R v Simmons; R v Moore (No 2)

[2015] NSWSC 143

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Simmons; R v Moore (No 2) [2015] NSWSC 143
Hearing dates:	16, 20, 23-27 February 2015
Date of orders:	04 March 2015
Decision date:	04 March 2015
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	(1) The relevant parts of the conversation recorded on 6 December 2012 and the admissions made by the accused on 9, 15 and 16 January 2013 are admissible. (2) I direct the parties to liaise with one another in an effort to reach agreement as to the form and content of the remaining parts of the evidence recorded by surveillance device. That direction will apply whether the trial be by jury or by Judge sitting alone. (3) The un-redacted version of this judgment is to be available to judicial officers, their staff and legal practitioners as a restricted judgment on the Judicial Information Research System (JIRS) in accordance with the protocols established by the Judicial Commission.
Catchwords:	CRIMINAL LAW – unsolved missing persons investigation – suspected cold case murder – covert investigation using “scenario technique” – [REDACTED] – accused makes voluntary admissions – discretion to exclude admissions that are unfair – relevance of reliability of confessions – where parts of admission implausible and not supported by other evidence – whether police “elicited” admissions – whether accused spoke freely – where accused had not exercised his right to silence when approached by police – warrants authorising use of listening devices expired or invalid – evidence obtained unlawfully – officers sailing close to the wind – [REDACTED] – discretion to admit evidence unlawfully or improperly obtained – highly prejudicial material – discretion to exclude – whether prejudicial material severable – belated indication of application for trial by judge alone
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Controlled Operations) Act 1997 (NSW) Surveillance Devices Act 2007 (NSW)
Cases Cited:	Cleland v The Queen [1982] HCA 67; 151 CLR 1 Donai v R [2011] NSWCCA 173 Dowe v R [2009] NSWCCA 23 DSJ v R; NS v R [2012] NSWCCA 9 Duke v The Queen [1989] HCA 1; 63 ALJR 139 Dupas v The Queen [2012] VSCA 328 Em v Queen [2007] HCA 46; 232 CLR 67 Foster v The Queen [1983] HCA 80; 67 ALJR 550 Gedeon v R [2013] NSWCCA 257 J v Tasmania [2011] TASCCA 7 Ostrowski v Palmer [2004] HCA 30; 218 CLR 493 Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452 Pollard v The Queen [1992] HCA 69; 176 CLR 177 R v Barbouttis (1995) 37 NSWLR 256 R v Burton [2013] NSWCCA 335 R v Cook [2004] NSWCCA 52 R v Cowan [2013] QSC 337 R v Dalley [2002] NSWCCA 284 R v DF [2014] NSWDC 149 R v Fletcher [2005] NSWCCA 338 R v LDV (No 2) [2013] NSWDC 215 R v McCoy [2001] NSWCCA 255 R v MM [2004] NSWCCA 364 R v Mundine [2008] NSWCCA 55 R v Phan [2001] NSWCCA 29; 53 NSWLR 480 R v Shamouil [2006] NSWCCA 112 R v XY [2013] NSWCCA 121 The Queen v Swaffield [1998] HCA 1; 192 CLR 159 Tofilau v The Queen [2007] HCA 39; 231 CLR 396
Texts Cited:	Odger’s Uniform Evidence Law (11th Edition) JD Heydon, ‘Is the Weight of Evidence Material to its Admissibility?’ (delivered at 2014 Paul Byrne SC Memorial Lecture, University of Sydney, 15 October 2014)
Category:	Procedural and other rulings
Parties:	Crown Tony James Simmons (Accused) Kieran Moore (Accused)
Representation:	Counsel: P Barrett (Crown) P Young SC (Simmons) J Stratton SC (Moore) Solicitors: DPP (Crown) Mathew Lorkin Solicitor (Simmons) Hardin Law (Moore)
File Number(s):	2013/150652013/17269
Publication restriction:	This judgment is redacted in accordance with non-publication orders made in R v Simmons (No 5) [2015] NSWSC 333. An un-redacted version is available to judicial officers, their staff and legal practitioners as a restricted judgment on the Judicial Information Research System (JIRS).

Judgment

1. Tofilau v The Queen [2007] HCA 39; 231 CLR 396 was an appeal from the Victorian Court of Appeal in relation to four convictions arising from unrelated trials, each of which involved a particular form of criminal investigation. Kirby J described the method of policing known as the “scenario” technique from paragraph [118] - [119]:

“118.   The ‘scenario’ technique used in the cases varied from one instance to the other.  The following description accurately captures the main ingredients:

‘Typically, the covert technique begins with an apparently chance encounter between the suspect and an undercover operative posing as some sort of criminal.  A relationship is developed between the suspect and the initial contact person, and through that relationship the suspect is gradually drawn into the activities of the criminal gang to which the initial contact supposedly belongs.  As the suspect is drawn into the gang, the activities in which they are involved escalate in seriousness, going from collecting money from brothels as part of an apparent protection racket, to acting as a lookout for robberies, to involvement in a violent 'run through' of a supposed drug dealer's home.  All of this conduct is staged, all of the participants – apart from the suspect – are undercover police officers and none of the activity is in fact criminal; but the suspect is led to believe that it is.’

119.   The initial inducement for the involvement of the accused in the ‘criminal gang’ is the prospect of material gain.  However, the scenario unfolds so as to play on the suspect's fear about past criminality and his hope that the gang (or its "boss") will be able to fix up’ the reason for that fear:

‘At this point, the suspect will be made to believe that the formal police investigation has been re-activated: for example, the police will write to the suspect seeking a DNA sample.  The suspect will then be confronted by his contacts and warned that his past crimes could bring 'heat' onto the gang; but he will also be told that the gang can make the investigation go away.  All that the suspect has to do, he will be told, is to tell the truth; indeed, he may be harangued into doing so, or even interrogated.  The suspect may initially deny involvement, but as the pressure mounts to 'tell the truth', a confession may be made, partial at first and then in full.  At this point, the suspect will be charged, whereupon he may repeat his confession, or may revert to his previous silence, denials or version of events.  In either case, the prospects for success of any prosecution are likely to rest very heavily on the question of whether the accused's confession to the undercover operatives is admissible.’”

2. Kirby J expressed the opinion (at [148]-[149]):

“148.   The following arguments of legal principle and policy tend to favour the exclusion of such evidence:

(1)   The use of such evidence, consciously collected by sworn officers of police, tends to undermine both the principle of the common law protective of a suspect's "right to silence" and also a basic principle of the international law of human rights to which Australia has subscribed. Such international principles can properly inform the expression of the common law of Australia, and add a new dimension, not considered in past cases, for the elaboration of the common law;

(2)   The ‘scenario technique’, by its psychological impact, has an inherent tendency to overbear the will of the target. It deprives the target of a warning about the fact that statements made may be recorded and later used against him or her, notwithstanding that he or she is in fact being interrogated by police. It also tends to deprive the target of access to a lawyer before providing incriminating confessional evidence that may prove critical at trial;

(3)   The techniques used, including deception and trickery, and the bypassing of ordinary police obligations to warn a suspect before interrogation, sit uncomfortably with the accusatorial character of criminal proceedings in Australia. In several recent decisions, this Court has insisted upon the observance of the requirements of the accusatorial trial. One of the most important of such requirements is the need to uphold both the accused's ‘right to silence’ during official investigation and his or her right to be warned about the potential consequences of self-incrimination during interrogation. The use of ‘scenario techniques’ in effect allows undercover police officers to circumvent these requirements. Yet they are requirements that those officers would be expected to observe if wearing their uniforms. In this sense, the techniques tend to undermine special features of the administration of criminal justice that comprise an important check on the power of the state and on its intrusion into the lives of all persons;

(4)   The use of ‘scenario techniques’ also has an inherent tendency to select vulnerable persons, playing on the very ‘hope’ and ‘fear’ that has traditionally been the source of the common law's insistence upon ‘great chastity’ in the reception into evidence of testimony that has been influenced by threats or promises made by persons in authority. Where the question is whether the will of an individual has been overborne, the vulnerability of the individual concerned, whether on grounds of ‘age, background [or] psychological condition’ has conventionally been treated as significant. As Brennan J repeatedly said:

‘Voluntariness is not an issue to be determined by reference to some hypothetical standard; it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused.’

(5)   A particular problem with ‘scenarios’ is that they involve the suspect in conduct which shows him or her to be willing to become implicated in illegal acts, even if no real illegality actually eventuates. This of itself puts the suspect into a disadvantageous position. It does so by a type of entrapment, organised by police. It reveals the suspect in a bad light before the trial judge and jury. It makes it next to impossible for the suspect, ‘whose liberty is at stake and who stands to be condemned on the undercover officer's evidence if his credibility is unchallenged’, to make proper checks on the background of the police officers concerned and to challenge them, given that such officers ‘have necessarily led a Jekyll-and-Hyde life and ... in their undercover work have had to lie convincingly and dissimulate’;

(6)   Especially significant in this respect is the fact that the deception and trickery is performed by agents of the state who deliberately set about pretending to perform illegal and improper acts. Displacing the usual assumption that the state and its officials will always act with honesty, integrity and lawfulness, the conduct of ‘scenarios’ comprises an arguable misuse of state power by persons who are expected to behave in an impeccable manner. It involves agents of the state taking advantage of their own apparent criminality and wrong-doing;

(7)   Pessimists might view official involvement in deception, trickery and apparent criminality as a further instance of the attainment of state objectives, and in particular criminal confessions, through undesirable practices (such as torture, prolonged isolation, sleep deprivation, humiliation and psychological manipulation of suspects; and international rendition). As a matter of general principle, the extension of such practices is not to be encouraged. Ultimately, the only institutions that are likely to curb them are the courts;

(8)   Where legislation expressly authorises the employment of novel investigative techniques, individual rules will generally be stated in ways that take into account the need to restrain state officials from descending to unacceptable conduct for the purpose of securing evidence in a particular case. The fact that no such legislation has been enacted in relation to ‘scenario techniques’ should not be permitted to found an assumption that the use of such techniques is subject to no legal restraint. It is possible for the cost of obtaining relevant evidence to be too high; and

(9)   The grave nature of the crime of homicide and the affront that unsolved crimes (or those that must remain unsolved because of the exclusion of inadmissible confessional evidence) occasion do not license disregard for the basic principles of our law. In the gathering of evidence, the end rarely, if ever, justifies the deployment of any means. Were it otherwise, routine torture in the cause of gathering evidence to solve the most serious crimes might be justified, despite the affront that such conduct occasions to human dignity, as well as the danger it presents for the reliability of the resulting testimony and for the integrity of those state officials involved.

