys in, is there gonna be any blow-back from any of that sort of stuff.
SIDAROS: Yeah.
UCO WILLIAM: He’s pretty careful. He’s sort of – he’s run a pretty tight – a tight business for a while, you know.
SIDAROS: Yeah. Yeah.
UCO WILLIAM: You know, not really – not really in the Canberra market. We just sort of come and go in and out of here to do some meetings and a bit of business.
SIDAROS: Yeah.
UCO WILLIAM: You know, mate, purely for the fact that we don’t want to step on the toes of blokes like you guys. So it’s just – just found a real fucking good meeting place, eh. Like, Canberra cops are useless, man. Fucking, we just usually come and go. Nobody pays us any attention.
SIDAROS: Yeah. Oh, they’re shit cunts.
[Page 11]
UCO WILLIAM: Were the other blokes patch or were they just noms or something?
SIDAROS: Um, no. We’ve all got our patches.
UCO WILLIAM: Yeah. There must have been a pretty big fucking split in the club, if you go that far. What was that all over? Anything in particular, or just –
SIDAROS: It was a nationwide split.
UCO WILLIAM: A what, sorry?
SIDAROS: It was a nationwide split. And our president took one side, Sunni,
UCO WILLIAM: Yeah.
SIDAROS: Our sergeant at arms at the time, took the other side. And the majority of us went with him.
UCO WILLIAM: Oh, right. What, so two different sides sort of sided up with –
SIDAROS: Yeah.
UCO WILLIAM: – what, national presidents or something or other or?
SIDAROS: Yeah.
UCO WILLIAM: Oh, right. Okay. Well, mate, it happens to the best of – best of groups, best of clubs. There’s always a difference of opinion isn’t there.
SIDAROS: Mm.
UCO WILLIAM: So to take care of business like that you must have got the nod off the fucking – off the new pres or whoever.
SIDAROS: Sorry, bro?
UCO WILLIAM: You just have got the green light off the new pres or something to go take care of business like that, yeah?
SIDAROS: Mm. Fuck, man, I’m dying for a smoke.
…
The Crown places particular reliance upon what is said in the extracted portion of the transcript of 2 September 2018. It is significant also to note the statement consistent with the involvement of the accused made at page 23 of the transcript commencing at 5:41pm on 1 September 2018. Pages 12 and 23 of the transcript contain misleading statements made by UCO William concerning his identity and the possible use of material recorded by police from the watch house cells.
The extracted portions of transcript above reflect only a small component of the conversations involving the accused in the cell. There is much conversation on other topics. So far as the transcript discloses, the conversations were as amicable as might be expected in the circumstances as they were portrayed to be.
Was there a statutory obligation to caution?
The accused submitted that the carrying out of the questioning of the accused in the cells by the undercover operatives was contrary to s 23F of the Crimes Act 1914 (Cth) because he was not cautioned by those police officers.
The relevant statutory provisions of the Crimes Act are as follows:
23A Application of Part
(1) Any law of the Commonwealth in force immediately before the commencement of this Part, and any rule of the common law, has no effect so far as it is inconsistent with this Part.
…
(5) The provisions of this Part, so far as they protect the individual, are in addition to, and not in derogation of, any rights and freedoms of the individual under a law of the Commonwealth or of a State or Territory.
(6)If an offence against a law of the Australian Capital Territory is punishable by imprisonment for a period exceeding 12 months and the investigating official concerned is a member or special member of the Australian Federal Police, this Part applies to that offence as if:
(a)references to Commonwealth offences included references to that offence; and
(b)references to a law of the Commonwealth included references to a law of that Territory.
23B Definitions
(1)In this Part:
...
investigating official means:
(a)a member or special member of the Australian Federal Police; or
(b)…; or
(c)...
...
question has the meaning given by subsection (6).
…
(6) In this Part, a reference to questioning a person:
(a) is a reference to questioning the person, or carrying out an investigation (in which the person participates), to investigate the involvement (if any) of the person in any Commonwealth offence (including an offence for which the person is not under arrest); and
(b)does not include a reference to carrying out a forensic procedure on the person under Part ID.
23F Cautioning persons who are under arrest or protected suspects
(1)Subject to subsection (3), if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence.
(2)The investigating official must inform the person of the caution in accordance with subsection (1), but need only do so in writing if that is the most appropriate means of informing the person.
(3)Subsections (1) and (2) do not apply so far as another law of the Commonwealth requires the person to answer questions put by, or do things required by, the investigating official.
Part IC of the Crimes Act applies to an offence of attempted murder under the law of the Australian Capital Territory: s 23A(6). The accused submitted that undercover operatives fell within the definition of “investigating official” in s 23B because they were members of the AFP. As a consequence, he submitted that pursuant to s 23A(6) there was an obligation to caution under s 23F(1) because the accused was “a person under arrest” and no other law required the accused to answer questions put by the officers: s 23F(3). In oral submissions, senior counsel for the accused accepted that he could not identify any case in which this argument had been ruled upon and that the application of such provisions to undercover operations was “bizarre” and the Commonwealth Parliament may need to consider amending the provisions. However, he submitted that the contravention of s 23F was an additional factor which needed to be taken into account under s 138 of the Evidence Act 2011 (ACT).
Counsel for the Crown accepted that the undercover police officers were “investigating officials” for the purposes of Pt IC. However in his written submissions he submitted that the officers were not “questioning” the accused for the purposes of s 23F(1). He submitted that the evidence indicated that there was a real difference between a formal interview and engaging the accused in conversation. He did not seek to maintain this position in his oral submissions, accepting that there was a breach of s 23F. He submitted that the application of a provision such as s 23F to police undercover operations would obviously render the conduct of such operations impossible. He noted that elsewhere in the Crimes Act there were provisions which specifically recognised the different circumstances of covert operations and that there were provisions in state and territory law which exempted covert operations in particular circumstances. He submitted that the failure to address the circumstances of undercover operations in a provision such as this was a legislative oversight and that this should be taken into account in determining the significance of the unlawfulness for the purposes of s 138.
On its face, s 23F applies to the circumstances of the accused. He was under arrest. The undercover police officers were members of the AFP and hence were within the definition of “investigating official”. Whilst they were not formally questioning him, as police officers their conduct falls within the scope of “questioning” as defined in s 23B(6) because it occurred, at the very least, when the police were “carrying out an investigation” in which the accused was participating. The intention of enacting s 23F was that it was to create a statutory equivalent to “the caution required by the common law judges’ rules”: see Explanatory Memorandum, Crimes (Investigation of Commonwealth Offences) Amendment Bill 1990 (Cth) 13.
