R v Swaffield

[1998] HCA 1

HIGH COURT OF AUSTRALIA

BRENNAN CJ,
TOOHEY, GAUDRON, GUMMOW AND KIRBY JJ

THE QUEEN  APPELLANT

AND

JASON ROY SWAFFIELD  RESPONDENT

R v Swaffield; Pavic v The Queen (B61-1996) [1998] HCA 1
20 January 1998

ORDER

Appeal dismissed.

On appeal from the Court of Appeal of the Supreme Court of Queensland

Representation:

M J Byrne QC with M C Chowdhury for the appellant (instructed by R N Miller QC, Solicitor for Public Prosecutions (Queensland))

A J Glynn SC with A J Rafter for the respondent (instructed by Director, Legal Aid Office (Queensland))

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

R v Swaffield

Criminal law – Evidence – Confessions and admissions – Admissibility of – Discretion to exclude – Covert and surveillance operation squad – Secretly tape recorded statements made by the respondent to undercover police – Such evidence was the primary evidence implicating the respondent – Previous refusal to answer police questions – Statements voluntarily made – Reliability – Unfairness discretion – Public policy discretion – Unduly prejudicial evidence – Right to silence – Eliciting confessions – Judges' Rules – Duty to caution – Seriousness of the offence – Arson.

Evidence – Criminal trial – Exclusion of evidence – Reformulation of tests – Voluntariness test – Unfairness test – Public policy test – Unduly prejudicial test.

HIGH COURT OF AUSTRALIA

BRENNAN CJ,
TOOHEY, GAUDRON, GUMMOW AND KIRBY JJ

STEVEN FRANCIS PAVIC  APPELLANT

AND

THE QUEEN  RESPONDENT

20 January 1998

M13/1997

ORDER

Appeal dismissed.

On appeal from the Court of Appeal of the Supreme Court of Victoria

Representation:

D Grace QC with O P Holdenson for the appellant (instructed by The Office of David Grace QC)

W H Morgan-Payler QC with D M Salek for the respondent (instructed by
P Wood, Solicitor to the Director of Public Prosecutions (Victoria))

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Pavic v The Queen

Criminal law – Evidence – Confessions and admissions – Admissibility of – Discretion to exclude – Secretly tape recorded statements made by the appellant to friend as agent of police – Previous refusal to answer police questions – Statements voluntarily made – Reliability – Unfairness discretion – Public policy discretion – Unduly prejudicial evidence – Right to silence – Eliciting confessions – Duty to caution – Seriousness of the offence – Murder.

Evidence – Criminal trial – Exclusion of evidence – Reformulation of tests – Voluntariness test – Unfairness test – Public policy test – Unduly prejudicial test.

1. BRENNAN CJ.   Should a confessional statement voluntarily made to a witness who, unbeknown to the confessionalist, is a police officer or is acting on behalf of the police, be admitted into evidence on the trial of the confessionalist for the offence to which the statement relates?  And does it matter that the confessionalist has previously refused to answer questions or make a confessional statement when interviewed by the police?  These were the issues raised for consideration by the facts of two cases in which appeals were heard together in this Court.

   Swaffield's case

2. In December 1995, Swaffield was charged before the District Court at Rockhampton on an indictment containing three counts:  breaking, entering and stealing, breaking and entering with intent to commit a crime and arson.  The prosecution alleged that he had stolen cutting equipment from a workshop (count 1) and used the cutting equipment to enter the Leichhardt Rowing Club (count 2) to which he wilfully and unlawfully set fire (count 3).  Two years earlier, he had been charged with the same offences but the police offered no evidence against him at the committal hearing and he was discharged.  Then, in May 1994, Swaffield became one of the targets in a police undercover operation to detect drug suppliers.  Posing as a purchaser of illegal drugs, Constable Jacob Marshall engaged Swaffield in conversation on 11 and 16 August 1994.  During these conversations, Swaffield made admissions about his involvement in the arson of the Leichhardt Rowing Club.  The conversations were recorded by Constable Marshall without Swaffield's knowledge.  Fresh charges were laid against Swaffield.

3. At his trial, Constable Marshall's evidence of Swaffield's recorded admissions was tendered over objection by Swaffield's counsel that those admissions had been obtained unfairly and that the police had demonstrated a disregard of the relevant Judges' Rules.  Nase DCJ disallowed the objection and the admissions went into evidence.  Swaffield was convicted and sentenced on all three counts.  He appealed to the Court of Appeal only against his conviction for arson (count 3).

4. The Court of Appeal allowed his appeal by majority (Fitzgerald P and Helman J, Pincus JA dissenting) holding that the trial judge erred in the exercise of his discretion by failing to give sufficient weight to the respondent's right to silence.  The conviction for arson was quashed and a verdict of acquittal entered.  By special leave the Crown has appealed to this Court against that order.

   Pavic's Case

5. Police were investigating the murder of a man named Andrew John Astbury, whose body was found in the Yarra River handcuffed to an electric motor casing.  The police interviewed Pavic on 3 January 1995 at the homicide squad office at St Kilda Road in Melbourne.  At the beginning of the interview, Pavic was given the usual warning and he was advised that he had a right to communicate with his solicitor.  He contacted a solicitor.  When questioned by the police, acting on his solicitor's advice, he made no comment on the questions put to him.  During the questioning, the police informed Pavic that he was believed to have committed the offence of murder.  Nevertheless, at the end of the interview, Pavic was allowed to leave the office.

6. On 4 January, the police recovered from the Yarra River a garbage bag containing blood-stained towels and clothing.  On 9 January they obtained a statement from Lewis James Clancy in which he identified some of the clothing as clothes which he had left in Pavic's vehicle some time before.  Pavic had told Clancy that he had lost the clothes and insisted that he accept $50 for them.  This satisfied the police that they had sufficient evidence to arrest Pavic and charge him with murder.  After his interview with the police, Clancy agreed to being fitted with a microphone to record a conversation with Pavic.  At Pavic's trial, Clancy gave evidence that he agreed to participate in the police investigation by being fitted with a microphone because he wanted to dispel what he perceived to be the police belief that he was implicated in the murder in some way.  He conveyed that belief to Pavic, as the police contemplated that he would, although the fact was that at that time Clancy was not a suspect.  In the conversation with Pavic which Clancy recorded, Clancy told Pavic that the police had recovered his clothing stained with blood.  In the ensuing conversation, Pavic made a number of inculpatory statements.

7. Pavic, who had pleaded guilty to manslaughter, was convicted of murder.  The Court of Appeal of Victoria dismissed his application for leave to appeal against his conviction.  Special leave was granted to appeal to this Court against that dismissal.

   The common question for determination

8. Both cases involve a consideration of what has been called the fairness discretion.  In neither case was any objection taken on the ground that the confessional statements were made involuntarily or on the ground that the taking of the statements was illegal or so contrary to public policy that they ought to be excluded.

9. These cases thus raise for consideration the purpose and scope of the discretion to exclude for unfairness.  To address that subject, it is necessary to refer to the reasons why confessional evidence may be rejected by a trial judge.

   Involuntary confessions

10. In Sinclair v The King[1], Dixon J said:

    "    Confessions, like other admissions out of Court, are received in evidence as narrative statements made trustworthy by the improbability of a party's falsely stating what tends to expose him to penal or civil liability."

    If no probative force could or ought to be attributed to a confession, the warrant for its admission in evidence would be denied.  For that reason, the courts have been cautious in admitting into evidence confessions obtained in circumstances which throw doubt on their reliability.

    [1] (1946) 73 CLR 316 at 334.

11. At a time when a prisoner was not able to testify in his own defence, the common law developed the rule which excluded confessions which were made involuntarily.  As Dixon J pointed out in Sinclair[2]:

    [2] (1946) 73 CLR 316 at 334-335.

    "The argument is that to be admissible evidence of a confession must be an expression of the independent will of the confessionalist and, moreover, must derive from the circumstances in which it is made that assurance of trustworthiness which the law finds in the improbability of a false admission being made of incriminating facts."

    His Honour quoted the speech of Lord Sumner in Ibrahim v The King[3]:

    [3] [1914] AC 599 at 610-611.