149.   Some evidence, even if arguably relevant and reliable, is excluded by the operation of legal rules because of the basic principles observed in our system of criminal justice. Those principles pervade the administration of criminal law in Australia. The securing of convictions, even in cases of unsolved homicide, must comply with the law, which reflects fundamental notions of justice and fairness. The state is a great teacher in society. If it sets debased standards for itself, there is a risk that such standards will proliferate and result in a lowering of confidence in the state and its officials and of respect for the rule of law.”

[References and citations omitted]

3. The other six High Court justices concluded that the evidence was admissible.

4. In the present case a similar technique was employed in an attempt to solve a murder that allegedly occurred in the town of Sofala, near the city of Bathurst, in 2009. In June of that year Andrew Stephen Russell went missing. Because he had committed an earlier assault on Mr Russell, suspicion attached to the accused man, Tony James Simmons. The police employed a number of orthodox policing techniques without successfully obtaining evidence that they considered capable of supporting a prosecution for the charge of murder. Rumours, hearsay and scuttlebutt—most of it inadmissible, little of it cogent—pointed to the accused as responsible for Mr Russell’s disappearance. However, there was a dearth of direct or admissible evidence against him. So it was that in around September 2012 a number of undercover police officers, acting in concert, played out more than 20 “scenarios” the objective of which was to secure a confession from the accused implicating him in the disappearance and/or murder of Mr Russell.

5. More than 10 officers were involved in the covert operation. It culminated on 15–16 January 2013 in a series of inculpatory statements made by the accused. Those statements were recorded by various surveillance devices.

6. The accused seeks exclusion of the evidence and submits that it would be unfair to allow the prosecution to use the evidence having regard to the circumstances in which the admissions were made (s 90 Evidence Act 1995 (NSW)), that the probative value of the evidence is outweighed by the danger of unfair prejudice (s 137) and that the desirability of admitting the evidence does not outweigh the undesirability of admitting it having regard to the illegal and improper way in which it was obtained (s 138).

7. The accused submits that the evidence was obtained in contravention of the provisions of s 7 of the Surveillance Devices Act 2007 (NSW). It will be necessary to return to the details of that submission, but it is clear that from September 2012, a series of surveillance device warrants were obtained from various justices of the Supreme Court. However, it is common ground that parts of two critical conversations on 9 and 15 January 2013 were not covered by any surveillance device warrant either because any such warrant had expired or because the terms of the warrant did not extend to conversations that occurred outside of a specified vehicle.

8. While the accused acknowledges the decision in Tofilau v The Queen, he submits that it is distinguishable on a number of factual and legal bases and on the basis that it was a decision under the common law. It is also submitted that Tofilau v The Queen was predominately concerned with the question of voluntariness.

The “scenarios”

9. I will now refer in a little more detail to the narrative of the scenarios that were played out between September 2012 and 16 January 2013. [REDACTED].

10. The first contact took place on 18 September 2012 when UCO 1 arranged to be introduced to the accused. [REDACTED] and Mr Simmons expressed an interest and provided his mobile telephone number.

11. On 25 September 2012 UCO 1 met the accused and enlisted his assistance in [REDACTED].

12. [REDACTED].

13. [REDACTED].

14. On 9 October 2012 it is alleged that the accused said to UCO 3 words to the effect of “they tried to pin me with some bloke that disappeared, they were listening to my phone and got me for supply”. As far as I can tell, that was the first occasion on which there was any reference to the police investigation into the disappearance of Mr Russell. I pause to note that the reference to the accused being arrested for supplying was one of scores of occasions during the course of the recorded conversations when the accused spoke of his involvement in criminal activities. This included his involvement in drug use and supply, his involvement in offences of significant violence, his possession of firearms as well as the fact that he had served a term of imprisonment and was on parole at the time.

15. [REDACTED].

16. [REDACTED].

17. [REDACTED].

18. [REDACTED].

19. [REDACTED].

20. [REDACTED].

21. [REDACTED].

22. [REDACTED].

23. [REDACTED].

24. [REDACTED]. That meeting involved a long car trip and throughout the course of that trip there was a lengthy, not to say tedious, conversation recorded by surveillance device. Amongst other things, the accused made comments about the disposal of bodies and in particular referred to dropping bodies down mine shafts as an effective and convenient method of disposal. He said:

“Fuck drop it in, in them cunt, that’s where the coppers thought I’d dropped old Bud, reckon I dropped him down mine shaft, I said boys don’t you go down the mine shaft and have a look mate”

25. He referred to “fuckin’ old bud that went missing” and went on to say “why would I do that [i.e. drop the body in a mineshaft], wouldn’t it be easier if I dig a hole and bury him?” He questioned the police theory as to why he would go to the trouble of using a mineshaft when he could just “dig a hole and bury him”. He spoke about stories going around town that suggested he had:

“hacked him in pieces and fed him to the pig and fuckin’ gutted him and hung him, there is some hectic stories going around man. What the fuck?”

26. On a great many occasions during the conversation on 6 December 2012 the accused made admissions, or boasted, as to his involvement in a variety of criminal activities including car thefts, break enter and steal and being on parole.

27. On 12 December 2012 the accused, along with UCO 3, UCO 1 and others, met with UCO 9. [REDACTED].

28. On 13 December 2012 a large group of the undercover officers along with the accused went on what was described as a “crabbing” trip on the Hawkesbury River. Again, a large number of comments by the accused indicated his involvement in a variety of crimes including drug supply. At least part of the purpose of this trip, and many of the earlier visits to Eastern suburbs beaches and restaurants, [REDACTED]. Beers flowed and seafood was consumed. [REDACTED].

29. [REDACTED].

30. On the 20 December 2012 [REDACTED].

31. On 3 January 2013, [REDACTED].

32. On 8 January 2013 [REDACTED].

33. [REDACTED].

34. [REDACTED].

35. In the course of recorded conversations on 9 January 2013, the accused began to speak more openly about the investigation of the 2009 disappearance of Mr Russell and his involvement in the events. The conversation started with the accused referring to what the police—wrongly, on his account—believed but it quickly became a series of admissions, initially by clumsy metaphor, to his involvement in the crime. [REDACTED].

26. It will be necessary to return to the things that the accused said and the circumstances in which he said them in more detail but in general he claimed that he and a co-accused had pushed the victim off a cliff and later put the body in a mineshaft. Reference was made to the co-offender by his first name (Kieran), the car or cars used in the offence and steps that were taken to cover up the murder, such as burning the car, disposing of clothing and agreeing not to speak about the matter.

27. [REDACTED].

28. [REDACTED] but the UCOs also sought to be shown the area where the murder of Andrew Russell was committed and where his body was buried.

29. The accused and UCOs searched unsuccessfully for the mineshaft where the accused claimed that he had disposed of the body. The mineshaft was never found either on that day or during the course of any subsequent investigation.

30. UCO 4 was present during the attempt to find the mine shaft. After he left, UCO 1 and the accused attempted to go to the cliff where the deceased had allegedly been pushed off. This was said to be a cliff known as Wallaby Rock located above a local swimming hole on the Turon River. However en route to the cliff their motor vehicle became bogged and it was necessary to recall UCO 4 and engage the assistance of a member of the public to get the car out of the bog. They never attended the cliff face where the accused claimed to have pushed the deceased to his death.

31. In the course of the lengthy conversation with UCO 1, the accused made a number of admissions as to his involvement in the disappearance and death of Mr Russell. [REDACTED].

32. The culmination of the operation occurred on Monday, 16 January 2013. On that day there was a meeting between UCO 10, the accused and UCO 1. [REDACTED]. In the course of the conversation, and on direct questioning from UCO 10, the accused made a number of assertions and admissions concerning his involvement in the disappearance and murder of Andrew Russell. The deceased was named in the course of that conversation as “Andrew” and reference was made to the co-accused, namely Kieran Moore.

The voir dire

43. The voir dire was conducted between 16 and 27 February 2015. On the first day of the voir dire, the Crown tendered a 13 volume brief (Ex VD 1) and indicated that I needed to familiarise myself with the entirety of volumes 6 through 11, comprising thousands of pages of transcripts of the conversations recorded between the accused and various undercover operatives. I read those volumes over the following days. After requesting some guidance from the parties, I received correspondence that “the parties agree we are not in a position to agree that all the Listening Device transcripts need not be read”.

44. In the course of reading the statements, I uncovered recordings that had not been transcribed including a crucial conversation on 6 December 2012 and some apparent errors as to the identification of the speakers in a number of the conversations. In one case, a transcript of the [REDACTED] on 29 November 2012, not one of the five or six speakers was identified in the 75 page transcript. As a result, the tenor of this conversation was largely incomprehensible to me. I was assured that the various deficiencies were in the process of being remedied.

45. On Friday 20 February 2015 (that is the fifth day scheduled for the trial and voir dire) the accused sought and obtained an order for short service of a subpoena seeking production of a variety of documents including (but not limited to) a number of police logs summarising telephone intercepts of the accused telephone(s) during late 2012 and early 2013. On Tuesday 24 February the Police Force appeared, represented by counsel and the NSW Crown Solicitor’s office, and objected to the subpoena on a number of bases. Eventually, the parties reached some agreement as to what was to be produced and the voir dire resumed

46. As to volumes 1-5 of the brief, I was advised by the prosecution that I need only read the following documents for the purpose of the voir dire:

Volume 1

Tab         Document

Statement Jodi Biles—25.6.13

3 page letter from Tony Simmons —10.1.12

2 page letter from Tony Simmons dated—3.2.12

Statement - Jodi Biles—23.7.09

Audio interview and transcript – Jodi Biles—23.7.09

Audio interview and transcript – Jodi Biles—30.7.09

Audio interview and transcript – Jodi Biles—29.8.11

Statement of Michael O’Neill—4.8.09

Annexure A – sketch of Littlebourne Street

Statement – Luke Salter—18.1.13

Statement – Jodi-Lee Wright—25.6.09

Audio interview and Transcript – Jodi-Lee Wright—29.7.09

Volume 2

Tab         Document

Statement – Kypros Kypri—22.2.13

Audio interview and Transcript— 9.5.12

Statement – Susan Wallace—25.6.09

Statement – Bruce Herbert—25.6.09

Statement – Trevor Peters—26.8.11

Audio interview and transcript– Jakob Peters (R0224668)— 13.3.12

Statement – Kelly Burns—13.3.12

Audio interview and transcript— 24.6.09

Audio interview and transcript – Kelly Burns—25.7.09

Statement – Peter Flanagan—12.8.09

Audio interview and transcript—6.7.09

Statement – Ian Woodford—12.8.09

Audio interview and transcript—6.7.09

Statement – Casey Benger—7.7.09

Notebook statement – Paula Morrison—16.8.09

Audio interview and transcript

47. The accused did not indicate whether it was necessary to read any other parts of the brief of evidence. However, I was provided with a folder entitled “admissions” which comprised parts of the brief and summaries of the critical and impugned admissions (MFI 3).