The existence of s 23F creates an obvious problem for police who intend to conduct covert operations involving undercover police officers where the operation relates to or includes a suspect after the suspect has been arrested. Such operations would be rendered nugatory by the requirement that the covert police officer caution the arrested person. Section 23F on its face would mean that a covert operation involving police officers questioning an arrested person without a caution would involve a breach of the law. During the course of oral submissions, there was some consideration of the possibility that this might simply be a legislative oversight. While that is a possibility, the legislative scheme in Pt IC indicates that specific attention was paid to the circumstances of covert operations. Hence the fact that there is no exclusion from s 23F for covert operations is more likely to be a deliberate decision rather than an oversight. Covert operations are specifically dealt with in s 23B(4) which identifies that a person ceases to be arrested or a protected suspect if they are voluntarily participating in covert operations. They are also referred to in s 23V(3) which defers the obligation upon an investigating official to read back to the person a record of any confession or admission (s 23V(1)(b)) and to provide a copy of the recording or a transcript of the recording to the person without charge (s 23V(2)) until a time when those exercises may be performed “without prejudice to the covert investigations”. The distinction between s 23V and s 23F is that s 23F applies only after a suspect is under arrest whereas s 23V applies generally. The sections can be seen as working together in that, although s 23V expressly contemplates covert operations which may involve confessions or admissions, after arrest the more restrictive obligation in s 23F applies and effectively excludes the use of such operations to obtain admissions from an arrested person.
The legislative history tends to support the proposition that the absence of any exclusion for covert operations was not a mere legislative oversight. Section 23F was introduced as part of a package of measures by the Crimes (Investigation of Commonwealth Offences) Amendment Bill 1990 (Cth) (the 1990 Bill). The terms of s 23F reflect the language of the equivalent provision in the draft Bill which was an appendix to the Interim Report of the Review of Commonwealth Criminal Law entitled “Detention Before Charge” which was published in March 1989 by the Attorney-General’s Department (the Committee). The recommendation of the Committee in relation to cautioning of persons was reflected in the terms of the 1990 Bill: see Commonwealth, Parliamentary Debates, House of Representatives, 15 November 1990, 4220-4221 (Michael Duffy, Attorney-General). In the Interim Report, the Committee was considering whether or not the power to detain persons for questioning or investigation should be subject to safeguards. It considered the safeguards provided by the Victorian Crimes Act 1958 (Vic) and those that would have been provided by the Criminal Investigation Bill 1981 (Cth) had it been enacted. For present purposes, it is relevant to note that shortly before the Committee reported, the Victorian Crimes Act had been amended by the Crimes (Custody and Investigation) Act 1988 (Vic) to include provisions regulating the treatment of persons in custody. The Victorian legislation was therefore contemporary legislation which was considered by the Committee in some detail. It included a requirement that before a person who was in custody was questioned, “an investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence”: s 464A(3). Significantly, the term “investigating official” was defined as “a member of the police force or a person appointed by or under an Act (other than a member or person who is engaged in covert investigations under the orders of a superior)”. The obligation in s 464A was specifically referred to in the Interim Report at [6.4], although no specific reference was made to the significance of the definition of “investigating official” for the operation of that subsection.
The reliance by the Committee on contemporary models which carved out situations involving covert operations from the obligation to caution and the failure to adopt any equivalent carve‑out in the draft bill or the bill that was enacted based upon its recommendations, reduces the likelihood that the form of s 23F is a result of an oversight as opposed to a deliberate but unarticulated policy choice. On the other hand, the fact that the policy was unarticulated leaves open the real possibility that consideration was not given to the circumstances of covert operations in the drafting of the section.
Unlike s 23V, s 23F does not expressly address the consequences of a breach of it. Section 23S makes it clear that Part IC does not affect, inter alia, the discretion of a court to exclude unfairly, illegally or improperly obtained evidence. But there is no equivalent statement in s 23F which identifies or implies the consequences of a breach of that section.
Finally, it must be noted that the consequences of a breach of s 23F must be considered in light of s 139 of the Evidence Act 1995 (Cth) (which is also reflected in the terms of the Evidence Act 2011 (ACT)). That section provides that a statement made by a person who was under arrest but was questioned without a caution is taken to have been obtained improperly for the purposes of s 138(1)(a). Of significance is that this regime picks up the definition of “investigating official” in the Dictionary to the Act which excludes “a police officer who is engaged in covert investigations under the orders of a superior”. This provision has a wider operation than s 23F because it applies to the investigation of offences other than Commonwealth offences. At the time of its enactment it was said that “[t]his clause reflects the obligation of investigating officials with a power to arrest to caution persons under Part IC of the Crimes Act 1914”: see Explanatory Memorandum, Evidence Bill 1994 (Cth) [245]. This formulation, which carved out the position of covert operations, and its enactment in 1995 shortly after s 23F was introduced, tends to reduce what would otherwise be the compelling legislative statement in s 23F. (It is worth noting that although the decision in R v Swaffield [1998] HCA 1; 192 CLR 159 (Swaffield) at [94]-[95] made specific mention of the absence of a caution in circumstances similar to the present case, the decision was not required to deal with the significance of the carve‑out for undercover operations made by s 139.)
The position is, therefore, that the recorded conversations involved questioning of a person under arrest in breach of s 23F of the Crimes Act but would not involve an impropriety arising from the terms of s 139 of the Evidence Act of either the Commonwealth or the Territory. I will address the consequences, if any, of that breach later in these reasons.
Statutory provisions relevant to the discretion to exclude the admissions
The most relevant provisions are ss 90 and 138 of the Evidence Act (ACT). Those provisions are as follows:
90Discretion 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 presented 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.
NotePt 3.11 contains other exclusionary discretions that apply to admissions.
138Exclusion 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;
must not 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 the person 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 the person 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 must 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.
NoteThe International Covenant on Civil and Political Rights is accessible at type="1">
Senior counsel for the accused, Mr Odgers, made submissions which emphasised the accusatorial and adversarial nature of the criminal process after the point where an accused person is charged with a criminal offence. The submissions made specific reference to the general statements about the nature of the criminal process made by the majority judges in Lee v The Queen [2014] HCA 20; 253 CLR 455 at [32] and [45]. He also referred to the decision of Hayne and Bell JJ (with whom Kiefel J agreed) in X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 at [101], [105]-[109]. While those general statements were made in contexts different to the present, they place emphasis upon the entitlement of an accused person to stay silent in response to a criminal allegation (other than to enter a plea of guilty or not guilty). In relation to the provisions of Part IC of the Crimes Act, Hayne and Bell JJ in X7 said at [109] that the provisions “both create and reflect one important element of the accusatorial nature of the process of criminal justice in respect of indictable Commonwealth offences: a person accused or suspected of having committed a crime is entitled to stay silent in response to the questions of investigating officials”.