    "[T]he rule which excludes evidence of statements made by a prisoner, when they are induced by hope held out, or fear inspired, by a person in authority, is a rule of policy.  'A confession forced from the mind by the flattery of hope or by the torture of fear comes in so questionable a shape, when it is to be considered as evidence of guilt, that no credit ought to be given to it' (R v Warickshall[4]).  It is not that the law presumes such statements to be untrue, but from the danger of receiving such evidence judges have thought it better to reject it for the due administration of justice:  R  v Baldry[5]."

    [4] (1783) 1 Leach 263 [168 ER 234].

    [5] (1852) 2 Den 430 at 445 [169 ER 568 at 574].

    Although unreliability has remained the raison d'être of this rule of exclusion, the nature and effect of the inducement became the touchstone of its application.  In McDermott v The King[6] Dixon J spelt out the rules by which voluntariness was determined.  These rules were adopted by a unanimous Court in R v Lee[7]:

    [6] (1948) 76 CLR 501 at 511-512.

    [7] (1950) 82 CLR 133 at 144.

    "These rules, stated in abbreviated form, are—(1) that such a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, and (2) that such a statement is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed.  These two "rules" ... seem to be not really two independent and co-ordinate rules.  There seems to be really one rule, the rule that a statement must be voluntary in order to be admissible.  Any one of a variety of elements, including a threat or promise by a person in authority, will suffice to deprive it of a voluntary character.  It is implicit in the statement of the rule, and it is now well settled, that the Crown has the burden of satisfying the trial judge in every case as to the voluntary character of a statement before it becomes admissible."

    Thereafter involuntariness was given a wider scope in this country than in England.  In England, involuntariness was not given the scope which rule (1) in Lee gave the exclusion here.  Dawson J pointed out the difference in Cleland v The Queen[8]:

    [8] (1982) 151 CLR 1 at 27-29.

    "The reason for the rule excluding from evidence confessional statements not shown to have been voluntarily made was, at least in its origins, because such statements were unreliable as evidence.  As was said by Williams J in Reg v Mansfield[9]:

    [9]      (1881) 14 Cox CC 639 at 640.

    'It is not because the law is afraid of having truth elicited that these confessions are excluded, but it is because the law is jealous of not having the truth.'[10]

    [10]    See R v Warickshall (1783) 1 Leach 263 at 263-264 [168 ER 234 at 234-235]. See also R v Scott (1856) 1 Dears & Bell 47 at 58 [169 ER 909 at 913-914] per Lord Campbell CJ; Wigmore on Evidence, 3rd ed (1940), vol III par 822; cf Cowen and Carter, Essays on the Law of Evidence, (1956), ch 2.

    ...

    No such narrow view was taken in this country.  In Cornelius v The King[11], Dixon, Evatt and McTiernan JJ said:

    'But a promise of advantage and a threat of harm are not the only matters which may deprive a statement of its voluntary character.  For instance, a confession which is extracted by violence or force, or some other form of actual coercion is clearly involuntary, and, therefore, cannot be received in evidence.  ...  The position is well stated by Brandeis J in delivering the judgment of the Supreme Court of the United States in Wan v United States[12]: - 'The requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or a threat.  A confession is voluntary in law if, and only if, it was in fact voluntarily made.  A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them.  But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise.'"

    Unreliability and the overbearing of the confessionalist's will are twin justifications of the rule excluding confessions that are not voluntary.  This was recognised by Deane J in Cleland[13]:

    "    The rational basis of the principle that evidence can only be received of a confessional statement if it be shown to be voluntary should be seen as a combination of the potential unreliability of a confessional statement that does not satisfy the requirement of voluntariness and the common law privilege against self-incrimination".

    If confessions made when the will of the confessionalist is overborne are to be excluded because they may be unreliable, the effect of conduct by those in authority upon the will of the confessionalist must be examined to determine whether his will was overborne.  I venture to repeat what I said in Collins v The Queen[14]:

    "    So the admissibility of the confessions as a matter of law (as distinct from discretion, later to be considered) is not determined by reference to the propriety or otherwise of the conduct of the police officers in the case, but by reference to the effect of their conduct in all the circumstances upon the will of the confessionalist.  The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary.  The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made.  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."

    [11] (1936) 55 CLR 235 at 246.

    [12] 266 US 1 at 14-15 (1924).

    [13] (1982) 151 CLR 1 at 18.

    [14] (1980) 31 ALR 257 at 307.

12. The curial concern about unreliability was subsumed by a concern about the nature of the inducement and its effect on the will of the confessionalist.  The latter concern reflected the traditional objection to compulsory interrogation, the origin of which was stated by Windeyer J in Rees v Kratzmann[15]:

    "There is in the common law a traditional objection to compulsory interrogations.  Blackstone explained it:  'For at the common law, nemo tenebatur prodere seipsum: and his fault was not to be wrung out of himself, but rather to be discovered by other means, and other men': Comm iv 296.  The continuing regard for this element in the lawyer's notion of justice may be, as has been suggested, partly a consequence of a persistent memory in the common law of hatred of the Star Chamber and its works.  It is linked with the cherished view of English lawyers that their methods are more just than are the inquisitional procedures of other countries."

    Devlin J is reported to have directed a jury in these terms[16]:

    "So great is our horror at the idea that a man might be questioned, forced to speak and perhaps to condemn himself out of his own mouth ... that we afford to everyone suspected or accused of a crime, at every stage, and to the very end, the right to say:  'Ask me no questions, I shall answer none.  Prove your case.'"

    The common law rule which excluded confessions that were induced by a threat or promise by a person in authority (rule (2) in Lee) was confirmed by statute in Queensland[17].  In Victoria[18], that common law rule was confined by the proviso that a confession induced by a promise or threat should not be rejected unless the inducement was "really calculated to cause an untrue admission of guilt to be made"[19].  Neither of these statutory provisions excluded the wider common law rule adopted in this Court[20].

    [15] (1965) 114 CLR 63 at 80; see also Hammond v The Commonwealth (1982) 152 CLR 188; Sorby v The Commonwealth (1982) 152 CLR 281.

    [16]    R v Adams reported in Heydon, Evidence: Cases and Materials, 3rd ed (1991) at 158.

    [17]    Section 10 of The Criminal Law Amendment Act 1894 (Q); and see McDermott v The King (1948) 76 CLR 501 at 512.

    [18] Now s 149 of the Evidence Act 1958 (Vic); previously s 141 of the Evidence Act 1928 (Vic) and s 19 of the Law of Evidence Consolidation Act 1857 (Vic).

    [19]    See Cornelius v The King (1936) 55 CLR 235 at 238; R v Lee (1950) 82 CLR 133 at 148.

    [20]    Cornelius v The King (1936) 55 CLR 235 at 246; McDermott v The King (1948) 76 CLR 501 at 511-512; R v Lee (1950) 82 CLR 133 at 144.

13. In determining objections to the admissibility of a confession that is said to have been made involuntarily, the court does not attempt to determine the actual reliability of the confession.  Rather, it assesses the nature and effect of any inducement to make the confession in order to determine whether the confession was made because the will of the confessionalist was overborne by the conduct of a person or persons in authority.  That conduct may consist of a threat, promise or inducement made or held out by the person or persons in authority with the additional requirement in Victoria that the threat, promise or inducement be really calculated to cause an untrue admission of guilt.  In all parts of the Commonwealth, there remains a discretion in the trial judge which supplements the exclusion of involuntary confessions[21].  The extent of a trial judge's discretion must next be considered.

    [21]    R v Lee (1950) 82 CLR 133.