48. Other relevant material included the surveillance device warrants (Ex VD 1, volume 5), a statement of the accused dated 24 July 2009 (Vol 3, Tab 142) and a statement of Detective Senior Constable Maclean dated 19 January 2014 (Vol 3, Tab 109).

49. Four of the undercover police officers (UCO 1, UCO 3, UCO 4 and UCO 10) gave evidence on the voir dire as did the officer co-ordinating the covert operation (Sgt Lukacs) and the officer in charge of the investigation (Det Sgt Fawkner).

50. A large map or plan of the area around Sofala was tendered (Ex VD 2) as were a list of telephone records relating to a telephone associated with the accused (Ex VD 3) and a telephone log that extracted snippets of material from calls intercepted from the accused’s telephone between 5 December 2012 and 16 January 2013 (Ex VD 4). The audio recording of 6 December 2012 (which had not previously been transcribed) was played in Court and the transcript and CD became Ex VD 5(A) and (B). Ex VD 6 was an extract from the transcript of the evidence given by a witness (Jodi Biles) at the committal hearing on 18 March 2013. Ex VD 7 was a particular extract from the telephone intercept log that showed the accused expressing a desire to purchase drugs with part of the money he had been paid following the [REDACTED] on 29 November 2012.

Some of the relevant legislation and case law

51. The accused relies on ss 90, 137 and 138 of the Evidence Act 1995 (NSW). Those sections are in the following terms:

“90 Discretion to exclude admissions

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

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

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

137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

138 Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”

52. Section 90 is a statutory reformulation of the common law discretion to exclude unfair admissions which had been considered in cases such as Cleland v The Queen [1982] HCA 67; 151 CLR 1 at 34, Duke v The Queen [1989] HCA 1; 63 ALJR 139 and Foster v The Queen [1983] HCA 80; 67 ALJR 550.

53. Section 90 has been considered in a number of cases. This is clearly a case where the accused made an admission (more correctly, as the Crown points out, a number of admissions) and the evidence is sought to be adduced by the prosecution: see section 90(a). The breadth of sub-paragraph (b) has been commented upon more than once and Gleeson CJ and Hayden J said in Em v Queen [2007] HCA 46; 232 CLR 67 at [56]:

“the language in s 90 is so general that it would not be possible in any particular case to mark the full extent of its meaning.”

54. The Crown Prosecutor submitted that the reliability of the admissions was not a matter that could be taken into account in considering the fairness discretion created by s 90. I am unable to accept that submission. In Em v The Queen Gleeson CJ and Hayden J at [72]-[73] concluded that an initial concession by the appellant (subsequently withdrawn) that “the reliability of evidence was a factor affecting the fairness of its use” was correct.

55. In The Queen v Swaffield [1998] HCA 1; 192 CLR 159 Toohey, Gaudron and Gummow JJ said at [76]-[78]:

“76.   The wider the operation given to the principle that, to be admissible, a confession must be voluntary, the less scope there is, in practice, for the exercise of the unfairness discretion. Particularly is that so in relation to improprieties calculated to cause the making of an untrue admission. It may be expected that improprieties calculated to have that effect will often impact on the exercise of a free choice to speak if that notion is given its full effect. However, it will not necessarily be so in every case.

77.   In R v Lee, the likelihood of an impropriety resulting in the making of an untrue admission was treated as "relevant, though not necessarily decisive". As the authorities stand, the likelihood of an unreliable confession does not mandate the exercise of the unfairness discretion to exclude that evidence. Nevertheless, it is hard to understand why, in such circumstances, the discretion would not be exercised in that way, particularly when regard is had to the consideration that the risk of an untrue admission is the rationale for the inadmissibility of a non-voluntary confessional statement.

78.   Unreliability is an important aspect of the unfairness discretion but it is not exclusive.”

56. Odger’s Uniform Evidence Law (11th Edition) states at [1.3.5760] “the High Court has held that it would be good reason for exercise of the common law rule if a trial judge considers that police conduct may have brought about an unreliable admission” and cites the following authorities for that proposition: Cleland v The Queen (1982) 151 CLR 1 at 34; Duke v The Queen (1989) 63 ALJR 139 at 140, 141, 144 and 147; Pollard v The Queen (1992) 176 CLR 177; Foster v The Queen [1983] HCA 80; 67 ALJR 550 at 554-557.

57. On the other hand, “if the evidence is admitted, it remains open for the confessionalist to argue, and for the tribunal of fact to accept, that, even if the statement was made, it is not reliable”: Tofilau v The Queen at [53] (Gummow and Hayne JJ).

58. It has been held that the probative value of the evidence has “little significance in the exercise of the discretion under section 90”: see R v Em [2003] NSWCCA 374 at [110], cf R v Phan [2001] NSCWWA 29; 53 NSWLR 480. Further in R v Em, Howie J considered at [113] that the seriousness of the offence was not a factor relevant to s 90. However, Gummow and Hayne JJ appeared to take a contrary view in Tofilau v The Queen at [112].

59. Neither counsel appearing before me suggested that there was any relevant legal distinction between the common law unfairness discretion and the operation of s 90 in the context of the issues that arise in this case.

60. The majority judgments in Tofilau v The Queen make it clear that the fact that the accused was tricked by the series of ruses and make believe scenarios enacted convincingly by the police is not a matter that renders the evidence inadmissible as relevantly unfair. While Tofilau v The Queen was decided under the common law, and while the High Court was largely concerned with considerations of voluntariness (“basal” voluntariness and otherwise), various parts of the judgment show that their Honours also turned their minds to the common law discretion to exclude evidence either because of unfairness or because of illegality and impropriety leading to a conclusion that the confession was obtained at too high a price. Such a submission had been made by one of the four appellants (Clarke). Callinan, Heydon and Crennan JJ rejected the submission at [413]:

“413. It was reasonable for the police to seek to employ this technique, new in Australia, in carrying out their important duty to investigate an old crime. The technique was employed in a discriminating way, with considerable care being taken to avoid illegality. No doubt psychological pressure was built up, but conventional police interrogation of the most proper kind naturally involves pressure. Counsel submitted that the process was "designed to circumvent the [appellant's] right to silence". Clarke was in fact an experienced criminal who understood that he did not have to answer anyone's questions. He had not claimed any right to silence when interviewed by non-undercover officers soon after the murder. He actively cooperated in the questioning by the undercover officers. The questioning took place in the course of a relationship which he entered freely, and did not exploit some pre-existing or collateral relationship. The interrogation elements in the conversations were patent, and consistent with the roles which he believed the undercover officers were occupying. He had not been charged, and there was no proper basis to charge him. There was no illegality and no breach of Police Standing Orders. Part III Div 1 Subdiv 30A of the Crimes Act did not apply. The failure of other investigative methods which made it necessary to conduct the undercover operation also made it necessary for a process of active "elicitation" to take place. The admissions eventually obtained formed a significant part of the prosecution case. The operatives stressed the need to tell the truth. The undercover officers did not prey upon any special characteristics of Clarke related to his gender, race, age, education or health. The means of elicitation were not so disproportionate to the problem confronting the police as to be inherently unfair or contrary to public policy.”

61. Gleeson CJ at [24] agreed with those observations. See also Gummow and Hayne JJ at [112]-[114].

62. Counsel for the accused has also brought to my attention the decision of a single judge of the Queensland Supreme Court in the case of R v Cowan [2013] QSC 337. In that case, a similar “scenario” technique was used by undercover police officers attempting to obtain confessional material against the accused in relation to the disappearance of a child on the Sunshine Coast. Atkinson J borrowed liberally from the passage I have cited above from Tofilou v The Queen when he concluded at [121]:

“121.   No doubt psychological pressure was built up, but conventional police interrogation of the most proper kind naturally involves pressure. Cowan had experience of police questioning and knew that he was not obliged to answer questions which might incriminate himself. He had not claimed any right to silence when questioned by police in relation to this matter previously. He actively co-operated with the undercover officers. The questioning of him took place in the course of a relationship which he entered freely and did not exploit some pre-existing or collateral relationship. There was no illegality and the rules relating to questioning by covert police did not apply. The failure of other investigative methods made it necessary and desirable to conduct an undercover operation to elicit the truth from Cowan either to substantiate his involvement or exonerate him. The operatives stressed the need to tell the truth. The undercover officers did not prey on any special characteristics of Cowan related to his gender, race, age, education or health.”

63. There are a number of features of R v Cowan that are distinguishable from the present case. Most starkly, the admissions obtained from Cowan led the police to an area where a number of human bones were located. The admissions included the disclosure of information that could only have been known to the perpetrator. As will be seen, that is not the situation here. In this case, no supporting evidence was found at the scene nominated by the accused and Senior Counsel mounts a submission that the admissions are unreliable.

64. Both parties took me to the majority judgment (McColl JA and Latham J; Adams J dissenting) in Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452. That was one of a number of cases in which the complainant in an historic sex case confronted the accused. Admissions were made and covertly recorded by the police. This is a common investigative technique in such cases and the admissibility of confessional material obtained in this way has been considered on more than one occasion. A case (or cases) in which Judge Colefax SC excluded such evidence in the District Court is to be considered by the Court of Criminal Appeal on 3 March 2015: R v LDV (No 2) [2013] NSWDC 215; R v DF [2014] NSWDC 149. These cases are helpful but it should be observed that the two investigative techniques are quite different. In deference to the submissions of experienced counsel on both sides, I have considered the non-exhaustive list of factors said to be relevant by McColl JA and Latham J in Pavitt at [70]:

“70.   In our view, without being exhaustive, the following propositions relevant to the present case can be extracted from the authorities to which we have referred concerning the admissibility of covertly recorded conversations:

(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.”

65. In Swaffield and Pavic v The Queen [1998] HCA 1; 192 CLR 159 the High Court considered two unrelated appeals each of which raised the operation of the common law discretions to reject confessions that had been voluntarily made but in circumstances where the accused was deceived by covert police operations. The cases were decided by reference to the question of whether the admissions were elicited in breach of the accused’s right to choose whether or not to speak: see, for example, Toohey, Gaudron and Gummow JJ at [97]-[98]. In Swaffield’s case, the Court held that the admissions were correctly excluded where the suspect had twice exercised his right to silence and the admissions were obtained by an undercover police officer. In Pavic, the Court held that the evidence was correctly admitted where the admissions were made to a friend acting on behalf of police and where the admissions were made in the course of a normal conversation with no flavour of an interrogation.