With this as a starting point, the submissions of the accused placed significant reliance upon the decision of the High Court in Swaffield. In particular, the accused relied upon the statement that there was a discretion, separate from questions of voluntariness and reliability, to exclude evidence on the basis that the admission of the evidence was unacceptable, having regard to contemporary community standards. He relied in particular on the statements at paragraphs [91]-[92] where the plurality recognised an approach which looked to the extent to which the freedom of the accused to choose to speak or not to speak had been impugned and that even where there is no unfairness involved “the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards”.
Senior counsel placed particular reliance upon the circumstances of and the result in Swaffield. In that case, the accused had been charged with offences including arson and declined to be formally interviewed by police. At committal, no evidence was led against him and he was discharged. The following year an undercover police officer who was investigating other offences obtained from him admissions that he had been involved in the arson. The significant similarities with the present case are that the accused had declined to be formally interviewed by police and that the admissions were obtained through a discussion with an undercover officer who had taken steps to direct the conversation towards issues in relation to which admissions were made and no caution had been given. The judgment in Swaffield proceeded on the basis that there was a breach of the Judges’ Rules (the history of which is described in X7 at [120]) because of the absence of a caution: see Swaffield at [94]-[95].
The submissions made on behalf of the accused then provide examples of cases in which the approach in Swaffield has been applied, namely R v Franklin [2001] VSCA 79; 3 VR 9; R v Dewhirst [2001] VSC 172; 122 A Crim R 403; R v Juric [2002] VSCA 77; 4 VR 411; Tofilau v The Queen [2007] HCA 39 231 CLR 396 (Tofilau); Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452 (Pavitt); R v Lewis [2000] VSCA 140; 1 VR 290.
Senior counsel for the accused submitted that having declined to participate in the police interview, the freedom of the accused to speak or not to speak was circumvented by the police undercover officers questioning him. In particular, he submitted that there had been a reckless disregard by the police of the accused’s rights (although recklessness was not essential to the ultimate submission), that the accused had unambiguously declined to consent to be interviewed and that the admissions were made during conversations which were “the functional equivalent of an interrogation”.
Added to these circumstances was the breach of s 23F which is referred to above.
Counsel for the Crown, Mr Hickey, analysed the circumstances by reference to post‑Swaffield cases, most prominently R v Cowan [2015] QCA 87; [2016] 1 Qd R 433 (Cowan) and Pavitt. The submissions of the Crown pointed out that the accused had not uniformly exercised his right to silence, speaking to police during the execution of a search warrant at his home prior to his arrest. He emphasised that notwithstanding the result in Swaffield, the infringement of the right to silence did not require rejection of the evidence but merely enlivened the discretion to be exercised in the circumstances of the case. He referred to the “scenario evidence” in Tofilau and Cowan as examples of cases in which statements made as a result of deception by police were nevertheless recognised as voluntary. So far as unfairness was concerned, he referred to the summary of principles in Pavitt and submitted that the deception practiced in R v Belford [2011] QCA 43; 208 A Crim R 256 on Mr Bound was similar to that in the present case. He identified an aggregation of features of the present case which would lead to the evidence not being excluded under s 90 or s 138.
Discretion
A useful summary of the authorities relating to the admissibility of covertly recorded conversations is provided by the majority judgment in Pavitt. Although the factual circumstances of that case were substantially different from those in the present case, following a detailed review of the authorities the majority judgment identified (at [70]) the following propositions:
(a)The underlying consideration in the admissibility of covertly recorded conversations is to look at the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned: Swaffield(at [91]) per Toohey, Gaudron and Gummow JJ; (at [155]) per Kirby J.
(b)If that freedom is impugned, the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted: Swaffield (at [91]); a conclusion that some or all of the Broyles factors were present did not lead to the admissions being excluded in either Pavic or Carter’s cases;
(c)Even if there is no unfairness the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards: Swaffield(at [91]).
(d)The question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and/or improper include whether the accused had previously indicated that he/she refused to speak to the police;
(e)The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required:
(i)as a threshold question, was the evidence obtained by an agent of the state?
(ii)was the evidence elicited?
(f)A person is a state agent if the exchange between the accused and the informer would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents: Broyles (at [30]);
(g)Absent eliciting behaviour on the part of the police, there is no violation of the accused’s right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police: Hebert;
(h)Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the state agent for the conduct of the conversation may also be important: Broyles.
(i)The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful.
There are two aspects of the authorities giving rise to these principles that require some additional comment. The first is what amounts to, and the significance of, “eliciting” conduct. The reference to eliciting comes from the decision in R vHebert [1990] 2 SCR 151. It was explained further in R vBroyles [1991] 3 SCR 595. In Hebert, the judgment of McLachlin J drew a distinction between undercover agents actively eliciting information in the situation where the suspect speaks by his or her own choice: see 185. What constitutes the eliciting of an admission is not elaborated upon. In Broyles, the judgment of Iacobucci J discusses what is meant by elicitation. The judgment explains the expression in a number of different ways: see 611:
… considering all the circumstances of the exchange between the accused and the state agent, is there a causal link between the conduct of the state agent and the making of the statement by the accused?
…
Did the state agent actively seek out information such that the exchange could be characterised as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.
In that case, the quoted portions of the transcript demonstrated that there was the functional equivalent of an interrogation in the sense of questioning as if cross-examining a witness. It was done with the intention to elicit a statement that the accused had killed the victim. That was combined with attempts to undermine confidence of the accused in his lawyer. The two articulations of the test, one requiring only a causal connection, the other requiring the functional equivalent of an interrogation have the potential to produce different results. It is possible for the actions of an undercover officer to be a cause of the admission without the officer having engaged in the functional equivalent of an interrogation. Clearly, the more active the role taken by the undercover officers and the more like an interrogation the interaction is, the more likely it is that a court will conclude that the conduct was an unacceptable infringement of the accused’s right to silence. On the other hand, the greater the extent to which the circumstances are akin to a voluntary disclosure to a stranger or criminal associate, the less likely it is that the conduct of the undercover police officer will be seen as going beyond what might be considered to be acceptable.
In the present case the accused placed some emphasis on the use of the word “elicit” (misspelled “illicit”) in the internal AFP request for assistance from the AFP undercover program. I do not place any weight on the use of this word in the document by reference to its significance in Hebert and Broyles. In the request it is simply used in the ordinary sense of “obtain” rather than as a technical term used with knowledge of its significance in the authorities.
The second area that requires comment is the tension that exists between a case such as Swaffield, where evidence was excluded when an undercover police officer elicited from a suspect admissions after he had chosen not to speak to police about the subject matter of the charges, and cases involving the uses of the scenario technique which involve a substantial and concerted effort to deceive a suspect so that the suspect is put in a position where he makes admissions. The obvious example of the latter is Cowan. The scenario cases appear to involve a course of systematic deception which could be characterised as a greater interference with the choice of a person to either speak or not speak to investigating authorities than some relatively modest questioning by an undercover officer. The whole purpose of the scenario technique is to generate a circumstance in which admissions will be made. As Cowan demonstrates, that will often involve creating circumstances that place pressure on the suspect. There can be no doubt that in those circumstances the creation of the scenario is the cause of the admission and in that sense it is clearly elicited. Similarly, the circumstances such as those in Cowan involved what might be described as the functional equivalent of an interrogation: see Cowan at 461-471. Clearly, the tension between the authorities is at its greatest if the reference in Hebert, adopted in Swaffield, to eliciting is interpreted in a manner that presents a low threshold rather than the more robust threshold articulated in Broyles of “the functional equivalent of an interrogation”.