    The unfairness discretion

14. A discretionary category of exclusion arose after the rule against admission of involuntary confessions was established and in response to a new set of circumstances.  It came to be known as the discretion to exclude for unfairness.  In McDermott[22] Dixon J explained:

    "The view that a judge presiding at a criminal trial possesses a discretion to exclude evidence of confessional statements is of comparatively recent growth.  To some extent the course of its development is traced by Lord Sumner in Ibrahim's Case[23].  In part perhaps it may be a consequence of a failure to perceive how far the settled rule of the common law goes in excluding statements that are not the outcome of an accused person's free choice to speak.  In part the development may be due to the fact that the judges in 1912 framed or approved of rules for the guidance of the police in their inquiries (see R v Voisin[24]; Archbold on Pleading, Evidence and Practice in Criminal Cases[25]) and not unnaturally have sought to insist on their observance.  In part too it may be due to the existence of the jurisdiction of the Court of Criminal Appeal to quash a conviction if the court is of opinion that on any ground whatsoever there was a miscarriage of justice.  But whatever may be the cause, there has arisen almost in our own time a practice in England of excluding confessional statements made to officers of police if it is considered upon a review of all the circumstances that they have been obtained in an improper manner.  The abuse of the power of arrest by using the detention of an accused person as an occasion for securing from him evidence by admission is treated as an impropriety justifying the exclusion of the evidence.  So is insistence upon questions or an attempt to break down or qualify the effect of an accused person's statement so far as it may be exculpatory."  (Emphasis added.)

    Dixon J appears to have regarded the propriety of the conduct of the police as the critical factor in the exercise of the discretion, in much the same way as the nature and effect of the conduct of persons in authority had come to be regarded as the critical factor in determining whether a confession was voluntary.  His Honour said[26]:

    "It [the discretion] may be regarded as an extension of the common law rule excluding voluntary statements.  In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused."

    Similarly, in Wendo v The Queen[27], Taylor and Owen JJ, speaking of the issues which the trial judge was required to decide on the voir dire, said:

    "Those issues were whether the statements were voluntary or, in the alternative, whether, being voluntary, they had been obtained in the course of the investigation by the use of unfair or improper methods so as to make it right as a matter of discretion to reject them.  The fact that relevant evidence has been unlawfully or irregularly obtained does not, in itself, afford a reason for refusing to admit it in evidence ...  although if it has been so obtained that is a matter to be considered, along with all other relevant circumstances, in determining whether the evidence should be admitted against an accused person in a criminal trial."

    [22] (1948) 76 CLR 501 at 512-513.

    [23] [1914] AC 599 at 611-614.

    [24] [1918] 1 KB 531 at 539.

    [25]    28th ed (1931) at 406.

    [26] (1948) 76 CLR 501 at 513.

    [27] (1963) 109 CLR 559 at 570.

1. Taking this approach, the purpose of the exercise of the fairness discretion would be to constrain the police or other law enforcement officers in their dealings with a suspect, so that the suspect should be fairly treated in the investigation.  If a suspect were unfairly treated by the employment of illegal or improper methods and a confession were thereby obtained, the court would reserve a power to exclude the confession from evidence and thereby deprive the police or law enforcement officers of the fruit of their illegal or improper methods.  If the confession were obtained by unfair treatment, it could be said to be unfair to allow that confession to be used in evidence against the confessionalist.  Focussing on the illegal or improper methods employed to obtain a confession, Dixon J in McDermott[28] questioned whether, if the scope of the rule which excluded involuntary confessions were fully appreciated, there would be much work for the fairness discretion to do.  In Lee[29], the Court acknowledged the recency of the origin of the discretion and agreed[30] that the unfairness which enlivened the discretion "must arise from the circumstances under which [the confession] was made".  But the Court held that it is relevant to consider whether or not the circumstances are calculated to cause an untrue admission to be made[31].  Significantly, the Court denied that evidence of a voluntary confession should be rejected as "some sort [of] sanction for a failure by a police officer to obey the rules of his own organization[32], a matter which is of course entirely for the executive"[33].  If the rejection of evidence is not to be seen as a sanction for a failure by a police officer to obey police regulations, the fairness discretion must have a purpose other than police discipline.  The purpose is, of course, to safeguard a person from the unfairness of using his confession in evidence against him at his trial.  The relevant unfairness is not so much in "the use made by the police of their position in relation to the accused", as Dixon J said in McDermott[34], but in the admission into evidence against an accused of a confession obtained by improper or illegal means.  Ex hypothesi, any such confession has been voluntarily made.

   [28] (1948) 76 CLR 501 at 512.

   [29] (1950) 82 CLR 133 at 148.

   [30] (1950) 82 CLR 133 at 152.

   [31] (1950) 82 CLR 133 at 153.

   [32]    A reference to the Victorian Chief Commissioner's Standing Orders which correspond with the English Judges' Rules of 1912.

   [33]    R v Lee (1950) 82 CLR 133 at 154.

   [34] (1948) 76 CLR 501 at 513.

2. In Cleland[35], Deane J said of a voluntary confession which has been procured by unlawful or improper conduct on the part of law enforcement officers:

   "It will also, if it be established that the confession was voluntary, give rise to a subsequent question whether, in the discretion of the trial judge, evidence of the alleged confessional statement should be excluded for the reason that the reception of such evidence would be unfair to the accused:  in this regard, the question is not whether the accused was treated unfairly; it is whether the reception of evidence of the confession would be unfair to him".

   [35] (1982) 151 CLR 1 at 18.

3. Perceiving the limited scope for the use of the fairness discretion, Dawson J said[36]:

   "when it was said that there was a discretion to reject confessional statements when it would be unfair to admit them, what was meant was that it would be unfair to the accused.  That in turn meant that the admission of the evidence would preclude a fair trial and that could only have been because the evidence was in some way unreliable or untrustworthy.  This accords with the view that the development of the discretion coincided with the establishment in England of a Court of Criminal Appeal with power to quash a conviction on the ground of miscarriage of justice."

   Later in that case, his Honour said[37] that he would confine the operation of the fairness discretion to cases where -

   "it would be unfair to the accused to admit the evidence because of unreliability arising from the means by which, or the circumstances in which, it was procured."

   [36] (1982) 151 CLR 1 at 30.

   [37] (1982) 151 CLR 1 at 36.

4. If attention is directed to the dubious reliability of a confession obtained by illegal or improper means, the exercise of the discretion must be governed by the effect of the illegality or impropriety rather than by the inherent quality of the conduct of the police or other person in a position of authority over the confessionalist.  Want of reliability or dubious reliability was regarded as an important factor in the exercise of the fairness discretion in Van der Meer v The Queen[38] by Wilson, Dawson and Toohey JJ:

   "    In considering whether a confessional statement should be excluded, the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him:  Lee[39]; Cleland[40].  Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement."

   [38] (1988) 62 ALJR 656 at 666; 82 ALR 10 at 26; see also per Deane J at 669; at 32.

   [39] (1950) 82 CLR 133 at 154.

   [40] (1982) 151 CLR 1 at 18.

5. However, in Van der Meer[41], Mason CJ allowed a wider operation to the fairness discretion.  In the circumstances of that case, he observed that:

   "[T]he police conduct of the interrogation was such as to make it unfair to use the later statements made by Ayliffe and those made by Storhannus against them.  Had the police observed the principles governing the interrogation of suspects, it might well have transpired that the statements would not have been made or not have been made in the form in which they were made."  (Emphasis added.)

   His Honour found unfairness not in the admitting of a confession of dubious reliability but in the admitting of a confession that might not have been made or not made in the same form but for the improper conduct of the police.  Later, in Duke v The Queen[42], I expressed the view that the fairness discretion should not be confined to the exclusion of confessions where reliability is doubtful:

   "R v Lee attributes a broader scope to that discretion.  The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted.  If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded.  Trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification - to name but some improprieties - may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or to be silent.  The fact that an impropriety occurred does not by itself carry the consequence that evidence of a voluntary confession procured in the course of the investigation must be excluded.  The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case."

   [41] (1988) 62 ALJR 656 at 662; 82 ALR 10 at 20.

   [42] (1989) 180 CLR 508 at 513.

6. However, if dubious reliability is not the only justification for excluding a voluntary confession on the ground of unfairness, the nature of the unfairness which justifies the exclusion of a confession that is voluntary and apparently reliable should be identified.  Before addressing that matter, reference should be made to the development of the third category of exclusion, a category which came to be known as the Bunning v Cross or public policy discretion.