66. In Em v The Queen [2007] HCA 46; 232 CLR 67 the accused told police that he would refuse to answer questions if they used audio or video recorders to record the conversation. The police later obtained warrants authorising the use of covert listening devices. The officer met the accused in a park and told him that he did not have to speak to them but failed to tell him that the conversation was being recorded and may be later used in evidence. It was held that it was not unfair to use the admissions against the accused in those circumstances. Gleeson CJ and Heydon J said at [78]:

“78.   When all the circumstances analysed above are considered, it is impossible to conclude that that freedom was impugned. The appellant knew he was speaking to police officers. He knew they were investigating two home invasions, one involving a murder. He knew, having been cautioned several times on 22 February and 24 April 2002, that he was not obliged to speak to the police officers. He spoke to those officers knowingly and willingly. He gave a version of events. … He had an awareness of his rights and a capacity to act on them. While s 281 compelled the detectives to record what was said if they wanted to tender it, the appellant possessed no right not to be recorded once the listening device warrants had been obtained from O'Keefe J. The appellant was free to leave. The questioning was not overbearing. As counsel for the appellant conceded, neither legislation nor the Police Commissioner's Code created any obligation on the detectives to caution him. The appellant did not know the conversation was being recorded, but he accepted that that did not make it unfair to receive the evidence. The appellant did not contend that he spoke because of any threat of violence, or any illegality, or any impropriety. He did not contend that the circumstances were likely to affect the truth of the admissions. He thought that the conversation could not be used against him in criminal proceedings, but that cannot of itself make it unfair for the conversation to be received in evidence. The detectives kept secret from him the fact that the conversation was being recorded, and hence his freedom to speak was affected in the sense that a factor that was important to him was kept secret from him. But that is true of virtually all cases of lawfully authorised secret surveillance.”

67. Gummow and Hayne JJ analysed the operation of s 90 at [107]-[112] and concluded at [116]:

“116.   The appellant's argument, shorn of expressions like ‘trick’ and ‘trickery’, amounted to the propositions that what the police did, by interviewing the appellant as they did, was to be condemned, and that he had been misled into saying something that could be used in evidence against him. Neither of these propositions, whether taken separately or together, established that use at his trial of the evidence of what he said to police would be unfair.”

68. As I have said, the Crown Prosecutor submitted that the unreliability of the admissions is not relevant under s 90. He went on to submit that reliability “rather should be a consideration, if at all, under s 137”. There is some tension between that submission and a number of decisions of the New South Wales Court of Criminal Appeal.

69. The extent to which questions of credibility and reliability of evidence might be relevant to the discretion to exclude evidence under s 137 (where the probative value is outweighed by the danger of unfair prejudice) is controversial. There is direct conflict between the authorities in this state and decisions of the Court of Appeal in Victoria. In Dupas v The Queen [2012] VSCA 328 a five member bench of the Victorian Court of Appeal recognised that it should only decline to follow the New South Wales authority of R v Shamouil [2006] NSWCCA 112 if it was satisfied that it was “plainly wrong”. The Court concluded at [226] that R v Shamouil was:

“226. Contrary to a long line of established authority and to considered dicta of the High Court concerning the common law. That conclusion does not give effect to the plain language of the statute, the context or the extrinsic material, which reveal a legislative intention that trial judges should continue to have the power to exclude admissible evidence in order to minimise the risk of wrongful conviction. The effect of the decision in Shamouil is to undermine an important safeguard which the common law provided against an unfair trial and which the legislatures intended should be replicated in the Evidence statutes.”

70. Their Honour’s were aware that R v Shamouil had been followed in Tasmania (J v Tasmania [2011] TASCCA 7) but found themselves at [228] “compelled to the conclusion that we should depart from the reasoning and conclusion in Shamouil”.

71. In R v XY [2013] NSWCCA 121 the New South Wales Court of Criminal Appeal considered the conflict in the authorities and sat a bench of five to do so.

72. Basten JA decided at [65] that there was “no compelling reason to depart from the general approach accepted in Shamouil”. His Honour was of the view that “it was doubtful as to how far Dupas departed from the principles stated in Shamouil, read in context”.

73. On the other hand, Simpson J considered that the two decisions were “in sharp conflict” (at [97]). At [160]-[161] her Honour set out the position of the two courts:

“160.   What this Court said Shamouil was:

"60 The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility. There is no reason to change that approach.

...

64 To adopt any other approach would be to usurp for a trial judge critical aspects of the traditional role of a jury. In the case of evidence of critical significance, such a ruling by a trial judge would, in substance, be equivalent to directing a verdict of acquittal on the basis that the trial judge was of the view that a verdict of guilty would be unsafe and unsatisfactory. As the High Court said in that different, but not irrelevant, context in Doney v The Queen [[1990] HCA 51] [1990] HCA 51; 171 CLR 207 at 275, this is not a permissible 'basis for enlarging the powers of a trial judge at the expense of the traditional jury function'. In my opinion, the same is true if a trial judge can determine the weight of evidence when applying s 137."

161.   What the Victorian Court of Appeal said in Dupas was encapsulated in para [63], set out below:

"For the following reasons, we are compelled to the view that Shamouil and the other decisions that have applied it are manifestly wrong and should not be followed. We are compelled to the conclusion that we should depart from the reasoning and conclusion in Shamouil as error can be demonstrated with a degree of clarity by the application of the correct legal analysis ... Our conclusions are as follows:

(a) The common law did require the trial judge, in assessing probative value, to evaluate the weight that the jury could rationally attach to the evidence. The contrary conclusion was inconsistent with a continuous line of High Court authority.

(b) The legislative intention, as disclosed by the language of s 137 and its context, is that the task under s 137 is the same as that at common law.

(c) The trial judge undertaking the balancing task is only obliged to assume that the jury will accept the evidence to be truthful but is not required to make an assumption that its reliability will be accepted. The phrase 'taken at its highest' is more appropriately used in considering a no case submission, when the judge must accept that the jury may find the evidence credible and reliable.

(d) In order to determine the capacity of the evidence rationally to affect the determination of a fact in issue, the judge is required to make some assessment of the weight that the jury could, acting reasonably, give to that evidence. Where it is contended that the quality or frailties of the evidence would result in the jury attaching more weight to the evidence than it deserved, the trial judge is obliged to assess the extent of the risk. That does not require the trial judge to anticipate the weight that the jury would or will attach to it. The judge is obliged to assess what probative value the jury could assign to the evidence, against which must be balanced the risk that the jury will give the evidence disproportionate weight.

(e) So to construe s 137 accords with the language of the statute and its context. To construe it otherwise does not.

(f) Such a construction does not involve any enlargement of the powers of a trial judge or any encroachment upon the traditional jury function."

[The emphasis was included by Simpson J]

74. Her Honour referred to her earlier judgments in R v Cook [2004] NSWCCA 52, R v Mundine [2008] NSWCCA 55, R v Fletcher [2005] NSWCCA 338 and her concurrence in R v Shamouil itself. Her Honour adhered to her earlier stated views.

75. Hoeben CJ at CL said (at [86]-[89]):

“86. In relation to s137 of the Evidence Act 1995, subject to the following observations, I agree with Basten JA and Simpson J that when assessing the probative value of the prosecution evidence sought to be excluded, the Court should not consider its credibility, reliability or weight. I specifically adopt what was said by Basten JA at [66] - [67].

87. Accordingly, I agree that the Courts of NSW should follow R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 when applying s137 of the Evidence Act 1995.

88. Where I differ from their Honours is as follows. When assessing the probative value of the prosecution evidence sought to be excluded, i.e., its capacity to support the prosecution case, a court can take into account the fact of competing inferences which might be available on the evidence, as distinct from determining which inference or inferences should be or are most likely to be preferred. It was that to which the court was referring in DSJ v R; NS v R [2012] NSWCCA 9 at [10] (Bathurst CJ); [11] (Allsop P) and [78] (Whealy JA).

89. Here, as Basten JA, Blanch and Price JJ have pointed out, there were alternative inferences available which were inconsistent with the prosecution case and which were objectively plausible. That is a matter which can properly be taken into account when carrying out the balancing exercise required by s137 to determine whether the probative value of the evidence is outweighed by its prejudicial effect.”

76. Blanch J provided a helpful summary of the authorities at [189]-[204] without ever referring to the decision in Dupas. At [201]-[202] Blanch J noted with apparent approval the approach taken by Bathurst CJ and Whealey JA in DSJ v R; NS v R [2012] NSWCCA 9 at [201]-[203]:

“201.   In assessing the probative value of evidence in DSJ v R; NS v R [2012] NSWCCA 9 Bathurst CJ said at [10]:

"However, as Whealy JA has pointed out (at [78]-[81]), the trial judge in forming a view as to whether the evidence has significant probative value must consider by reference to the evidence itself or other evidence adduced or to be adduced by the party tendering it, whether there is a real possibility of an alternate explanation inconsistent with (in this case) the guilt of the party against whom it is tendered."

(Allsop P agreed with that comment at [11]).

202.   At [78] Whealy JA said:

"... the trial Judge must ask whether the possibility of such an alternative explanation substantially alters his (or her) view as to the significant capacity of the Crown evidence, if accepted, to establish the fact in issue. Does the alternative possibility, in the Judge's view, rob the evidence of its otherwise cogent capacity to prove the Crown's case? If it does not, the trial judge may safely conclude that the evidence has significant probative value."

203.   The judgment of Whealy JA was endorsed by Bathurst CJ, Allsop P, McClellan CJ at CJ and McCallum J.”

77. Price J said at [224] that it was unnecessary to consider the conflict in the authorities but said at [225]:

“225.   In my opinion, the approach taken in Dupas does much to avoid evidence being before a jury which in reality (rather than being taken at its highest in favour of the Crown) has little probative value and is outweighed by the danger of unfair prejudice to the accused.”

78. In R v Burton [2013] NSWCCA 335 Simpson J observed that DSJ v R was decided under s 98 of the Evidence Act (and not s 101 or s 137) and held at [181] that it “does not necessarily follow that the identical approach must be taken with respect to contentious evidence where objection is taken under s 137”. Her Honour noted at [183] the three steps required by s 137 and at [184] held that the “exercise required by s 98 is different”. As to the decision in XY, Simpson J decided at [194]:

“194. Accordingly, by a majority (Basten JA, Hoeben CJ at CL and myself, Blanch J not expressly deciding, Price J contra) the Court decided that trial judges in NSW should continue to disregard questions of credibility, reliability and weight in dealing with the admission of evidence challenged under s 137. However, Hoeben CJ at CL and Blanch J further considered that the existence of "competing inferences" (or alternative interpretations) was relevant to the assessment of probative value.

79. It was on the basis of the views expressed by Hoeben CJ at CL and Blanch J that the primary Judge based his ruling. Simpson J held that this was wrong and the decision was overturned. Her Honour concluded the discussion on s 137 as follows at [196]-[197]:

“196. I am unable to accept that the existence of "competing inferences" available to be drawn from (or alternative interpretations of) the proposed prosecution evidence has any part to play in the assessment of probative value for the purpose of s 137 of the Evidence Act. That is because of the different exercise required by (for example) s 98, and s 137. Section 98 requires an assessment of the significance of the probative value of the evidence tendered as coincidence evidence in the context of the whole of the case of the tendering party. That is why, in DSJ, it was held that the existence of alternative explanations could have a bearing on the significance of the probative value of the evidence.