Senior counsel for the accused sought to distinguish the authorities on the basis that there was a significant distinction between the investigatory phase of the criminal justice process and the accusatory phase after a suspect is arrested. This derives force from the statements in X7 which refer to the accusatorial nature of the process of criminal justice and the fact that “[t]he laying of a charge marks the first step in engaging the exclusively judicial task of adjudicating and punishing criminal guilt”: X7 at [110]. Similarly, this is a distinction which was referred to in Hebert where McLachlin J said that the post-detention period is different because of the need to protect the accused from the greater power of the state which has taken control and assumed responsibility for ensuring that the detainee’s rights are respected: see [74]. It is also recognised by the Judges’ Rules (rule 2) discussed in Swaffield and s 23F itself.
In my view, it is appropriate to recognise the increased vulnerability and need for protection of a person who is in custody. Clearly, regard must be had to the accusatorial nature of the process. That is a significant factor to be considered in assessing fairness for the purposes of s 90 or exercising the discretion under s 138 to admit the evidence notwithstanding a breach of the law or impropriety.
It is convenient for the purposes of exercising the discretion contemplated by Swaffield to set out considerations that exist for and against the proposition that the admission of the evidence would come at too high a price so as to warrant exclusion under s 90 and/or s 138. In favour of the admission of the evidence are the following matters:
(a)Having regard to the fact that the accused thought he was speaking to an accused person who he understood was involved in criminal activity, he was not subject to any coercive power of the state.
(b)The admissions were made freely and voluntarily as part of the conversation with the two undercover operatives. Nothing in the transcript indicates anything other than cordial and voluntary conversation. It was not in any real sense the functional equivalent of an interrogation.
(c)While the admissions were made when the accused was in custody, the admissions were made without any build-up of psychological pressure, any power imbalance or misinformation of the kind in Tofilau or Cowan. There was however the misleading statement as to whether or not material recorded from the cells could be used in court.
(d)There were no leading questions, intense questions or questions which were on their face unfair.
(e)The undercover operatives did not exploit any special relationship between them and the accused. Rather, they were strangers to the accused and had no relationship with him other than the possibility of some future criminal association (discussed in the transcript from 2 September 2018).
(f)There is no reason to question the reliability of the admissions.
(g)The admissions are of high probative value because of their reliability and the centrality of the question of identification of the accused as one of the persons present during the incident.
(h)The subject matter of the investigation was very serious as it involved firearms and fire that might readily have led to death or more serious injury than that which eventuated.
In favour of exclusion of the evidence are the following matters:
(a)The accused was under arrest and in police custody rather than merely being the subject of an investigation.
(b)He had expressly, through his solicitor, indicated his decision not to answer further questions asked of him by police.
(c)The conduct of the undercover officers involved at least directing the conversation to matters which might elicit admissions and involved the presentation of a false scenario designed to elicit admissions.
(d)During the course of the conversation one of the police officers made a directly false statement that he was not a police officer and that his understanding was that if the conversations were being recorded then they would not be admissible. He made these statements in order to encourage the accused to continue making disclosures.
(e)The questioning of the accused in the absence of a caution involved a contravention of s 23F of the Crimes Act (although there is no evidence that the undercover officers and their controllers were aware that the prohibition applied in the circumstances).
So far as s 90 is concerned, the capacity to exclude evidence is discretionary if “having regard to the circumstances in which it was made, it would be unfair to a defendant to use the evidence”. The circumstances which may give rise to unfairness are not confined: Em v The Queen [2007] HCA 46; 232 CLR 67 at [56] and [109]. In this case, the relevant unfairness would be the unfairness of using evidence obtained by the undercover operatives in the manner that it was having regard to the fact that the accused had chosen not to speak further to police.
Further, although not relied upon by the accused, the admissions were made after the false denial by UCO William that he was a police officer and a statement that the statements made by the accused could not be used against him without a caution. Tempering any element of unfairness arising from this is the fact that the statements were not made by a police officer identified as such but rather by a person thought by the defendant to be a stranger and fellow accused person.
There have been a range of views expressed by the High Court and intermediate courts of appeal as to the scope of s 90 and its relationship with s 138: see Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 14th edition, 2019) at [EA.90.60]. The Crown hinted at, but did not ultimately make, a submission that the public policy discretion contemplated by Swaffield was not accommodated within the concept of fairness in s 90. It is unnecessary to attempt to resolve the relationship between s 90 and s 138. The case was argued on the basis that the discretion to be exercised involved the public policy component of the test in Swaffield which could fit within s 90 or s 138 or some combination of both.
It is relevant to have regard to the factors in s 138(2). Relevant for the purposes of s 138(2)(b) is the making of the false statements as to the possibility of recorded statements being admissible in evidence, in particular, the representation by UCO William that they would not be admissible without a caution. It involved a false statement which must have reasonably been known by the undercover officer to be likely to cause the accused to make an admission. I treat it as an impropriety for the purposes of s 138. The other false statements concerning the identity of the undercover operatives are necessarily involved in an undercover operation and I do not consider that they are, by reason of s 138(2), required to be treated as giving rise to an additional impropriety.
So far as the matters referred to in s 138(3) are concerned, I address each of them in the following manner.
(a)The probative value of the evidence: The probative value of the evidence is high. The admissions are, having regard to the circumstances in which they were made, likely to be reliable. They go to the central issue in the case, namely, whether the accused was one of the persons involved in the incident on 28 June 2018.
(b)The importance of the evidence in the proceeding: The evidence would be very important in the proceedings. Apart from the admissions made to police and to another prisoner, the case is a circumstantial one. The principal evidence apart from admissions is the evidence that a shotgun was found during the search of the accused’s house and expert evidence identifying that gun as the gun that fired the cartridges found at the scene of the offence. The evidence of the admissions made to the other prisoner is likely to be subject to significant challenge given that it was not recorded and there may be a significant basis upon which to challenge the reliability of the evidence. Therefore, the evidence given to the undercover officers is likely to be of decisive importance in the proceedings.
(c)The nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding:The proceedings are criminal proceedings in which the accused is charged with a very serious offence, attempted murder along with intentional infliction of grievous bodily harm, damaging property by fire, aggravated burglary and a variety of other offences.