   The public policy discretion

7. The origin of the public policy discretion is to be found in the judgment of Barwick CJ in R v Ireland[43] with whose judgment McTiernan, Windeyer, Owen and Walsh JJ agreed.  That case related to the admissibility not of confessional evidence but of evidence of a photograph and medical examination of an accused person's hand.  Barwick CJ said[44]:

   "    Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible.  ...  On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured.  Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence.  He must consider its exercise.  In the exercise of it, the competing public requirements must be considered and weighed against each other.  On the one hand there is the public need to bring to conviction those who commit criminal offences.  On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment.  Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price.  Hence the judicial discretion."

   [43] (1970) 126 CLR 321; followed in Merchant v The Queen (1971) 126 CLR 414 at 417-418.

   [44] (1970) 126 CLR 321 at 334-335.

8. This discretion called for a balance to be struck between the competing public requirements to which Barwick CJ referred.  Although "protection of the individual", not "fairness" to the accused, was the public interest to be placed on one side of the balance, it may have been thought that the difference between the two concepts, if any, was extremely fine.  Indeed, in his judgment in Bunning v Cross[45] where the admissibility of evidence of a breathalyzer test was in issue, Barwick CJ reverted to the term "unfairness", saying:

   [45] (1978) 141 CLR 54 at 64.

   "    The question is whether the public interest in the enforcement of the law as to safety in the driving of vehicles on the roads and in obtaining evidence in aid of that enforcement is so outweighed by unfairness to the applicant in the manner in which the evidence came into existence or into the hands of the Crown that, notwithstanding its admissibility and cogency, it should be rejected."

   However, his Honour agreed with the judgment of Stephen and Aickin JJ who attributed to the principle expressed in  Ireland a wider purpose than the avoiding of unfairness to an accused.  Their Honours said[46]:

   [46] (1978) 141 CLR 54 at 74-75.

   "What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law.  This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused.  It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration."

   Their Honours exemplified the principle in Ireland by citation from earlier Irish and Scottish authorities[47]:

   "    Several passages from earlier cases exemplify the principle which finds expression in Ireland's Case.  In People v O'Brien[48] Kingsmill Moore J said:

   'I am disposed to lay emphasis not so much on alleged fairness to the accused as on the public interest that the law should be observed even in the investigation of crime.'

   In Lawrie v Muir[49] (in a passage later cited by Lord Hodson, speaking for their Lordships in the Judicial Committee, in King v The Queen[50]) the Lord Justice-General, Lord Cooper said:

   'From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict - (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from courts of law on any merely formal or technical ground.  Neither of these objects can be insisted upon to the uttermost.  The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference, and the common sanction is an action of damages.  The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law.  On the other hand the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods.'"

   Thus the chief object of the public policy discretion is the constraining of law enforcement authorities so as to prevent their engaging in illegal or improper conduct, although the securing of fairness to an accused is a relevant factor in the exercise of the discretion.  But if a confession of an offence is voluntarily made in circumstances that throw no doubt on its reliability, it is difficult to identify the unfairness that may be thought to affect the admission of his confession in evidence at his trial for that offence.  The unfairness, if any, must consist in the admission of a confession which would not have been made or would not have been made in the form in which it was made if a person or persons in authority had treated the confessionalist in a lawful and proper manner.  Unfairness of this kind, if it is to be regarded as unfairness, is different from the unfairness of admitting a confession of dubious reliability into evidence with the attendant risk of wrongful conviction.  Unfairness of the former kind is simply the disadvantage suffered as the result of the conduct of the person or persons in authority.  To characterise that disadvantage as "unfair", the conduct which produced the confession must be of such a nature and degree that no suspect in the confessionalist's place ought to be subjected to it.  That judgment must be made by reference to either a controlling statute or public policy.

   [47] (1978) 141 CLR 54 at 75-76.

   [48] [1965] IR 142 at 160.

   [49] [1950] SLT 37 at 39-40.

   [50] [1969] 1 AC 304 at 315.

9. When the public policy discretion was held in Cleland to apply to confessional evidence, it was inevitable that there would be a considerable overlap between that discretion and the fairness discretion.  That situation was recognised by Deane J in Cleland[51]:

   "    It follows that where it appears that a voluntary confessional statement has been procured by unlawful or improper conduct on the part of law enforcement officers, there arise two independent, but related, questions as to whether evidence of the making of the statement should be excluded in the exercise of judicial discretion.  That does not mean that there will be a need for two independent inquiries on the voir dire.  The material relevant to the exercise of both discretions will ordinarily be the same.  The unlawful or improper conduct of the law enforcement officers will ordinarily be relevant on the question of unfairness to the accused and unfairness to the accused will ordinarily be relevant on the question of the requirements of public policy.  The task of the trial judge, in such a case, will involve determining whether, on the material before him, the evidence of the voluntary confessional statement should be excluded for the reason that it would be unfair to the accused to allow it to be led or for the reason that, on balance, relevant considerations of public policy require that it should be excluded."

   Dawson J accepted the distinction between the fairness discretion and the public policy discretion, but he expected that there would be few occasions when an objection to the admission of a confession on the ground of unfairness would fail and an objection on the ground of public policy would succeed.  He said[52]:

   "    The rule in Bunning v Cross entails its own considerations.  Theoretically at least, it is conceivable that notwithstanding that it may not be unfair to the accused to admit a confessional statement in evidence, the competing policy requirements referred to in Bunning v Cross may require the rejection of the evidence in the discretion of the trial judge.  No doubt such instances will be rare for, on the one hand, the law is markedly sensitive in the area of confessional statements and, on the other hand, the exercise of the discretion to reject relevant evidence, on the ground that the public interest in the protection of the individual from unlawful or improper treatment outweighs the public need to bring to conviction those who commit criminal offences, will not lightly be made.  In Collins v The Queen[53], Brennan J said:

   'Factors of the kinds which, in Ireland's Case and in Bunning v Cross, were said to be relevant in exercising a discretion with respect to the admission of real evidence, may be relevant in exercising a discretion with respect to the admission of voluntary confessions, but it is difficult to conceive of a case - though I do not say such a case could never arise - where a voluntary confession which might fairly be admitted against an accused person would be rejected in the public interest because of unlawful conduct leading to the making of the confession.  When the admission of confessional evidence is in question, the material facts are evaluated primarily to determine whether it is unfair to the accused to use his confession against him, and it would be only in a very exceptional case that the residual question would arise as to whether the public interest requires the rejection of the confession.'

   With those words I respectfully agree".

   [51] (1982) 151 CLR 1 at 23-24.

   [52] (1982) 151 CLR 1 at 34-35; and see per Gibbs CJ in Williams v The Queen (1986) 161 CLR 278 at 286.

   [53] (1980) 31 ALR 257 at 317.

10. The latest and most authoritative statement on the relationship between the fairness discretion and the public policy discretion appears in the judgment of Mason CJ, Deane, Dawson, Toohey and Gaudron JJ in Foster v The Queen[54]:

    "    It is now settled[55] that, in a case where a voluntary confessional statement has been procured by unlawful police conduct, a trial judge should, if appropriate objection is taken on behalf of the accused, consider whether evidence of the statement should be excluded in the exercise of either of two independent discretions.  The first of those discretions exists as part of a cohesive body of principles and rules on the special subject of evidence of confessional statements.  It is the discretion to exclude evidence on the ground that its reception would be unfair to the accused, a discretion which is not confined to unlawfully obtained evidence.[56]  The second of those discretions is a particular instance of a discretion which exists in relation to unlawfully obtained evidence generally, whether confessional or 'real'.  It is the discretion to exclude evidence of such a confessional statement on public policy grounds.  The considerations relevant to the exercise of each discretion have been identified in a number of past cases in the Court.[57]  To no small extent, they overlap.  The focus of the two discretions is, however, different.  In particular, when the question of unfairness to the accused is under consideration, the focus will tend to be on the effect of the unlawful conduct on the particular accused whereas, when the question of the requirements of public policy is under consideration, the focus will be on 'large matters of public policy'[58] and the relevance and importance of fairness and unfairness to the particular accused will depend upon the circumstances of the particular case.[59]  In a case where both discretions are relied upon to support an application for the exclusion of a voluntary incriminating statement obtained by unlawful police conduct, it will commonly be convenient for the court to address first the question whether the evidence should be excluded on the ground that its reception and use in evidence would be unfair to the accused.  It is so in the present case."  (Emphasis added.)