197. Section 137 requires assessment of the probative value of the evidence without regard to other evidence in the Crown case (s 137 applies only to evidence tendered by the prosecution) but balanced against the danger of any unfair prejudice.”

80. RA Hulme J and Barr AJ agreed with Simpson J.

81. Neither counsel before me made any submission on the conflict between the decisions in Victoria and NSW. Nor was I taken in any detail to the authorities on s 137 and the extent to which reliability and credibility have a role to play. In the course of the Crown Prosecutor’s submissions (T 219), Mr Young SC brought the following passage from Shamouil (at [63]) to my attention:

“63.   There will be circumstances, as envisaged by Simpson J in Cook supra, where issues of credibility or reliability are such that it is possible for a court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue. In that limited sense McHugh J’s observations in Papakosmas that “considerations of reliability are necessarily involved.”

82. A former High Court judge has expressed the opinion that the Victorian Court of Appeal was wrong in Dupas but that the question of whether “probative value” has a different meaning depending on which section of the Evidence Act is under consideration remains open. See the article JD Heydon, 2014 Paul Byrne SC Memorial Lecture, “Is the Weight of Evidence Material to its Admissibility?”

83. In light of the judgments of Hoeben JA, Blanch and Price JJ in XY, the position in New South Wales is unclear. What is clear is that the reliability of evidence will only be taken into account under s 137 in limited and restricted circumstances. Those are where the evidence is so unreliable that it would not be “open” for a jury acting reasonably to use it in the way contended by the Crown. Whether the existence of “competing inferences” that may rob the evidence of its capacity rationally to assist the Crown case is a consideration remains controversial in view of the judgments of Hoeben CJ at CL and Blanch J in XY. However, I feel that I am bound to apply the later (and unanimous) decision in R v Burton regardless of any misgivings that I have arising out of the various views expressed in XY.

84. It is against that overview of the legal landscape that I turn to consider the admissions, the circumstances in which they were made and the issue of the danger of unfair prejudice.

The admissions and the circumstances in which they were made

85. As in most cases, the scenario technique in this case was used because conventional forms of policing had failed to solve the disappearance of Mr Russell. That the case was “cold” was highlighted by some of the things that Mr Simmons said to the undercover police. For example, on 9 January 2013 he told UCO 1 that the “coppers were fucking hopeless” and “I even laughed at the cunts” (Tab 267 p 55). On 15 January 2013 he said the coppers were digging in the wrong place and that “they’re bananas man, they got no idea” (T 272 p 155-156).

86. On 9 October 2012 the accused told UCO 3 about the police investigation when he said “they tried to pin me with some bloke that disappeared, they were listening to my phone and got me for supply”. This was an important moment because it was the first time that the topic of Mr Russell’s disappearance arose. However, no admission was made. The accused simply made reference to the fact that he had been the subject of police suspicions. Counsel indicated that this conversation was not electronically recorded by surveillance device or otherwise. However, no challenge was made to its content.

87. On 6 December 2012, while driving to Newcastle, one of the UCOs made a comment about hiding bodies under highway constructions. This prompted the accused to make comments about the number of mineshafts in the area around Bathurst and Sofala and to refer to the police suspicion that he had “dropped [Old Bud] down a mineshaft”. Again, no admissions were made on this occasion. The conversation was concerned with the police suspicions and the accused’s response to those suspicions. He questioned why he would do such a thing when it would be easier “to dig a hole and bury him”. However, the conversation showed that the accused was becoming more comfortable in talking about the subject.

88. Counsel agreed that there was no conversation between 9 October 2012 and 6 December 2012 on the subject matter. Similarly, counsel agreed that there was no relevant conversation between 6 December 2012 and 9 January 2013.

9 January 2013

89. By 9 January 2013, [REDACTED]. It was in that context that the accused made the first of the admissions upon which the prosecution relies.

90. UCO 1 (P1) was complimenting the accused (V1) for “staying calm” and the accused said “I’m usually good with that shit, bro. Fuckin’ cunts always go missing around my area”. The conversation continued (Ex VD 1, Tab 267, pp 30-32)

“P.1   Yeah, so fuckin' he just wanted to make sure, man, you know what I mean?

V.1   Yeah. Yeah.

P.1   I said, No, he's sweet. But that's good.

V.1   Yeah.

P.1   So man, from me, like, I fuckin' respect the fact that you fuckin' stayed calm and you're fuckin’ all good with that, you know what I mean?

V.1   Yeah. I'm usually good with that shit, bro.

P.1   Yeah.

V.1   Fuckin’ cunts always go missin' around my area.

P.1   Yeah.

V.1   Yeah. That's…locked up for, bro, not fuckin' for that but they tapped my phone thinkin' about, that I knocked this cunt, made him disappear but they got me for drugs instead….

P.1   Yeah. Yeah. Yeah.

V.1    But….supposed to be urn, about me missus and shit, too, so, gave him a touch up, put him in hospital for a couple of weeks —

P.1    Yeah.

V.1   — and then a couple of weeks after   got out of hospital he sort of went

missin'. I never….seen him….one day they'll find, one day they'll find

him but I doubt it.

P.1    You doubt it.

V.1   I doubt it. He went on holiday.

P.1   Gone on a holiday for good.

V.1   Yeah. Vacation.

P.1   What happened then?

V.1   No, he's just a fuckin' little gronk, bro, fuckin' tried to get me charged and shit, me missus took the wrap for me, bro, fuckin' that's when I bashed him and shit I fucked him up.

P.1   Yeah. Yeah.

V.1   Broke both his eye sockets, his jaw, his nose, his arm, all his ribs, his

ankle.

P.1   Fuck.

V.1   I fucked him up, bro. No cunt touches me missus, bro, you know what I mean? I fucked him up, bro. He spat on her too, bro, that's what made it worse, you know what I mean?

P.1   Ooh.

V.1   ……angry. And fuckin’ shit happened, he tried to get me charged and shit, worse thing…an AVO but he still got me missus charged, bro.

P.1   Fuckin’ dog cunt.  

V.1   Yeah the coppers on me, bro, after I fuckin'….fucking managed it but,

you know….coppers, this copper showed up, bro, I'm standin' there I'm covered in blood….what are you doin'? No, nothin’, I've just dealt with him.

P.1   That's it.

V.1   What's goin' on? We've had a complaint. Yeah, better help him. What happened to him? I don't know. Only just got home. Get in your car and go. Look, I haven't got a licence. I don't give a fuck, just go. They're like, Who did it? My missus is like, Yeah, I did it. Sweet cunt.

P.1   What a staunch chick, man. Good on her.

V.1   Yeah. Yeah. Fuckin' I got busted, I fuckin' put a hole in me…how come your hand's bleedin'? Fuckin'…up the road with this other lad, that's all right, it's all sorted, you know.

P.1   Yeah. Yeah.

V.1   Fuckin'   ….fuckin'…..bro, I fuckin' seen him walkin' along the road there

one night, bro, I fuckin" gave him a ride.

P.1   Hold on a sec.

P.3   How you goin'?”

91. It will be seen that the accused went from speaking about what the police suspected to making admissions as to what he actually did. The conversation was interrupted by the arrival of UCO 9 but as soon as she left, UCO 1 asked about “what were you sayin’ bro, before?” The whole content of what was said is recorded over around thirty pages of transcript. It included:

1. Reference to his animosity to the victim who was “walking around town like he’s fuckin’ Mr It”.

2. Reference to the earlier assault and to the fact that the accused’s girlfriend took responsibility for that assault.

3. “We took him and pushed him off a cliff”.

4. “We had to go down and carry the cunt back up, bro, because it was fucken steep …. Hey yeah, dropped him down a mineshaft.”

5. An assertion that they used a stolen car to drive to the cliff and dump the body and later burnt it out .

6. Statements that his mate (referred to as Kieran) was “staunch” and “hasn’t said nothin’ yet”.

7. An admission that they used Kieran’s car to “grab the cunt” with a plan to “bash the cunt”.

8. The suggestion that the victim “started crying” and was taken to Kieran’s mum’s house.

9. Reference to the victim by name (Andrew Russell).

92. UCO 1 asked if the killing was planned and the accused said that it was not and continued (pp 70-72)

“V.1   Just sort of got real …one night… got on… from Sydney to Bathurst,

goin' across the bridge, bro, I seen the cunt walkin' across the bridge, pull up…bro, Keiran… fuckin'… rah rah rah….  

P.1    ………..     

V.1   Like, you already bashed him once, what do you want to it again for?

P.1   Yeah.

V.1   …fuckin' gone….Keiran, we'll just grab this cunt, hey. Yeah, all right, all…right….fuckin'….grabbed him….   no cunt around, nothin'…fuckin' - - -

P.1   On the bridge, where at, Bathurst there?

V.1   Yeah. Yeah.

P.1   What, as you're comin' into Bathurst.

V.1   Yeah. Yeah. The big white bridge…  

P.1   Yeah. Yeah. And then what happened?

V.1   Got….me mate, Keiran's mum's house, bro…all the drugs…  

P.1   Yeah.

V.1   Fuckin' work out what we're gunna do with him, then got a hottie…car

…come back, burnt another car out, you know.

P.1   Where did you fuckin' have the cunt while you were at…drugs?

V.1   No, I was…Keiran…  

P.1   Oh, he just waited, did he?

V.1   Keiran's mum, bro….  

P.1   She fuckin’ saw him?

V.1   Who's that cryin' out in the car, get rid of 'em….man, you know what I

mean, fuckin'.

P.1   And fuckin’, what, you just fuckin', how long was the drive that you had to fuckin’ take the cunt on?

V.1   40 minutes  

P.1   Yeah…bashin’ and shit?

V.1   No…bro, and then you go through a bit of a fuckin' small…track, that's

all right, we put a Commodore there, bro, so —

P.1   It's not that bad, hey?

V.1   No…

P.1   Fuckin'   …and then what, you reckon the cunt fuckin' thought you guys

were serious or what?

V.1   I don't know…I don't think he really did, bro.

P.1   ….

V.1   ….you could see his mind tickin' over...jump off that cliff….you're

gunna jump or we're gunna push you off.

P.1   Yeah.

V.1   Oh, you're…..push me then…see you…  

P.1   Fuckin’ oath  

V.1   …fuckin'….  

P.1   Yeah. Yeah.

V.1   ….fuckin'….don't think about shit like that, you know what I mean, like,

fuckin'…done now…..can't change it. They haven't got nothin' on me

yet for it, bro, for 3 year ago, they ain't…..shit on me now.

P.1   No, I doubt it.