(d)The gravity of the impropriety or contravention: There was a direct contravention of s 23F although that must be considered in light of the existence of s 139. There was an impropriety to the extent that the police took measures to cause the accused to make an admission to undercover police officers when he was under arrest and after he had indicated that he did not wish to speak to police about the incident. The interaction with police involved a deception but did not involve any interrogation or the bringing of pressure to bear on the accused. It did involve the making of a false or misleading statement concerning the possible use of recorded evidence.
(e)Whether the impropriety or contravention was deliberate or reckless: The contravention of s 23F was not deliberate because there is no evidence that the police were aware that it presented a barrier to the undercover operation. So far as there was impropriety in police taking measures to cause the accused to make admissions, the evidence of the female controller and Detective Sergeant Ladd was to the effect that they were aware of case law which would permit the operation involving undercover police in the cells. The police were therefore aware of the risk that the evidence might be excluded. They did not give particular significance to the fact that the accused had communicated his decision to not discuss the incident further with police.
(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: Art 14(3)(g) of the Covenant provides that in criminal proceedings a person is “not to be compelled to testify against himself or to confess guilt”. This is not engaged in the circumstances of the present case: Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 2nd edition, 2005) at 345.
(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: No other proceeding is likely in relation to the impropriety or contravention.
(h)The difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law: The admissions could not have been obtained directly in circumstances where the accused declined to speak to police. Police have obtained evidence of other admissions made to a fellow prisoner and circumstantial evidence relating to the possession by the accused of a weapon which the expert evidence available to the Crown indicates is the weapon involved in the offending. The critical issue is the identity of those involved in the incident. It is a case in which there were no identified alternative means of obtaining evidence of admissions other than in the manner that it was or other evidence proving the identity of persons present.
Conclusion
As the matter was argued it ultimately came down to the question whether the admissions and any conviction based upon them would be achieved at a price which was unacceptable having regard to prevailing community standards. I accept that the case is factually similar in many respects to Swaffield, a point which was understandably emphasised by senior counsel for the accused. However, notwithstanding the factual similarities, the question is ultimately a discretionary one under s 90 and s 138 insofar as those sections incorporate the discretion referred to in Swaffield. That discretion must be exercised at the time the question needs to be determined on the basis of all of the circumstances of the particular case.
The present case is factually less favourable for admission of evidence than the position of Mr Bound in Belford. In that case, Mr Bound had made it clear that he did not wish to speak to police without first having received legal advice. He was then placed in a watch house in the company of two covert police officers. In dismissing an appeal from his conviction, a majority of the Queensland Court of Appeal placed emphasis on the fact that Mr Bound did not unambiguously state that he was not prepared to speak to police, the police officers were not using their authority as police officers to override his choice not to speak, the covert operative elicited his statements without using any misleading statements, leading or intense questions or questions which were unfair in themselves. In the present case, the accused had unambiguously communicated to police that he did not wish to answer further questions. Further, there were misleading statements made to him although by a person who he understood to be another detainee accused of offending rather than a person in authority.
I accept that when answering the public policy question posed in Swaffield, the community standards that are being referred to are not any notion of populist public opinion, but rather community standards concerning “the maintenance of the rule of law in a liberal democracy, the elements of the proper administration of justice and the due requirements of law enforcement”: R v Suckling [1999] NSWCCA 36 at [40].
In my view the issue is finely balanced. Clearly, there was an interference with the choice of the accused to speak or not to speak to police. That was achieved by a deception which included the making of false statements. However, notwithstanding that the accused was under arrest, I do not consider that the admissions and any conviction based upon them would be at a price which was unacceptable having regard to prevailing community standards. The methods adopted were not disproportionate to the purpose of investigating the serious crime of attempted murder in circumstances where those with direct knowledge of events were unlikely to be cooperative. The deception by the police revealed a willingness on the part of the accused to disclose his involvement in the events to persons who were at best strangers and at worst persons who he believed to be involved in significant criminal activity. The fact that the deception took place after the accused had been arrested and formally told police that he did not wish to speak to them further is a matter of significance. Further, it is a matter of significance that s 23F applied in the circumstances. Had s 23F stood alone, then I would have found that this was an expression of community standards which would require the evidence to be excluded under s 138. That is because the extrinsic materials that I have referred to above are more consistent with the circumstances of covert operations having not been overlooked. In my view the legislative statement of an unambiguous rule applicable in the circumstances which was contravened would provide a firm foundation for the conclusion that to admit the evidence would be unacceptable having regard to prevailing community standards. However, while the legislative statement in s 23F considered in isolation provides an unambiguous rule, the terms of s 139 of the Evidence Act (Cth) mirrored in the Evidence Act (ACT) provide a different rule applicable to post‑arrest circumstances and which, significantly, excludes covert operations. While its scope is broader than s 23F (as it applies to both Commonwealth and other offences), its existence undermines the clarity of the legislative statement of community standards for the purposes of the exercise of the discretion as to whether to admit the evidence.
In my view, notwithstanding the arrest of the accused, his decision not to answer police questions and the use of undercover police operatives in a manner which led him to make the admissions, the nature of the police conduct, the gravity of the offence being investigated, the reliability of the admissions and their significant probative value indicate to me that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in this way. In the context of a very serious criminal incident where the police had available to them limited means of proving the identity of the perpetrators, the extent of the infringement of the right to choose to speak or not to speak was not so unacceptable as to require that the evidence obtained be excluded. Similarly, it would not be so relevantly unfair for the purposes of s 90 so as to warrant a refusal to admit the evidence. The admissions were made in circumstances where they are likely to be reliable and insofar as there were misleading representations made by an undercover officer, they were understood to have been made by a criminally involved stranger. Consistent with these conclusions, I conclude that the evidence has not been obtained at a price which is unacceptable having regard to prevailing community standards.
Orders
I will therefore rule that the evidence obtained from or in consequence of the undercover operation conducted by undercover operatives (UCO 67469834 and UCO 23847098) on 1 September 2018 and 2 September 2018 may be admitted into evidence at the accused’s trial.
Ruling in relation to report of Clive Roberts
Background
A 12 gauge shotgun was found at the residence of the accused during the execution by the police of a search warrant. Four 12 gauge shotgun cartridge cases that had been fired were found at the scene of the incident involving Mr Zdravkovic. Mr Clive Roberts, a forensic firearms and tool mark examiner with the AFP examined the cartridges. He also examined cartridge cases which had been test fired from the shotgun. In a report dated 26 November 2018 he expressed the following opinion:
The tool marks present on the exhibit fired shotgun cartridge cases and the test fired shotgun cartridge case displayed the same class characteristics with sufficient, significant agreement of individual characteristics. This allowed me to identify that both the exhibit and test fired cartridge cases were fired in the same firearm.
The process that he engaged in and the reasons for his opinion were elaborated upon in a further report dated 12 July 2019. In this report he described in more detail the theory behind identification using tool marks on spent cartridges and the process of identifying the tool marks on the exhibit and test cartridges in the present case.