    [54] (1993) 67 ALJR 550 at 554; 113 ALR 1 at 6-7.

    [55]    See, in particular, Cleland v The Queen (1982) 151 CLR 1 at 9, 23-24, 34-35; Pollard v The Queen (1992) 176 CLR 177 at 184, 196, 200-201, 234-235.

    [56]    See Duke v The Queen (1989) 180 CLR 508 at 513 per Brennan J; Van der Meer v The Queen (1988) 62 ALJR 656 at 665-666 per Wilson, Dawson and Toohey JJ; 82 ALR 10 at 25-26. See also Collins v The Queen (1980) 31 ALR 257 at 277 per Muirhead J, at 313 per Brennan J.

    [57]    See, as regards the unfairness discretion, McDermott v The King (1948) 76 CLR 501 at 513-515; R v Lee (1950) 82 CLR 133 at 148-155; Pollard v The Queen (1992) 176 CLR 177 at 234-235 and, as regards the public policy discretion, R v Ireland (1970) 126 CLR 321 at 334-335; Bunning v Cross (1978) 141 CLR 54 at 74-80; Pollard v The Queen (1992) 176 CLR 177 at 184, 196-197, 201-205.

    [58]    Bunning v Cross (1978) 141 CLR 54 at 77 per Stephen and Aickin JJ.

    [59] (1978) 141 CLR 54 at 77-78; Pollard v The Queen (1992) 176 CLR 177 at 203.

1. In its application to evidence of confessions, the public policy discretion requires a balance to be struck between the public interest in placing the court in possession of all relevant admissible evidence and the public interest in ensuring that law enforcement officers do not act unlawfully or improperly.  In striking this balance, any doubt about the reliability of a confession obtained by the unlawful or improper conduct is a factor that would have to be taken into account.

   The overlap of the fairness and public policy discretion

2. The elements, or factors relevant to the exercise, of the two discretions to exclude a voluntary confession are substantially the same.  Before either discretion is enlivened there has to be some illegality or impropriety on the part of law enforcement officers that results in the making of the confession.  In either case, the public interest in placing the court in possession of relevant admissible evidence is material.  But a distinction can be made between the admission of a confession which, by reason of the conduct of the law enforcement officers, is of dubious reliability - an established kind of unfairness -and the admission of a confession which is both voluntary and apparently reliable but which would not have been made or would not have been made in the particular form but for the illegal or improper conduct of law enforcement officers.  Should this distinction mark out the areas in which the two discretions operate, so that the fairness discretion is enlivened when the reliability of the confession is dubious and the public policy discretion is enlivened in other cases?

3. Mason CJ in Van der Meer[60] and I in Duke[61] rejected this dichotomy.  We regarded the admission of confessions in the latter situation as falling for consideration under the fairness discretion.  That approach would leave the public policy discretion with little work to do.  In exercising the fairness discretion, the quality and degree of any unlawful or improper conduct by law enforcement officers would be evaluated.  That approach is consistent with the judgment of Dixon J in McDermott.  But now that the development of the public policy discretion allows for the balancing of the public interest in refusing to sanction unlawful or improper conduct and the public interest in placing all relevant and admissible evidence before a court, there is much to be said for remitting consideration of the conduct of law enforcement officers to the public policy discretion in all cases except where that conduct makes the reliability of the confession dubious.  The fairness discretion would then focus on cases where the conduct which induces the making of a voluntary confession throws doubt on its reliability and thereby establishes the unfairness of using the confession against the confessionalist on his trial.  Taking this approach, the public policy discretion would focus on the kind and degree of illegal or improper conduct that produced the confession or produced the confession in a particular form.  If the focus is on the conduct of the law enforcement officers, the issue can be sharply delineated:  is the confession, albeit voluntary and apparently reliable, to be admitted in the public interest or is it to be excluded in the public interest because of the conduct by which it was obtained?  In answering this question, the weight to be given to the competing factors would depend on the nature of the charge and the circumstances of the case.  As Deane J said in Pollard v The Queen[62]:

   "The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement.  The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers."

   [60] (1988) 62 ALJR 656 at 662; 82 ALR 10 at 20.

   [61] (1989) 180 CLR 508 at 512.

   [62] (1992) 176 CLR 177 at 203.

4. Of course, the two discretions do overlap and in a sense it is immaterial whether a trial judge considers the facts of a case under one heading rather than another.  But a consideration of the nature and degree of the conduct of law enforcement officers under the heading of public policy clarifies the significance of any illegal or improper conduct on the part of law enforcement officers.  If the confession is voluntary and apparently reliable, the only unfairness to an accused in admitting his confession against him is that he was induced to make the confession by conduct which is contrary to statute or to public policy.  For example, if a confession is obtained in breach of an important statutory directive to law enforcement officers or by their deliberate or reckless disregard for the law or for proper standards of conduct, the public interest may require the rejection of a voluntary and apparently reliable confession.  In such a case, the public policy discretion will be exercised in much the same way as Dixon J contemplated in McDermott that the fairness discretion would be exercised or as Toohey J appears to have intended that discretion to be exercised in Duke[63]:

   "[W]hile doubts about the reliability of a confession may provide a basis for concern and in turn for the exercise of the discretion, the methods by which a confession is obtained may themselves warrant a conclusion that it would be unfair to admit the material though there may be no room to doubt its reliability.  In the present case a relevant factor to consider in the exercise of the discretion is whether the confession was obtained while the applicant was held in unlawful custody and whether it would thereby be unfair to him to admit the confessional evidence.  In suggesting that there could be no unfairness in admitting the confession because it was voluntary, the learned trial judge was in error.  A finding of voluntariness does not preclude the exercise of the discretion to exclude evidence by reason of unfairness or public interest."

   [63] (1989) 180 CLR 508 at 526-527.

   Unduly prejudicial evidence

5. There is one further possible category of exclusion of evidence including voluntary confessional statements.  That category consists of evidence the probative value of which is small but the undue prejudice which it is likely to  produce is substantial.  In R v Christie[64], Lord Reading said:

   "Nowadays, it is the constant practice for the judge who presides at the trial to indicate his opinion to counsel for the prosecution that evidence which, although admissible in law, has little value in its direct bearing upon the case, and might indirectly operate seriously to the prejudice of the accused, should not be given against him, and speaking generally counsel accepts the suggestion and does not press for the admission of the evidence unless he has good reason for it."

   A more robust approach to exclusion was taken in later cases.  In Driscoll v The Queen[65], Gibbs J was able to say:

   "It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused.  The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused".

   The same view was taken in England by Lord Diplock in R v Sang[66]:

   "A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value."

   [64] [1914] AC 545 at 564-565.

   [65] (1977) 137 CLR 517 at 541, citing R v Christie [1914] AC 545 at 560; Noor Mohamed v The King [1949] AC 182 at 192; Harris v Director of Public Prosecutions [1952] AC 694 at 707; Kuruma v The Queen [1955] AC 197 at 204.

   [66] [1980] AC 402 at 437; but cf per McHugh J in Pfennig v The Queen (1995) 182 CLR 461 at 528.

6. However, once a confession is admitted in evidence, the weight to be placed upon it is a matter for the jury[67].  In Wendo v The Queen[68] Dixon CJ said:

   "It appears to me that once it was established that a prisoner understood what he was doing in making a statement which, if true, would amount to a confession, it is admissible in evidence quite independently of its probative value.  See the discussion in Sinclair's Case[69].  I do not think really that probative value is ever a question for the judge to decide conclusively.  At all events I am not able to call to mind any conditions in which it would be."

   Perhaps a case such as Surujpaulv The Queen[70], where the confessionalist has no knowledge of the fact confessed, is an example of the application of this category of exclusion to a statement that is prima facie inculpatory.  The scope of this exclusion has been considered in several cases[71] but it is not necessary to consider them in these proceedings.