V.1   ….cunt   …

P.1   Exactly. So what was Keiran doin' when the cunt was goin', Oh, you're

gunna have to push me and shit.

V.1   He was….when I went to push him…Keiran was already goin' to push

him, too, you know what I mean?

P.1   Yeah.

V.1   ….worked out well, bro, and then when we were carrying up ….you

could see Keiran, like, when we were carryin’ him back up he really started to think about it, you know what I mean?

P.1   Yeah.

V.1   Don't worry about it, bro. Don't worry about it. Who's gunna..

P.1   So who pushed him in the end?

V.1   Both of us…and you could see him, bro, just…just kick back, relax, man…..I pushed….don't worry, we'll be right, if we go down we go down together.

P.1   That's it, man. It's good that you boys fuckin' stayed staunch with each

other, mother.”

15 January 2013

93. On 15 January 2013, the accused was with UCO 1 in the Sofala area and showed him where he claimed to have dumped Mr Russell’s body in a mineshaft. He repeated many of the admissions that he had made on 9 January 2013 and expanded upon them. He said that he looked for a wallet on the deceased, explaining “already done the damage, might as well rob the cunt too”. He said that it was pitch black on the night. He said that they had dropped the deceased’s shoes, went back and got them and then threw them down the mineshaft as well.

94. Importantly, from the point of view of the accused’s submissions that the admissions are not reliable, he said that these things occurred on 22 June 2009. The Crown case is that it occurred on 2 June 2009.

95. The accused again said that his mate (Kieran) was “solid” but had a drug habit. He said that the police had questioned him two years earlier but that he and Kieran had covered their tracks by burning their clothes and shoes as well as torching the car that was used.

16 January 2013

96. On 16 January 2013 the accused met UCO 10 in a hotel room in Sydney. [REDACTED].

97. The accused proceeded to supply UCO 10 with a lengthy account of his relationship with “Andrew” including the earlier assault and the fact that his girlfriend took responsibility for the assault which had left the victim with significant injuries. Once “Andrew” got out of hospital “he was walking around like this, high and mighty shit”. He said that what occurred was not planned and he repeated, confirmed and expanded upon many parts of the admissions that he had made on 9 and 15 January 2013. The admissions included:

• Reference to the deceased as “Andrew”.

• Reference to it being “the same fellow I bashed and put in hospital”.

• The fact that the incident took place in June of 2009.

• Reference to his “co-ey” being Kieran Moore.

• “We were coming back from Sydney … and we seen him. I said to me mate, I said, Oh, blow … this cunt and we’re on the bridge …. And I told him to pull over. And he stopped. I said, Oh,l somthin’ come up I said I was talking to him, I was sayin’, Oh come for a drive, and I’m sayin’ to me mate, We should just grab him, eh? He goes, Yeah all right. And I think my mate thought I was just jokin’ to start with too, but anyway, so I ended up grabbing him, draggin’ him and putting’ him in the car.”

• It happened at about 2 o’clock in the morning. He later said it was at about 1 o’clock.

• “I said to my mate, let’s just get rid of him, you know what I mean”.

• They went to Kieran’s mum’s place and then “switched him into the other car and took him out to the, out to Sofala”.

• He said they took him to the cliff and told him to jump or be pushed and “we both sort of pushed him off, you know what I mean.”

• He thought somebody might find him and that “we can’t leave him there. Someone will find him and we’re fucked.”

• They recovered the body which took “like 2 hours to get down there”.

• He said “I know where a couple of big holes are, mine shafts. There’s heaps of mine shafts out there, [Sofala] is an old gold, gold mining town.”

• He described the area as Wattle Flat on the Red Hill Road.

• He said they put the deceased in one of those mine shafts. He said they lost his shoes and then went back and found them and put them in the hole with the deceased.

• He said they burnt their clothes and shoes – “we got rid of everything”.

• He said “nothing happened for a while” but then it was on the news describing that Andrew Russell had been reported missing.

• In answer to direct questions he said “he was dead” and he was “fucked” although he had not checked for a pulse.

• He said he probably picked him up at 1 o’clock in the morning and it was not finished until 5:30.

• He claimed that he set the car on fire.

• He said that he tried to steal from the corpse but “he didn’t have nothing. He was a bum. Not even a watch”.

• He said it was “freezing” in Bathurst in June.

• He said it was dark but claimed he had “pretty good eyesight in the dark” and that his eyes adjusted.

• He said he was 110% sure of the location although he had not been out there since. He knew the area as a kid.

• He claimed that the car that was used was stolen from Esram Street and identified it as a “brown VT” [Holden] and that he burnt it using petrol that happened to be in the back seat.

• He claimed to have thrown his own clothes into the fire and walked back to his mother’s house, cutting across a field. He said it was cold but that he had “adrenalin goin’ through my body.”

• He said he was spoken to by the police who had shown an interest in his “little white Excel” motor car. He had provided the police with an alibi of sorts, saying that he was with his mistress.

• He provided a history of his relationship with Kieran, saying that they started school together and were pretty close.

• He said there was no plan to pick him up and that it “started off as a game”.

• He spoke of rumours that had gone around town.

• He described the reason for the animosity prior to the first assault as being the fact that the deceased had Hep C and had spat on the accused’s girlfriend

98. At the conclusion of the account, UCO 10 asked if any parts of the story might not have been correct and the accused said “the story’s 100%”.

Reliability of the admissions

99. Senior Counsel for the accused pointed to a number of aspects of these accounts that he says are either fanciful or unable to be reconciled with the known facts. The Crown Prosecutor (in argument) and the officer in charge of the investigation (in cross-examination) acknowledged that there are some difficulties surrounding the versions of events provided by the accused. Sgt Fawkner was not prepared to say that the version is anything more likely than “possible” while the Crown Prosecutor says that the reliability of the admissions is a question for the jury and that the jury would be entitled to act on parts of what the accused said while rejecting other parts.

100. Matters referred to by Mr Young SC as impacting on the reliability of the admissions include:

1. On 15 January 2013 the accused said that he committed the crime on 22 June 2009. The prosecution case is that the deceased went missing on 2 June 2009 and was last seen (at least by a reliable source) on that date. There is some evidence to suggest that he was seen after that date. The prosecution presents an indictment with a spread of dates from the 2 to 20 June 2009. The accused’s admissions as to committing the crime on 22 June 2009 fall outside of those dates and his nomination of 22 June 2009 is inconsistent with apparently reliable evidence of when the alleged victim went missing.

2. While the accused said he was “110%” certain that he took the police to the location where he disposed of the body in a mineshaft, a thorough search of the area provided no evidence that there was a mineshaft - let alone human remains - in the area. This is in stark contrast with the circumstances that prevailed in cases like Cowan and Abrahams [2013] NSWSC 952 where the reliability of the admissions obtained by similar means was enhanced by the fact that human remains were discovered at a location nominated by the accused to the undercover investigators.

3. It is difficult to understand, on what is known of the geography and topography of the area, precisely how the accused got to the top of Wallaby Rocks, particularly at night. The police investigation in this regard is rather deficient. The Officer in Charge has never returned to the area to investigate the logistics of what the accused described. The descriptions given in evidence on the voir dire are difficult to understand.

4. Some of the details of the precise content of the admissions made on the 15th and 16th of January 2013 strain credulity. The account of recovering the body, possibly from a water hole and then burying it, in the middle of the night and in the time frame allowed is hard to fathom or accept.

5. Similarly, the image of the two accused retreating to their homes dressed in nothing but their underwear in the dead of winter is more comical than it is convincing.

6. There is no evidence supporting the assertion that the accused stole a car and that he later torched it. On the contrary, there are no relevant reports of a stolen vehicle at the time. Detective Fawkner’s explanation of this (that sometimes people don’t report the theft and burning out of their own cars) was unconvincing. His evidence that the car nominated by the accused was a green VT Commodore and that this matched the description of a car owned by the co-accused made little sense for two reasons. First, the colour of the car nominated was brown, not green. Secondly, there is uncontested evidence that the co-accused disposed of his car some weeks or months later. I consider that the absence of any report of a stolen car at the relevant time and place is unexplained. Of course, it is possible that somebody would not report a stolen vehicle or that the report was not found.

101. Senior Counsel also pointed to the accused’s drug use as bearing upon reliability. He relied on the contents of Ex VD 4 and the evidence of Jodi Biles given at the committal hearing (Ex VD 6). It is submitted that the accused’s need for money to buy drugs made him more likely to “confabulate” and to provide a false account to the members of the group in order to obtain money for drugs.

102. The Crown will present a different case to the jury in relation to the co-accused, Kieran Moore. If the accused’s account is accepted, Kieran Moore is guilty as a principal in the second degree or on the basis of joint criminal enterprise. On Mr Simmons’ admissions, Moore was present and played a role in either inviting the deceased to jump from a cliff or assisted in pushing him. He was actively involved in abducting the deceased and in taking him to the cliff. If the admissions made by Mr Simmons on 15 and 16 January were true, there is no basis upon which Mr Moore is not guilty of murder. Of course the legal explanation for the Crown’s different position may simply be that admissions made by Mr Simmons are not admissible against Mr Moore.

103. Finally, the details of admissions made to other people are not consistent with the version provided in the course of the covert investigation.

104. The Crown did not submit that I should disregard the evidence that suggests that the admissions may be unreliable or that I should focus entirely on the “circumstances in which the admissions were made”. Rather, the Crown’s submission was that the reliability of the confessions was not a matter to be considered under s 90 at all. On the other hand, the Crown submitted that reliability was a matter to be considered under s 137. I have already referred in some detail to the authorities on the question of when, and in what circumstances, it is appropriate to consider the reliability of evidence in exercising the discretions created by ss 90 and 137.

101. As I understand it, the real thrust of the Crown’s submission is two-fold. First, it was submitted that the reliability of the admissions is a question for the jury to determine. Secondly, there are matters that point to the reliability of some parts of the statements made by the accused to the undercover police officers. In particular:

1. The accused’s account of the location where he picked up the victim (the bridge on the Sydney Road outside Bathurst) fits with a statement provided by a witness (Michael O’Neill). Mr O’Neill noticed a man in that area in the middle of the Highway on the night of 2 June 2009 near the intersection with Littlebourne Street, Kelso. He thought it was dangerous and stopped and spoke to the man. He was later shown a photograph of Andrew Russell and was sure that it was the same person. Detective Maclean gave evidence (T 265-266) that suggests that the intersection referred to by Mr O’Neill is 1 km from the bridge described by the accused.

2. The accused referred to his co-accused and the missing man by name.

3. The accused nominated the month and year that Mr Russell went missing.

4. The accused’s description of the police investigation and what he told the police accorded in certain respects to what actually happened in the weeks and months following Mr Russell’s disappearance.

5. The accused accurately told the UCOs the nature of the dispute with Mr Russell, details of the earlier assault and the fact that his girlfriend took primary responsibility for that assault.