Submissions
Mr Pararajasingham who presented the argument on behalf of the accused on this aspect of the application submitted that it had not been established that the opinion expressed was “wholly or substantially based on” specialised knowledge. He developed that argument by reference to the steps identified by Mr Roberts in his report which led to the identification of the exhibit shotgun being that which fired the cartridges found at the scene. In particular he focused upon a photograph on which Mr Roberts had identified points of similarity within a particular indentation that appeared at one edge of the ejector cut out mark on the cartridge case. The submission was that, although it was within the scope of his expertise to express the opinion that the tool marks on the two cartridges were similar, he was not entitled to take the next step and identify that the two cartridges had been fired from the same gun. He submitted that the comparison of the similarity between the two photographs and the points identified thereon was not a matter of expertise but was a comparison exercise that the jury could undertake. He submitted that the opinion in this case was analogous to that in Honeysett v The Queen [2014] HCA 29; 253 CLR 122 (Honeysett).
Counsel for the Crown submitted that this line of reasoning would exclude from the category of expert evidence such accepted disciplines as fingerprint examination. He referred to the decision of Kellam AJ in R v Eastman(No 43) [2018] ACTSC 186 at [132] to the effect that whilst the opinion of an expert may be subjective, it may nevertheless be based upon specialised knowledge from training and experience.
Consideration
In Honeysett the evidence that was rejected was the evidence of a forensic identification by a witness with qualifications in anatomy. It was not based upon an anthropometric measurement or statistical analysis. That was not possible because the photographs which were being compared were not taken at the same angle or in the same body positions. Rather, the examination of images did not differ from that of a lay observer, save that the witness was an experienced anatomist and had a good understanding of the shape and proportion of details of the human body. The evidence was sought to be admitted to prove that the accused shared similar physical characteristics to the person shown on closed-circuit television (CCTV) images in order to support a conclusion that they were the same person. The court unanimously held the opinion was not based upon the witness’ undoubted knowledge of anatomy but rather upon his subjective impression of what he saw when he looked at the images: see [43]. The court found that his opinion was not based wholly or substantially upon his specialised knowledge and, as a consequence, it was an error to admit the evidence: see [46].
The starting point is that Mr Roberts is a person who has specialised knowledge based upon his study, training and experience in relation to forensic firearm examination and in particular, examination and comparison of tools and tool marks. I am satisfied that the comparison of tools and tool marks on firearms and cartridges from firearms is an area of specialised knowledge.
The report of Mr Roberts provided a description of the forensic discipline of tool mark identification and the origin of tool marks during and after manufacture of a tool. He explained that the theory of tool mark identification as follows:
Understanding the origin of random imperfections on tool surfaces, pre or post‑manufacture, allow the FFTE to assess and discern marks created by the tool which are observed to repeat in two or more toolmarks made by that tool. If there is sufficient repeatability of the toolmarks made by the random imperfections in the tool and they are of good quality, the tool of origin can be identified as the tool that made the marks.
He then referred to a statement from the AFTE Journal in 2011 concerning the theory of identification:
1. The theory of identification as it pertains to the comparison of toolmarks enables opinions of common origin to be made when the unique surface contours of two toolmarks are in “sufficient agreement”.
2. This “sufficient agreement” is related to the significant duplication of random toolmarks as evidenced by the correspondence of a pattern or combination of patterns of surface contours. Significance is determined by the comparative examination of two or more sets of surface contour patterns comprised of individual peaks, ridges and furrows. Specifically, the relative height or depth, width, curvature and spatial relationship of the individual peaks, ridges and furrows within one set of surface contours are defined and compared to the corresponding features in the second set of surface contours. Agreement is significant when the agreement in individual characteristics exceeds the best agreement demonstrated between toolmarks known to have been produced by different tools and is consistent with agreement demonstrated by toolmarks known to have been produced by the same tool. The statement that “sufficient agreement” exists between two toolmarks means that the agreement of individual characteristics is of a quantity and quality that the likelihood another tool could have made the mark is so remote as to be considered a practical impossibility.
3. Currently the interpretation of individualization/identification is subjective in nature, founded on scientific principles and based on the examiner’s training and experience.
The process adopted in the report was to test fire the shotgun and compare features of two cartridges from the test firing. That allowed Mr Roberts to identify tool marks left by the firing process that were repeated from one test to another and those that were left by the firing process that were not so repeated. He identified an impression caused by the edge of the ejector cut out on the face of the breech bolt of the exhibit shotgun. Within this area he found that there were a significant number of corresponding features which far exceeded the extent of correspondence that was seen in tool marks produced by different tools. The conclusion that there was a sufficient number of marks corresponding to permit the mark to be used as a means of identification is one based upon his specialised knowledge. Mr Pararajasingham did not contend otherwise. The next step was to compare the same area on one of the cartridges found at the scene. A similar tool mark was identified on that cartridge and a comparison made between the features within that tool mark under a 20 times magnification. The comparison image was then marked up so as to show corresponding portions within the mark so as to “facilitate an independent and un-trained person to focus on areas where there is agreement observed by the author and other trained examiners”. Based on the extent of agreement between the internal features of the tool mark he then expressed the opinion that:
The agreement observed in the toolmarks on the exhibit and test fired cartridge cases was significant as was consistent with the agreement observed by the author in the marks left between the test fired cartridge cases fired by the same one firearm being the exhibit shotgun.
He undertook the same exercise with the other three fired cartridges found at the scene and all displayed “significant and sufficient agreement to identify [the shotgun found at the house of the accused] as being the firearm that fired them”.
It is the final comparison exercise between the internal features of the duplicated tool mark that is said to be not substantially based upon specialised knowledge. It is contended that it is the equivalent to the forensic identification referred to in Honeysett.
I do not accept that the evidence in this case is analogous to that in Honeysett. The starting point is that Mr Roberts has undoubtedly used his specialised knowledge in order to identify the relevance of the tool marks for the purposes of the identification process and to identify an area where there are consistently appearing tool marks which would permit a comparison with the cartridges found at the scene. He has then applied his expertise to the identification of areas within those tool marks which match internal features of the tool mark on the exhibit cartridge. The essential point that leads to the opinion that both exhibit and test cartridges were fired from the same gun is that the extent of agreement between the tool marks was significant enough to permit the conclusion that they must have been fired from the same gun. Contrary to the submission made on behalf of the accused, the process was not simply one of comparing the similarity between a number of different areas within the duplicated tool mark. Rather, it involved the application of specialised knowledge based on training, study or experience to reach the conclusion that the extent of correspondence of the internal features was such that it met the standard of “sufficient agreement” explained in the quote set out above. While that does involve steps in the process which involve some subjective determinations not based on measurements, databases or algorithms, that does not remove the opinion from the category of opinions based wholly or substantially upon specialised knowledge. It is analogous to opinions expressed by doctors, fingerprint analysts or indeed the experts referred to by Kellam AJ in Eastman (No 43). It is different to the comparison of the appearance of a human figure shown in photographs, the subject of the decision in Honeysett, which is a matter of ordinary human experience. For that reason, I am satisfied that the opinion of Mr Roberts expressed in his reports dated 26 November 2018 and 12 July 2019 should not be excluded.