   [67]    Sinclair v The King (1946) 73 CLR 316 at 338. We are not here concerned with the form in which evidence of a confession is tendered but with the exclusion of confessional evidence, whatever its form, on the ground that the content of the confession, if admitted, would be unduly prejudicial.

   [68] (1963) 109 CLR 559 at 562.

   [69] (1946) 73 CLR 316 at 336-338.

   [70] [1958] 1 WLR 1050; [1958] 3 All ER 300.

   [71]    In criminal cases, admissions of a fact of which the confessionalist has no personal knowledge are sometimes treated as having no probative force:  see Surujpaul v The Queen [1958] 1 WLR 1050; [1958] 3 All ER 300; Comptroller of Customs v Western Lectric Co Ltd [1966] AC 367 at 371; R v Hart [1979] Qd R 8; but cf Brady (1980) 2 A Crim R 42; Anglim & Cooke v Thomas [1974] VR 363 at 372; R v Longford (1970) 17 FLR 37.

   The application of the principles in these cases

7. In Swaffield's case, the Court of Appeal allowed the appeal because, in the view of the majority, the evidence of Swaffield's admissions to Constable Jacob Marshall, the undercover police officer who had gained Swaffield's confidence, ought to have been excluded.  Consistently with the role he was purporting to play, Constable Marshall had not given Swaffield any caution before leading the conversation to the point where he elicited the inculpatory admissions from Swaffield.  The circumstances in which those admissions were made throw no doubt on their voluntary nature or on their reliability.  I would therefore consider the case under the public policy discretion.

8. Helman J, with whom Fitzgerald P agreed, observed that, if the evidence were admitted

   "the requirements of the Judges' Rules could be avoided by the simple expedient of the investigating police officer's assuming a suitable disguise and then proceeding to interrogate the suspect."

   His Honour concluded that the trial judge

   "was clearly wrong in failing to give sufficient weight to the protection of the appellant's right to silence, and as a result of that error his discretion miscarried."

9. The "right to silence" to which his Honour referred was simply the entitlement of Swaffield, whom the police believed to be guilty of the alleged arson of the Leichhardt Rowing Club, to be cautioned by any police officer who proposed to question him about that alleged arson.  Giving that content to the "right", it is correct to say that the trial judge did not give weight to Swaffield's "right to silence".  But it would be a mistake to assume that there is some general "right to silence" wider than or different from the privilege that any person enjoys not to answer questions asked of him about an alleged offence by persons in authority, his entitlement to be treated in a lawful and proper manner by persons in authority engaged in investigating an offence and the immunity from the drawing of adverse inferences from his refusal to answer questions about the offence asked by persons in authority.  In Swaffield's case, Constable Marshall, who was relevantly a person in authority, deliberately represented himself not to be a police officer in order to secure answers to questions which Swaffield had earlier told the police that he would not answer.  True it is that Constable Marshall had adopted an undercover guise in order to pursue investigations into drug offences, not into the arson offence.  There was nothing improper in Constable Marshall adopting that guise in order to obtain evidence of drug offences, but Constable Marshall went outside the investigation into drug offences.  He deliberately sought admissions relating to the arson which Swaffield had previously refused to make to the police, as he was entitled to do.

10. There is a public interest in ensuring that the police do not adopt tactics that are designed simply to avoid the limitations on their inquisitorial functions that the courts regard as appropriate in a free society.  In the particular circumstances of this case, the majority of the Court of Appeal gave great weight to that interest.  Against that interest, the public interest in having Swaffield's admissions available to the Court on his trial for arson has to be weighed.  Pincus JA dissented.  There is much to be said for either view.  This Court can determine which view ought to have prevailed but when the question touches the standards and methods of police investigation in a particular case, it is undesirable for this Court to intervene except in cases where the decision of the Court below has proceeded on an erroneous principle or is otherwise manifestly wrong.  In Swaffield's case, that condition is not satisfied.  I would therefore dismiss the appeal in that case.

11. In Pavic's case, the confessional statements were made to Clancy whom Pavic knew as a friend.  Clancy was not a police officer or other person in authority over Pavic.  There was no impropriety in the police obtaining Clancy's consent to the recording by Clancy of his intended conversation with Pavic.  A serious crime had been committed and the means adopted for its solution and for the securing of evidence against the prime suspect were quite legitimate.  The investigation of crime is not a game governed by a sportsman's code of fair play[72].  Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity "to invent plausible falsehoods"[73].

    [72]    Bunning v Cross (1978) 141 CLR 54 at 75 per Stephen and Aickin JJ.

    [73]    R v Lee (1950) 82 CLR 133 at 152.

12. The fact that Clancy was regarded as trustworthy by Pavic is an indicator of the reliability of the admissions made to Clancy.  There was no public interest to be served by rejecting those admissions.  The Court of Appeal in Victoria was therefore right to dismiss Pavic's application for leave to appeal.

13. In my opinion, both appeals should be dismissed.

1. TOOHEY, GAUDRON AND GUMMOW JJ.   These appeals, which were heard together, concern the admissibility of evidence obtained by means of a conversation recorded without the knowledge, in the first case of the respondent and in the second case of the appellant.  Since the convicted person is, in one case, the respondent and, in the other, the appellant, it makes for greater clarity to refer to them by name.  Some reference to the facts in each case is necessary.

   Swaffield

2. Swaffield was convicted in the District Court of Queensland of the three offences with which he had been charged.  The first was of breaking and entering the workshop of Metal Recyclers (Qld) Pty Ltd and stealing various articles including cutting equipment.  The second was of breaking and entering the premises of Leichhardt Rowing Club with intent to commit an indictable offence.  The third was of wilfully and unlawfully setting fire to the Leichhardt Rowing Club.  The cutting equipment, the subject of the first charge, was used in connection with the second offence.

3. Swaffield was convicted of these offences on 7 December 1995.  He was initially charged with the offences on 7 September 1993.  He had declined to be formally interviewed by the police.  Blood and hair samples were then taken from him.  A committal hearing was set for 13 November 1993 but on that day the police offered no evidence against him and he was discharged.  At that time the only evidence against Swaffield was that a car similar to his had been seen in the vicinity of the Rowing Club on the night the premises were set alight.

4. In May 1994 the police began an undercover operation aimed at the detection of drug suppliers in the areas of Yeppoon and Rockhampton in Queensland.  Swaffield was one of the operation's targets.  In July 1994 a police officer concerned with the investigation of the arson offence passed on the brief of evidence to the "controller" of Constable Marshall, who was an undercover officer in the drug detection operation.  On 11 August 1994 Constable Marshall held a conversation with Swaffield, during which the former pretended that his brother‑in‑law "down the coast" was in trouble for burning a car.  In conversations between the two men Swaffield made admissions of his involvement in the fire at the Rowing Club.

5. In consequence of the admissions made by Swaffield, fresh charges were laid against him.  He was duly committed for trial and his trial began on 5 December 1995.  When the trial began counsel for Swaffield submitted that evidence of his conversations with Constable Marshall should not be admitted, on the ground that there had been a disregard of the Judges' Rules and that the unfairness this involved should lead to an exercise of the trial judge's discretion to exclude the evidence.  Although reference is made in the transcript of proceedings to Rule 3 of the Judges' Rules, it was assumed in the Court of Appeal that Rule 2 was the relevant rule.  The matter proceeded in this Court on that footing.

6. Rule 2 reads:

   "Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking him any questions, or any further questions, as the case may be."

7. The trial judge, in the exercise of his discretion, declined to exclude the conversations from evidence.  Swaffield was convicted of the three offences; his appeal to the Court of Appeal was against the conviction for arson only.  The Court by majority (Fitzgerald P and Helman J, Pincus JA dissenting) allowed the appeal, quashed the conviction and entered a verdict of acquittal.  The Crown has appealed to this Court.

   Pavic

8. On 15 December 1994 Andrew Astbury disappeared.  On 18 December several police officers questioned Pavic and members of his family about the disappearance.  Pavic was told that he did not have to speak with the police and also that if he had been in a fight with Astbury he ought to obtain legal advice and, depending on that advice, attend the police station to take part in a tape‑recorded interview.