6. There are also a number of witnesses who will assert that the accused made statements to them that are consistent with him having some role in the disappearance and murder of Mr Russell. While these are not consistent with the method of killing described by the accused, they may support the Crown case that the accused is responsible for the disappearance and death of Mr Russell.

Unlawfulness – the warrants

106. The senior police who were running this operation were plainly conscious of the need to obtain warrants pursuant to Part 3 of the Surveillance Devices Act2007 (NSW). A failure to do so would result in the commission of a crime. Section 7 of the Surveillance Devices Act provides:

“7. Prohibition on installation, use and maintenance of listening devices

(1) A person must not knowingly install, use or cause to be used or maintain a listening device:

(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or

(b) to record a private conversation to which the person is a party.

Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).”

107. Volume 5 of the brief of evidence (Ex VD 1, Tab 154) contains a number of warrants issued by judges of this Court pursuant to ss 16-19 of the Act. These included a warrant (SD 12/0663) authorising the use of listening devices “on or about the person” of UCO 1 and UCO 3. It also included a warrant (SD 12/0829) authorising the installation and use of a listening device “on or in” the motor car used by UCO 1 on 9 and 15 January 2013.

108. However, the warrant relating to the motor car did not authorise the recording of conversations that took place away from the car unless that conversation was picked up by the device installed on or in the car. Further, the warrant relating to devices worn by UCO 1 and UCO 3 expired on 7 January 2013.

109. This means that listening devices worn by UCO 1 and UCO 3 on 9 and 15 January 2013 were not authorised by warrant. From his statements (Ex VD 1, Tabs 263 and 268) it appears that UCO 1 recorded conversations by listening devices on each of those days. Accordingly, it seems that offences carrying a maximum penalty of 5 years imprisonment were committed on each of those days.

110. It does not appear to be disputed that most, if not all, of the conversation on 15 January 2013 was recorded on two devices; one worn by UCO 1 and one installed in the car. The latter recording is lawful; the former is not. I was informed (and accept) that the major transcript before me (Ex VD 1, Tab 272, 278 pages) was lawfully recorded using the device installed in the car. A second transcript behind Tab 272 (51 pages) was recorded unlawfully on the device worn by UCO 1. As I understand it, the Crown does not (or need not) press for the admissibility of the recording made by UCO 1.

111. The situation is more complicated in relation to the conversation recorded on 9 January 2013. The transcript before me (Ex VD 1, Tab 267, 91 pages) was recorded by the device worn by UCO 1. This evidence was obtained unlawfully. I am told (and I accept) that there is a second recording made by the in-car device. However a significant, although not lengthy, portion of the transcript (T pp 55-76) occurred away from the car. That portion of the recording was obtained unlawfully. It includes reference to the torching of the car and the location and circumstances in which the victim was picked up.

112. In terms of the application of s 138 of the Evidence Act, the only evidence caught by the section is evidence that was “obtained improperly or in contravention [of the law]”. This means that the direct application of s 138 applies to that part of the conversation recorded on 9 January 2013 outside of the car. The balance of the evidence (recorded under the warrant pertaining to the device in the car) was not obtained unlawfully even though UCO 1 may have been committing an offence under s 7 of the Surveillance Devices Act at the time. (I say “may” because he could have an arguable defence of honest and reasonable mistake. I accept that he believed that the warrant was valid and remained in force. Whether that provides him with a defence is a difficult question: see Ostrowski v Palmer [2004] HCA 30; 218 CLR 493).

Feeding the accused’s drug habit

113. The evidence in Ex VD 4 is unsatisfactory. It provides minute snippets or summaries of conversations upon which the accused mounts a submission that at the relevant time he had a significant drug habit. The material appears to have been produced in response to a subpoena issued on the scheduled third day of the trial. Why the material had not been sought earlier and why it is not in any adequate form is not a matter with which I need concern myself.

114. The committal evidence of Jodi Biles (Ex VD 6) however provides solid grounds for the submission that the accused was using ice (methylamphetamine) around the time that he made the impugned admission.

115. It is common ground that that the accused was receiving money from the UCOs as payment for his time and efforts during the period of the operation. The following payments were made:

• 25 September    $100

• 3 October 2012    $100

• 9 October 2012    $200

• 15 October 2012    $200

• 17 October 2012    $300

• 22 October 2012    $50

• 1 November 2012    $300

• 8 November 2012    $80 and $200

• 15 November 2012    $400

• 20 November 2012    $350; $360 (for clothing)

• 28 November 2012    $50

• 29 November 2012    $2000

• 4 December 2012    $300

• 6 December 2012    $300

• 12 December 2012    $200

• 13 December 2012    $110

• 18 December 2012    $400

• 24 December 2012    $1000

• 3 January 2013    $400

• 8 January 2013    $50

• 9 January 2013    $400; $20 [REDACTED]

116. Ex VD 7 (part of the log of intercepted calls) shows that on 29 November the accused called Jodi and told her he had received $2,000 and asked her to organise 1 gram for him. He also called his mother and said he would put $400-$500 into her bank account.

117. Each of the UCOs denied in cross-examination that they observed any conduct on the part of the accused consistent with drug abuse or addiction. Nothing in the transcripts of the conversations with the UCOs suggests that the accused was unable to function or was withdrawing from drugs and I have not been asked to listen to any of the conversation with an eye to that issue. Mr Young SC acknowledges that he cannot rely on a submission that the accused was under the influence of drugs at the time of the conversations.

118. I accept that the contents of Ex VD 4 and VD 7 read as a whole, and the evidence given by Ms Biles at the committal, support a finding that the accused was using drugs frequently throughout the period of the covert operation. I find that it is more likely than not that he used at least some of the money provided by the police to buy the drugs he was using. Whether the UCOs knew of his drug use is difficult to determine but given that his telephone was being intercepted at the relevant time, I am prepared to accept that they ought to have known and been alive to the risk that the money they were providing him may have been used to purchase drugs.

Crimes committed in the course of the operation

119. The Crown contends that no crime was actually committed in the course of the operation. Rather, all of the crimes were staged. Senior Counsel for the accused concedes that no actual crimes were committed.

120. I have some doubts about the correctness of that concession. For example, it seems to me that the accused may have committed a number of inchoate crimes although interesting issues of impossibility may arise: see, for instance, R v Barbouttis (1995) 37 NSWLR 256; R v McCoy [2001] NSWCCA 255. Further, it is difficult to see how the accused did not commit offences under the Drug Misuse and Trafficking Act 1985 (NSW) [REDACTED].

121. However, in view of the stance taken by the accused and the fact that Senior Counsel has made no submission that the accused was incited to commit any actual criminal offences, it is unnecessary to consider this matter further.

122. I would only observe that where police are proposing to sail this close to the wind, consideration might be given to having the operation sanctioned pursuant to the provisions of the Law Enforcement (Controlled Operations) Act 1997 (NSW). I express no final view as to the matter and note that it is an observation contrary to the stated position of the very experienced Crown Prosecutor who appears in the trial.

Application of section 90

123. The question at the heart of the accused’s application under s 90 is whether it would be unfair to use the evidence having regard to the circumstances in which the admissions were made: s 90(b) Evidence Act. I have set out those circumstances in some detail and will not repeat them.

124. Mr Young SC contends that the critical issue is whether the police “elicited” the admissions. He relied on the judgment in Pavitt v The Queen and the matters set out by McColl JA and Latham J at [70]. I have set these out above. As I have said, I am not completely convinced of the legal analogy between a case where an alleged victim approaches the suspect and one where police officers perpetrate a ruse in order to obtain a confession by trickery and subterfuge. In the former case, a live question is whether the complainant has become, or is acting as, an agent of the state. In a case such as the present, there is no doubt that the UCOs were acting as agents of the state.

125. On one level, an operation of this kind is calculated and designed quite specifically to “elicit” a confession. However, the form that the elicitation might take will vary from one case to the next. As the Crown pointed out, this is not a case involving one confession but a number. The form that the elicitation takes is different in each instance and must be considered separately.

126. I have listened to the recording of the conversation on 6 December 2012 (Ex VD 5) when the accused referred to the mineshafts in his area that might be used to “drop anything down”. He made no admission but his statement forms a significant part of the narrative. I have no doubt that the UCO brought up the topic of hiding bodies under the highway construction work for the particular purpose of prompting the accused to say something unguarded about where he might have disposed of the body of Mr Russell. However, to do so does not make it unfair to use what Mr Simmons said in response. He was free to speak or to remain silent. The statements he made were not elicited in the relevant sense.

127. The conversation on 9 January 2013 (Ex VD 1, Tab 267) arose in the light of [REDACTED]. Again, the introduction of that scenario was plainly designed to prompt the accused to say something about the disappearance of Mr Russell. But the statements he made on that day were not unfairly elicited or prompted by anything that the UCO said to him. Further, the transition from comments about what the police believed to the actual assertion that he gave Mr Russell a “permanent vacation” was done freely and with very little input from the UCO. He was not encouraged to say anything. My reading of the transcript is that the UCO was surprised that the accused started talking when he did. The moment was unscripted and unplanned. This is confirmed by the fact that the conversation was then interrupted by the arrival of UCO 9. It is true that UCO 1 immediately, and not very subtly, returned to the topic once UCO 9 left, but he did so in non-leading way (“what were you sayin’ bro, before”?). These admissions were not elicited in an unfair or improper way.

128. I am of the same opinion of the conversation on 15 January 2013. The accused was put in a location that was likely to prompt him to say something but nothing in the conduct of the officers importuned him to say anything.

129. I have more difficulty in relation to the conversation on 16 January 2013 with UCO 10. That conversation, to adopt the terms of Pavitt v The Queen, was the “the functional equivalent of an interrogation”. However, at no stage in this conversation, or any earlier conversation, did the police officers importune the accused to tell a particular story or to change his account. This was not a case where the accused denied involvement but was encouraged to “tell the truth” in circumstances where that implied changing his version of events. No special characteristics of the accused were used against him and he was free to speak or to be silent. Again, to adopt the words of Pavitt at [70] and Swaffield v the Queen at [86], the accused chose to run the risk that UCO 10 might report the conversation to police. While the conversation on 16 January 2013 was elicited in one relevant sense (that is, it was the functional equivalent of an interrogation), neither that determination nor the check-list in Pavitt, can be permitted to supplant the terms of s 90. The true question remains whether it would be unfair to use the evidence given in those circumstances.