Ruling in relation to report of Anthony Macken
Anthony Macken has prepared a report in relation to various aspects of outlaw motorcycle gangs (OMCG). He is an intelligence team leader at the Criminal Groups Squad Intelligence Unit, State Intelligence Command of the New South Wales police. The accused has objected to the admissibility of various parts of that report. In response to that objection, the Crown has indicated that it will only seek to adduce evidence covered by a limited number of paragraphs within the report. That has had the effect of substantially confining the aspects of the evidence that is in dispute. The Crown has indicated that it wishes to lead evidence of only the following matters derived from the identified paragraphs or parts of Mr Macken’s report:
1)OMCG groups have hierarchical structures that are governed by rules that are often enforced by violence: [9 (v)];
2)OMCG groups are often involved in serious crime including murder, violence, extortion, intimidation and firearm and weapons-related offences: [9 (xi)], Attachment B [29];
3)OMCG groups are invested in a culture of violence, fear and intimidation: [9 (xii)], Attachment A [47];
4)OMCG groups are known to become involved in conflicts with rival OMCGs and internally between members or chapters: [9 (xvi)], Attachment A [51]-[53];
5)OMCG groups have as one of their objectives the commission of serious violent offences for defending OMCG symbols against disrespect and internally to enforce rules: [10 (iii)], [10 (v)], Attachment B [31]-[32];
6)Comanchero members and nominees can leave or be forced out often resulting in penalties including extortion and assault: [12 (vii)], [12 (viii)], Attachment A [33], Attachment B [14];
7)Comanchero OMCG is a criminal organisation having as one of its objectives the commission of serious violent offences, in propagation of its reputation and defence of its indicia: [12 (xiii)], Annexure 4 [5];
8)Comanchero OMCG exhibit characteristics including being governed by rules which are enforced by violence and adhere to a culture of silence towards law enforcement even where members are complainants of crime and employ surveillance and counter‑surveillance including CCTV: Annexure 4 [4 (i)], [4 (j)], [4 (s)], Attachment A [39], Attachment B [16], [26];
9)It is a common characteristic of OMCGs to avoid being detected when they are committing criminal offences, including using face coverings and gloves, to switch off mobile phones, and to use vehicles that are not their own including stolen cars: Annexure 5 [1], [3]-[4], [6]-[7];
10)The three-piece patch is central to the identity of an OMCG member and the nucleus around which the culture of the OMCG revolves. To disrespect the patch is cause for violent confrontation: Attachment A [12], [16].
Following the identification of these particular aspects of the report which the Crown proposed to lead, Mr Pararajasingham, who presented the argument for the accused on this point, accepted that the matters in 6 and 10 above would be admissible, as would most of that described in 8.
So far as the balance of the paragraphs were concerned, the objection was on the basis of relevance as well as the prejudicial nature of the material. So far as prejudice was concerned, he submitted that even though the tendency rule may have no direct application (because it is directed to a tendency of a person rather than a group), the evidence involved the expression of generalised opinions about the propensity of OMCGs and the Comancheros in particular to use violence or engage in a range of criminal activity. That evidence would carry with it the danger of unfair prejudice because it invites impermissible tendency reasoning on the part of the jury, appeals to an instinct to punish the accused for the crimes of a group and may lead the jury to be satisfied with a lower degree of probability that the accused participated in the alleged conduct. The accused relies upon the decision in R v Hawi(No 1) [2011] NSWSC 1647; 220 A Crim R 452 at [14] and [61]. In that case the Crown proposed to lead (without objection) evidence to the effect that prior to becoming a full member of the Comancheros a person was required to serve a period of time as a nominee member. The nominee members were required to follow all directions given by full “patched” members including the performance of menial chores around the clubhouse, providing security at the clubhouse gate or participating in criminal acts. R A Hulme J said (at [14]):
I pause to indicate that I am surprised that the Crown is proposing to lead evidence of the latter. Although no specific objection was taken to it on behalf of any of the accused, I will not permit it unless I hear some compelling submission from the Crown to the contrary.
Counsel for the Crown in this case identified that the Crown case was that:
(a)the accused was a member of the Comanchero OMCG;
(b)the ACT chapter had split and the complainant had burnt his Comanchero OMCG insignia; and
(c)a person linked to the Comanchero OMCG had posted a Snapchat story in March 2018 threatening the complainant “to hand over everything bikes, your AMG, colours everything (watch symbol) or else the HITSQUAD gonna show up to your family’s…”.
He submitted that the evidence as to the culture of the Comanchero OMCG was relevant to the scope of any joint criminal enterprise including the reasons for the intruders’ attendance at the complainant’s house with firearms and their conduct at the house. Counsel for the Crown gave as examples of the relevance of the evidence that it may demonstrate a strong sense of loyalty to fellow members and the president which was required and which made it more likely that the accused was involved. Further evidence that Comanchero OMCG members bore animosity towards breakaway members or members who had “disrespected” the insignia was capable of adding force to the prosecution case. Further, he submitted that the culture of silence towards law enforcement officials was a matter relevant to the complainant’s silence. He submitted that any risk of unfair prejudice arising from evidence that members of the Comanchero OMCG participate in criminal acts involving extortion and violence would be reduced by appropriate directions. As a consequence, he submitted that the danger of unfair prejudice did not outweigh the probative value.
Speaking generally, I am satisfied that the evidence could rationally affect, either directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings: Evidence Act, s 55. The Crown case is that the attack upon the complainant was as a result of the split in the Comanchero OMCG and because of Mr Zdravkovic’s decision to act in a disrespectful manner towards the Comanchero insignia. In assessing the likelihood of that being the motivation, the evidence concerning the hierarchical structure of the organisation, obligations of loyalty within it, the value of the insignia and the consequences of leaving the organisation are all matters of significance. The existence of such a motivation is relevant to the scope of the criminal enterprise and also relevant to the likelihood that one of the persons involved in the offending conduct was the accused who was at the time a nominee or a member of the ACT chapter of the Comanchero OMCG.
The evidence that OMCGs are involved in serious crime including violence, extortion, intimidation and firearms and weapons offences and have a culture of fear, violence and intimidation are all matters which are relevant. Evidence that OMCGs generally, or the Comancheros in particular, engage in serious crime and have a culture of fear, violence and intimidation will make it more likely that the incident giving rise to the charges was associated with members of the Comanchero OMCG. That in turn provides a link with the accused who was a member of that OMCG at the time. It therefore may be a circumstantial element of some significance. It is therefore relevant for the purposes of s 55.