9. On 26 December 1994 the body of Andrew Astbury was found. On 3 January 1995 the police took Pavic into custody and conducted an interview with him in accordance with Pt 3 Div 1 Subdiv 30A of the Crimes Act 1958 (Vic)[74].  During that interview Pavic maintained his right not to answer any questions.  At the end of the interview the police officers concerned told Pavic that they believed he had committed the offence of murder.  However they did not charge him and he was released from custody.

   [74] Section 464A prescribes the procedure to be followed when a person is taken into custody for an offence. If a person suspected of having committed an offence is in custody, an investigating official may, within a reasonable time, question the person but must first inform the person that he or she does not have to say anything but that anything the person says may be given in evidence.

10. On 9 January 1995 police officers took a statement from Lewis James Clancy, a close friend of the appellant.  At the conclusion of the interview the investigating police officers believed they had enough evidence to charge Pavic with the murder of Andrew Astbury.  However, they suggested to Clancy that he, on behalf of the police, speak with Pavic and that, for the purpose, he carry a recording device.  Clancy agreed to the proposal and spoke to Pavic who made admissions of his involvement in the killing of Andrew Astbury.

1. In due course Pavic was committed for trial.  In the Supreme Court of Victoria he pleaded not guilty to a charge of murder but guilty to manslaughter of the deceased.  At the commencement of his trial, Pavic's counsel objected to evidence of the interview with Clancy on the ground that it would be unfair to Pavic to admit the evidence and submitted that the trial judge should exercise his discretion to exclude it.  The trial judge declined so to exercise his discretion; the evidence played a substantial part in the case against Pavic.  He was convicted of murder and his appeal to the Court of Criminal Appeal was dismissed.  He has appealed to this Court.

   The issues

2. As mentioned earlier, the two appeals were heard together on the footing that they involved the same issues although the factual aspects were different.  And, of course, one was a Crown appeal against a judgment upholding an appeal against the refusal to exercise the discretion.  As will appear, the arguments originally presented to this Court underwent development in response to questioning from the Bench.  It is, we think, helpful to look first at the arguments as originally presented and then to identify the footing on which each of the appeals was left for determination by the Court.

3. In each of the appeals, what the accused had sought to have excluded was a confessional statement, that is, a statement acknowledging, or from which an acknowledgment might be drawn, that he was guilty of the offence charged.  Four bases for the rejection of a statement by an accused person are to be discerned in decisions of this Court.  The first lies in the fundamental requirement of the common law that a confessional statement must be voluntary, that is, "made in the exercise of a free choice to speak or be silent"[75].  The will of the statement‑maker must not have been overborne.  The relevant principle was stated by Dixon J in McDermott v The King[76] in these terms:

   "If [the] statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.  But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made".

   It should be said immediately that in neither of the appeals was it contended that the confession was made involuntarily.

   [75]    R v Lee (1950) 82 CLR 133 at 149. See also MacPherson v The Queen (1981) 147 CLR 512 at 519; Cleland v The Queen (1982) 151 CLR 1 at 5; Collins v The Queen (1980) 31 ALR 257 at 307.

   [76] (1948) 76 CLR 501 at 511.

4. The second, third and fourth bases for the rejection of a statement made by an accused person proceed on the footing that the statement was made voluntarily.  Each involves the exercise of a judicial discretion.

5. The second basis is that it would be unfair to the accused to admit the statement.  The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person.  The third basis focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused.  The purpose of the discretion which is brought to bear with that emphasis is the protection of the public interest.  The fourth basis focuses on the probative value of the statement, there being a power, usually referred to as a discretion, to reject evidence the prejudicial impact of which is greater than its probative value.  The purpose of that power or discretion is to guard against a miscarriage of justice.

   Unfairness

6. The term "unfairness" necessarily lacks precision; it involves an evaluation of circumstances.  But one thing is clear:

   "[T]he question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him ...  Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement."[77]

   [77]    Van der Meer v The Queen (1988) 62 ALJR 656 at 666; 82 ALR 10 at 26 per Wilson, Dawson and Toohey JJ.

7. Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted.  While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone.  It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted[78].  And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred.

   [78]    Van der Meer v The Queen (1988) 62 ALJR 656 at 662; 82 ALR 10 at 20 per Mason CJ; Duke v The Queen (1989) 180 CLR 508 at 513 per Brennan J.

8. The appeal relating to Swaffield involved the Judges' Rules in Queensland.  Their precise status is still a matter for debate but it is apparent that they are regarded as a yardstick against which issues of unfairness (and impropriety) may be measured[79].

   [79]    Van der Meer v The Queen (1988) 62 ALJR 656 at 666; 82 ALR 10 at 26 per Wilson, Dawson and Toohey JJ.

9. It will be necessary to return to the unfairness discretion and to the Judges' Rules but, before doing so, it is helpful to say something more about the policy discretion and, also, about the power or discretion to exclude evidence which is more prejudicial than probative.

   Policy discretion

10. The concept of a discretion to exclude confessional evidence, even where no unfairness to the accused has been demonstrated, was recognised in R v Ireland where Barwick CJ, with whom McTiernan, Windeyer, Owen and Walsh JJ agreed, said[80]:

    "    Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible ...  Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence ...  In the exercise of it, the competing public requirements must be considered and weighed against each other.  On the one hand there is the public need to bring to conviction those who commit criminal offences.  On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment.  Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price."

    [80] (1970) 126 CLR 321 at 334‑335.

11. Barwick CJ spoke in terms both of unlawfulness and unfairness.  It is not certain whether the Chief Justice was giving additional scope to the unfairness discretion or was recognising an independent discretion to exclude evidence.  Earlier in McDermott Dixon J had spoken in broad terms when he said[81]:

    "In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused."

    [81] (1948) 76 CLR 501 at 513.

12. In Bunning v Cross this aspect was put beyond doubt when Stephen and Aickin JJ, with whom Barwick CJ agreed, spoke in terms of "broader questions of high public policy"[82].  They did so in explanation of Ireland[83] where evidence had been obtained in breach of a statutory provision relating to the photographing of a suspect.  Bunning v Cross was seen in Ridgeway v The Queen as supporting the exclusion of evidence of an offence, or an element of an offence, procured by unlawful or improper conduct on the part of law enforcement officers[84].

    [82] (1978) 141 CLR 54 at 74. Strictly speaking, the case was concerned with the admission of a breathalyser test on a charge of driving under the influence of alcohol. But in Cleland v The Queen (1982) 151 CLR 1 it was made clear that the principles in Bunning v Cross extended to confessional statements.

    [83] (1970) 126 CLR 321.

    [84] (1995) 184 CLR 19, especially at 34, 36 and 37.

13. In Foster v The Queen[85], which was decided two years before Ridgeway, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said that although in many cases the two discretions will overlap, their focus is different.

    "In particular, when the question of unfairness to the accused is under consideration, the focus will tend to be on the effect of the unlawful conduct on the particular accused whereas, when the question of the requirements of public policy is under consideration, the focus will be on 'large matters of public policy'".

    Their Honours added that in cases where both discretions are relied upon, "it will commonly be convenient for the court to address first the question whether the evidence should be excluded on the ground that its reception and use in evidence would be unfair to the accused".

    [85] (1993) 67 ALJR 550 at 554; 113 ALR 1 at 7.

14. In Ridgeway Mason CJ, Deane and Dawson JJ referred to the discretion to exclude evidence of an illegally procured offence as arguably not distinct and independent of the discretion to exclude illegally procured evidence, but as "complementary aspects of a single discretion which encompasses them both"[86].

    [86] (1995) 184 CLR 19 at 38.

    The discretion to exclude evidence where prejudicial effect exceeds probative value

15. In Cross on Evidence[87] the following statement appears under the heading "Discretion to exclude relevant evidence in criminal proceedings":

    "Evidence may be excluded where its prejudicial effect exceeds its probative value.  This is commonly applied in relation to similar fact evidence, but can apply more generally."