130. One of the criteria referred to by McColl JA and Latham J was whether the accused had previously exercised his right to silence when spoken to by the police. An attempt was made to sidestep this issue by indicating that while the accused had made a statement, he had not made any admissions. In my view, that is a different thing. Senior Counsel could point to no occasion when the accused had told police that he did not want to speak to them. On 24 July 2009, the accused signed a statement (Ex VD 1, vol 3, Tab 142) in which he provided a reasonably detailed account of his relationship with Mr Russell, the reasons for the earlier fight, the “fact” that he had only struck him once and when he returned Mr Russell had suffered further injury. He said that he had last seen Mr Russell on 25 May 2009 at Court. He said that he could “not really say” where he was on and around 2 June 2009 but observed that it was just before his birthday. On 16 March 2012, Detective Maclean spoke to the accused at the Wellington Gaol. He answered questions about another matter and “indicated that he would be prepared to be interviewed again about the disappearance of Andrew Russell upon his release from custody” (Ex VD 1, Tab 109). He said he was reluctant to speak about the matter while he was in custody. That statement was not challenged on the voir dire. There is no evidence that the accused ever asserted his right to silence at any time prior to his arrest at the conclusion of the police operation.

131. The final matter is the reliability of the admissions. Contrary to the Crown submissions, I am of the view that if the evidence clearly establishes that the police provoked or elicited a false confession, the circumstances may be such that it is unfair to use the material in the trial. I have considered carefully the matters raised by Mr Young SC concerning the reliability of the admissions. I have concluded that, while some parts of the admissions may well be unreliable, a properly instructed jury might discriminate and accept parts of the admissions made by the accused. It seems to me to be a case where the reliability of the confessions is ultimately a question for the tribunal of fact rather than a matter that compels the exclusion of the evidence on the grounds that the evidence establishes that the police elicited a false confession.

132. I have also considered, under s 90, the persistence and deception of the police in pursuing this course and the fact that the accused received payments, part of which may have been used to fund a drug habit.

133. In the final analysis, the onus is on the accused and I am unable to conclude that the circumstances in which the admissions were made make it unfair for the admissions to be used against the accused at his trial.

Section 138

134. I have detailed above the various matters that might give rise to the discretion to exclude evidence that is obtained improperly or in contravention of the law. At least part of the recorded conversation on 9 January 2015 was obtained unlawfully because it was not the subject of any valid warrant. I also consider the failure of the police to consider whether the accused may have been funding his drug habit with the money they were giving him to be conduct properly categorised as improper.

135. Finally, I take into account the fact that the accused was incited to participate in activities that were represented as criminal and, in some cases, that he may have actually committed inchoate offences. However, the accused has not taken that latter point and, whatever be the true legal position, it is undoubtedly true that the police were careful in trying to ensure that no crime was completed. The case is far removed from the circumstances that prevailed in cases such as Dowe v R [2009] NSWCCA 23 and Gedeon v R [2013] NSWCCA 257.

136. Once it is accepted that there was some illegality or impropriety, the onus shifts to the prosecution to establish that “the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was obtained in the way in which the evidence was obtained.” Guiding that inquiry is the non-exhaustive list of factors referred to in sub-s (2) and (3) of s 138.

137. The evidence, if accepted, has substantial probative value: s 138(3)(a). In view of the weaknesses in other parts of the Crown case, the evidence is important: s 138(3)(b). The serious nature of the offence militates in favour of its admission: s 138(3)(c) and see R v Dalley [2002] NSWCCA 284 per Spigelman CJ at [5]-[7] with whom Blanch J agreed, contra Simpson J at [97]; R v MM [2004] NSWCCA 364 at [54].

138. Contrary to the submission of the Crown, I find that the impropriety is quite grave: s 138(3)(d). The rights to silence and to privacy are important parts of a functioning democracy and free and civilised society. Where safeguards such as the Surveillance Devices Act are enacted, law enforcement officers must be fastidious in ensuring that they are complied with. The failure of the officers to consider whether the money they were providing was being used to purchase drugs was a significant and grave oversight.

139. As to whether the contravention was reckless or intentional, I am firmly of the view that the failure to seek an extension of the warrant or to obtain a fresh warrant was an oversight. This is better described as negligent rather than reckless. The history of applications to the Court shows that the operation was generally covered by valid warrant. I accept the evidence given by UCO 1 that he would not have used the device had he known that the warrant was not valid or had expired.

134. On the other hand, the failure of the officers to consider the accused’s drug use and the possibility that the money that they were giving him was being spent on drugs was a reckless impropriety. At the same time as the operation was taking place in Sydney, police were intercepting the accused’s telephone calls. Communication between the officers would, or ought to have, disclosed the risk that the undercover police were unwittingly feeding the accused’s use of illegal drugs.

135. Neither counsel made any submission as to the terms of the International Covenant or the remaining matters to be considered under s 138.

136. Taking all of those matters into account, I have concluded that the Crown has established that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence in view of the way it was obtained. I am particularly persuaded by the importance of the evidence, its probative value and the fact that this is an unsolved homicide case.

Prejudicial material and s 137

143. The material tendered on the voir dire contains a vast amount of material which, if admitted before a jury, would give rise to enormous prejudice to the accused’s right and capacity to receive a fair trial. That material comes in a variety of forms. First, there is the participation by the accused in the various scenarios played out in the course of the covert police operation. Secondly, in the course of the conversations with the undercover officers, the accused made many admissions (or boasts) about his past involvement in a variety of criminal offences. Third, the tenor of much of the conversation is offensive and suggestive of a person of bad character.

144. I note that the accused have indicated (“formally” yesterday) that they intend to seek leave under s 132A Criminal Procedure Act to make an application for Judge alone trial under s 132. The Crown is yet to indicate its position on the application and the question of leave is a live one. The application is yet to be dealt with and it is appropriate to deal with the s 137 submission on the basis that the trial will be by jury.

145. As my summary of the scenario evidence shows, the police enticed the accused into the commission of a wide variety of pretend criminal offences. His willingness to involve himself in these crimes does him no credit and is likely to cause a jury to consider him to be a person of bad character with a propensity towards the commission of a vast array of offences. Without being exhaustive, the malfeasance and criminal behaviour in which the accused was prepared to participate included:–

• [REDACTED].

• [REDACTED].

• [REDACTED].

• [REDACTED].

• [REDACTED].

• [REDACTED].

• [REDACTED].

• [REDACTED].

• [REDACTED].

• [REDACTED].

• [REDACTED].

• [REDACTED].

• [REDACTED].

• [REDACTED].

146. At no stage did the accused show any reluctance to engage himself in this or any other criminal activity that the UCOs might suggest. At one stage he said to UCO 10 “I'm always keen, you know what I mean, like. And, yeah, I'll do anything, pretty much”. His actions in the course of the covert operation show this to be an accurate reflection of his attitude towards the criminal law.

147. The second area of prejudicial material arises from his admissions to his involvement in other criminal offences. These included: –

• The possession of firearms.

• Offences of violence, including offences of significant cruelty.

• Drug distribution and trafficking.

• Drug use.

• Successful perversion of the course of justice (having Jodi Biles take responsibility for the earlier assault).

148. The conversations are also riddled with references to the fact that the accused had served time in prison and was currently on parole.

149. On 8 November 2012 he said of himself:

“I was a real criminal like, not a crim just fucken’ I was just a bad cunt”.

150. In addition to references about his criminal past, the conversations also suggest that the accused is a person of bad character with offensive, sexist and racist attitudes. I need not go to specific examples of this but they are plentiful. Any vaguely sensitive person listening to the material is likely to be left with the distinct impression that Mr Simmons was a person of bad character.

151. In his notice of motion seeking exclusion of the evidence, one of the bases of the accused’s objection is that the prejudicial effect of the evidence outweighed its probative value (s 137 Evidence Act). Whatever the probative value of the admissions ultimately obtained, my tentative view was that the overall flavour of the material and the prejudice that flowed from it was incapable of being cured by direction.

152. Senior Counsel for the accused suggested in submissions that the evidence could not be severed. However, on the final day of the voir dire, the Crown Prosecutor indicated that he did not “need” all of the recorded conversations. He indicated that he had discussed the matter with Mr Young SC and that if some or all of the evidence of admissions was ruled to be admissible, counsel would probably be able to reach agreement as to the remaining parts of the conversations that could go before the jury. In doing so, they would take into account the preliminary views I have expressed as to the prejudicial nature of much of that material.

153. I would certainly not have allowed vast amounts of the surveillance device recordings to go before the jury. In my opinion no direction would be capable of curing the prejudice that would be occasioned by the jury hearing these recordings. This approach is consistent with the judgment of McClellan CJ at CL in Donai v R [2011] NSWCCA 173 where he referred to “the collateral prejudice” and concluded at [64]:

“64.   Whether or not the jury believed everything the appellant said to the police to be true the evidence irretrievably prejudiced the appellant when the jury came to assess his denial of any involvement in the killings or disposition of the bodies as against the evidence that he was involved. Weightman's evidence in relation to the appellant made his conviction likely. The picture of the appellant reflected in his conversations with police made his conviction inevitable.”

154. I can indicate my preliminary opinion that most of the evidence of previous criminal activities (admitted [REDACTED]) should not be led. [REDACTED].

155. However, if the admissions (or some of them) are admitted, it will still be necessary for the jury to be aware that that the underlying theme of the covert operation [REDACTED]. In addition to that, the conversations containing the admissions are riddled with comments that suggest that the accused is callous and uncaring. By way of example, the comment about robbing the victim after he was dead and that he was a “bum”. [REDACTED].

156. This means that, in spite of the concession by the Crown to extract large portions of the material, there will remain a real danger of unfair prejudice.

157. Further, if the admissions go before the jury, the accused will need to make difficult forensic choices in relation to what parts of the evidence he requires to ensure that the jury understands his defence. I expect that the defence will be that the things he said to the police were unreliable, untrue and the result of him big noting himself in front of the members of the group. To establish this he will have to cross-examine his way through a minefield of potentially prejudicial material. Again, this creates a danger of unfair prejudice.

158. Of course, against that, the accused is represented by highly experienced and talented Senior Counsel and the jury will receive careful directions on the issue.

159. In undertaking the balancing exercise under s 137 I find myself bound to disregard matters going to the reliability of the admissions: R v Burton (supra). On that basis, the probative value of the evidence is very high. In my judgment the probative value assessed in that way is not outweighed by the danger of unfair prejudice.

Conclusion

160. For those reasons, my ruling is that the relevant parts of the conversation recorded on 6 December 2012 and the admissions made by the accused on 9, 15 and 16 January 2013 are admissible.

161. I direct the parties to liaise with one another in an effort to reach agreement as to the form and content of the remaining parts of the evidence recorded by surveillance device. That direction will apply whether the trial is to be by jury or by Judge sitting alone.

162. The un-redacted version of this judgment is to be available to judicial officers, their staff and legal practitioners as a restricted judgment on the Judicial Information Research System (JIRS) in accordance with the protocols established by the Judicial Commission.

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Amendments

09 June 2015 - Redaction in paragraph [50].

Decision last updated: 09 June 2015