However, the evidence going to offending, violence and the use of weapons is also highly prejudicial. It expressly invites tendency reasoning along the following lines: members of the Comanchero OMCG commit violent crime; this was a violent crime; the accused is a member of the Comanchero OMCG; therefore the accused committed this crime.
I will deal separately with each of the subject matters identified in the paragraphs at [70] above.
(1): The accused accepts that the hierarchical nature of the OMCGs and that they are governed by rules would be relevant and admissible, but objects to the evidence that this hierarchy and/or rules are enforced through violence. The particular probative value of the opinion that violence is used to enforce the hierarchy and rules (as opposed to the existence of the hierarchy and rules) was not identified. The reference to the use of violence creates the risk that the jury will engage in tendency reasoning or alternatively seek to punish the accused for the violence attributed to the organisation generally. In the absence of any identified significance of violence in relation to the hierarchy or rules, I conclude that the probative value of that aspect of the evidence is outweighed by the danger of unfair prejudice to the accused. I will therefore rule that the evidence identified in (1) is admissible except the evidence that the hierarchy and rules are often enforced by violence.
(2), (3), (5): Each of these paragraphs was objected to on the ground that it invited tendency reasoning arising from the association (to use a neutral term) with the Comancheros, that is: that the accused is associated with the Comancheros; the Comancheros is a group which engages in violence and crime; this was a crime of violence; therefore the accused was involved. Having regard to the rationale behind the tendency rule (see the decision of Gageler J in Hughesv The Queen [2017] HCA 20; 263 CLR 338 at [71]-[90]) the risk of unfair prejudice arising from the evidence would, even if directions were given to the jury, outweigh its probative value. I will therefore exclude the evidence referred to in these paragraphs.
(4): This paragraph does not itself make reference to violence, but the portions of the expert report referred to clearly do. In my view, because of the generality of the evidence (as opposed to it being targeted at circumstances alleged to arise in this case), the prejudicial nature of the evidence outweighs its probative value. That would not be the case if the evidence was more confined so that it related to past history of internal divisions or factions with the Comancheros as that would provide context for the events alleged by the Crown. However as it has been identified, the probative value of the evidence is outweighed by the risk of unfair prejudice.
(6): The accused accepted that this was relevant and admissible. I agree.
(7): The evidence is that the OMCG is “a criminal organisation” that has as an objective the commission of “serious violent offences” for the purpose of its reputation and in defence of indicia. Evidence at this level of generality is of limited probative value and creates a significant risk of tendency reasoning in relation to the accused. Its probative value is outweighed by the risk of unfair prejudice. For that reason I will rule that is not admissible.
(8): The accused accepted that the references to the Comancheros being governed by rules was admissible but objected to evidence:
a)that rules were enforced by violence;
b)that there was a culture of silence towards law enforcement even when victims of crime; and
c)that members employ surveillance and counter‑surveillance including the use of CCTV.
The particular probative value of the enforcement of rules by violence was not identified. In the absence of such identification, for the reasons given earlier, it must be excluded under s 137.
So far as the culture of silence is concerned, the accused identified the risk that evidence of the culture of silence within the Comancheros would reflect adversely upon him insofar as he exercised his right to silence prior to or during the trial. That is because his silence may, in light of the expert evidence, be seen by the jury as an indication of criminal behaviour. The Crown submitted that the evidence may be significant if, as anticipated, a number of Crown witnesses associated with the Comancheros turn out to give limited or unfavourable evidence, consistent with the alleged culture of silence. In my view, whether or not the probative value of the evidence outweighs the risk of unfair prejudice depends upon what occurs in the trial. The probative value of the evidence will depend upon what the Crown witnesses associated with the Comancheros say and whether the Crown needs to lead expert evidence to explain the evidence given or the manner in which it was given. It is not possible to anticipate the circumstances at trial with sufficient precision to assess the probative value of the evidence and therefore it is inappropriate to make a ruling under s 192A in relation to it.
So far as the expert evidence in relation to the use of CCTV cameras is concerned counsel for the Crown submitted that this evidence would be led “because Mr Zdravkovic seemed to have a lot of surveillance cameras for a member of the public”. He accepted that the probative value of the evidence was “slight” but submitted that there was no prejudice. He also submitted that the evidence of taking counter‑surveillance measures may be relevant if the evidence in the brief disclosed evidence that the mobile phone of the accused was elsewhere during the incident, giving rise to a possible alibi. He could not say whether that was the case. Upon the evidence as it is able to be identified in argument, I am not satisfied that expert evidence relating to the use of CCTV by Comancheros is relevant. I will rule that it not be admitted. If another reason emerges for the probative value of evidence concerning counter‑surveillance measures then that can be addressed when it does.
(9): The accused objected because the evidence in this paragraph invited unfairly prejudicial tendency reasoning. I agree. The jury will see video evidence of the incident showing the use of face covering and gloves. These are hardly unusual features of offending in Canberra. The use of these methods is of extremely limited probative value and that is outweighed by the risk of unfair prejudice arising if expert evidence is given of its significance. The switching off of mobile phones may fall into a different category, being less common and hence of some probative value. However, for the reasons given in relation to the last category, if the brief discloses this to be an issue in the case then the ruling may be revisited.
(10): The accused accepted that the evidence in this paragraph was relevant and admissible. I agree.
Orders
The orders of the Court are:
1. The evidence obtained from or in consequence of the undercover operation conducted by undercover operatives (UCO 67469834 and UCO 23847098) on 1 September 2018 and 2 September 2018 may be admitted into evidence at the accused’s trial.
2. The evidence of Clive Roberts the subject of the reports dated 26 November 2018 and 12 July 2019 may be admitted into evidence at the accused’s trial.
3. In relation to the evidence of Anthony Macken the subject of the reports dated 11 April 2019 and 9 July 2019 the rulings of the court on those aspects of the report identified at paragraph 12 of the Crown summary of argument dated 12 June 2019 are as follows:
(1): The evidence is admissible except the evidence that the hierarchy and rules are often enforced by violence.
(2), (3), (5): The evidence is not admissible.
(4): The evidence is not admissible.
(6): The evidence is admissible.
(7) The evidence is not admissible.
(8) The evidence that the Comanchero OMCG is governed by rules is admissible.
The evidence that the rules are enforced by violence is not admissible.
The evidence that members employ surveillance and counter surveillance including the use of CCTV is not admissible.
It is not appropriate to make an advance ruling on the evidence that there was a culture of silence towards law enforcement even when members of the club were victims of crime.
(9) The evidence is not admissible.
(10) The evidence is admissible.
4. The Further Amended Application in Proceeding dated 15 May 2019 is otherwise dismissed.
| I certify that the preceding ninety [90] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 16 August 2019 |
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