    [87]    Cross on Evidence, 5th Australian ed (1996) at 294.

16. Certainly there are judicial statements to that effect as for instance in R v Edelsten[88] where the Court of Criminal Appeal adopted a passage from the judgment of Hunt J in R v Merritt and Roso[89] in which it is said that there are three distinct areas of the trial judge's discretion to exclude evidence that is technically admissible, the first arising "where the prejudicial effect of that evidence outweighs its probative value".

    [88] (1990) 21 NSWLR 542 at 551‑552.

    [89] (1985) 19 A Crim R 360 at 377.

17. A number of the authorities relied upon in Edelsten to support this proposition deal with similar fact or propensity evidence.  However, as a matter of principle there is no reason why the power or discretion to exclude evidence which is unduly prejudicial should not extend to a statement made by an accused person and to other evidence upon which it would be dangerous for a jury to act[90].  In the case of propensity evidence which is not of a kind that compels an inference of guilt[91], evidence which is prejudicial rather than probative is simply inadmissible.  In other situations it may be necessary to reject such evidence because "no account ought to be taken of [it] ... for any evidentiary purpose"[92].  And there may be yet other situations where it is necessary to reject evidence which is prejudicial rather than probative to avoid a risk of a miscarriage of justice[93].  In such cases it is not entirely accurate to speak in terms of a discretion.  In Pfennig v The Queen[94] Mason CJ, Deane and Dawson JJ spoke of two relevant principles enunciated by Lord Herschell LC in Makin v Attorney‑General (NSW)[95], the second of which "seemed to imply that propensity evidence was ... inadmissible for some overriding policy reason, ie, that in many cases its prejudicial effect would outweigh its probative force".  And the discretion has sometimes been seen to involve considerations of fairness to the accused.  Thus in R v Wray[96] Martland J, speaking for a majority of the Supreme Court of Canada, said:

    "The allowance of admissible evidence relevant to the issue before the court and of substantial probative value may operate unfortunately for the accused, but not unfairly.  It is only the allowance of evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling, which can be said to operate unfairly."[97]

    However, the fairness at issue in cases involving the exercise of a discretion to exclude unduly prejudicial evidence is the fairness of the trial, in the sense of a trial that does not involve a perceptible risk of a miscarriage of justice.

    [90]    See, for instance, R v Kallis [1994] 2 Qd R 88 where the Queensland Court of Appeal said that comments by police officers should have been excluded from a video‑taped interview.

    [91]    See Hoch v The Queen (1988) 165 CLR 292 at 294‑295; Harriman v The Queen (1989) 167 CLR 590 at 600; Pfennig v The Queen (1995) 182 CLR 461 at 481‑482; BRS v The Queen (1997) 71 ALJR 1512 at 1524; 148 ALR 101 at 117.

    [92]    Sinclair v The King (1946) 73 CLR 316 at 338.

    [93]    See with respect to the need to give a warning to avoid a perceptible risk of a miscarriage of justice, Bromley v The Queen (1986) 161 CLR 315 at 325; Carr v The Queen (1988) 165 CLR 314 at 330; Longman v The Queen (1989) 168 CLR 79 at 87; Duke v The Queen (1989) 180 CLR 508 at 515; McKinney v The Queen (1991) 171 CLR 468 at 480; Pollitt v The Queen (1992) 174 CLR 558 at 586, 605; BRS v The Queen (1997) 71 ALJR 1512 at 1526; 148 ALR 101 at 119‑120.

    [94] (1995) 182 CLR 461 at 475‑476.

    [95] [1894] AC 57 at 65.

    [96] [1971] SCR 272 at 293.

    [97]    Note that in R v Sang [1980] AC 402 at 437, R v Corbett [1988] 1 SCR 670 at 745 and R v Potvin [1989] 1 SCR 525 at 531‑532 the discretion has been expressed more broadly, in terms of the prejudicial effect substantially outweighing the probative value of the evidence.

18. Since "the unfairness discretion" is a recognised basis for excluding confessional statements and is dealt with in the authorities as a discrete discretion, the issue whether there is some additional basis for excluding such statements in terms of probative value versus prejudicial effect does not call for further exploration in the present context.  Where confessional statements have been excluded in exercise of the unfairness discretion, it has not been after a weighing of probative value against prejudicial effect has been carried out[98].

    [98]    The weighing process has been carried out in some situations as, for instance, in relation to the withdrawal of a plea of guilty or to edit a confession.  See Pattenden, Judicial Discretion and Criminal Litigation, (1990) at 246.

    General considerations

19. It has been said, rightly, that fairness is a vague concept.  It has also been said that the application of the unfairness discretion is uncertain because courts have failed to define the policy behind the discretion or considerations relevant to it[99].  This, it is argued, makes satisfactory appellate review of the discretion difficult.  The criticism has force though the very nature of the concept inhibits great precision.  An approach to unfairness which focuses on whether reception of the evidence in question may have jeopardised the accused's right to a fair trial because the statement was obtained in circumstances affecting its reliability does admit of application by a trial judge and review on appeal.  However, the unfairness discretion would achieve nothing beyond what is already required by the general law if it were concerned solely to ensure a fair trial.

    [99]    Australian Law Reform Commission Report No 26, Evidence, (1985), vol 2 at 208‑210.

20. The concept of unfairness has been expressed in the widest possible form in the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). Section 90 of both Acts reads:

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

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

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

21. Neither in s 90 nor anywhere else in either Act is there to be found a definition of unfairness. Part 3.11 ‑ "Discretions to Exclude Evidence" contains a number of provisions of a general nature empowering the court to refuse to admit evidence or to limit its use. In particular s 138(1) prohibits the admission of evidence 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;

    ... 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".

    This expresses in the widest terms the policy discretion developed by the common law.  It is true that an approach, expressed in such terms, lacks certainty.  But as the Law Reform Commission of Canada has said[100]:

    "there is an undeniable advantage in granting judges discretionary power, since it keeps the courts continually in touch with current social attitudes and may lead to the eventual evolution of the rules as the courts adapt them to changing social realities".

    [100] See Australian Law Reform Commission Report No 26, Evidence, (1985), vol 1 at 534.

22. It is appropriate now to see how the argument developed in the present appeals.  When the Court resumed after the first day's hearing, the Chief Justice asked counsel to consider whether the present rules in relation to the admissibility of confessions are satisfactory and whether it would be a better approach to think of admissibility as turning first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards.

23. Putting to one side the question of voluntariness, the approach which the Court invited counsel to consider with respect to the common law in Australia is reflected in the sections of the Evidence Acts to which reference has been made, when those sections are taken in combination.  The question which arises immediately is whether the adoption of such a broad principle is an appropriate evolution of the common law or whether its adoption is more truly a matter for legislative action.  Subject to one matter, an analysis of recent cases, together with an understanding of the purposes served by the fairness and policy discretions and the rationale for the inadmissibility of non‑voluntary confessions, support the view that the approach suggested by the Chief Justice in argument already inheres in the common law and should now be recognised as the approach to be adopted when questions arise as to the admission or rejection of confessional material.  The qualification is that the decided cases also reveal that one aspect of the unfairness discretion is to protect against forensic disadvantages which might be occasioned by the admission of confessional statements improperly obtained.

The unfairness and policy discretions:  further analysis

1. The seeds of a broader approach to the admissibility of confessional evidence may be found in Duke v The Queen[101].  That appeal was determined after Bunning v Cross but before Foster.  In Duke Brennan J said[102]:

   "The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted.  If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded."

   His Honour then proceeded to refer to trickery, misrepresentation, unlawful detention and other factors as justifying rejection of evidence of a confession but emphasised that the fact that an impropriety occurred did not carry the consequence that a voluntary confession must be excluded.  He concluded[103]:

   "The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case."

   [101] (1989) 180 CLR 508.

   [102] (1989) 180 CLR 508 at 513.

   [103] (1989) 180 CLR 508 at 513.

1. For my part, I do not see the right as being so broadly based.  As was pointed out in Environment Protection Authority v Caltex Refining Co Pty Ltd[196], the privilege against self-incrimination "emerged as a reaction against procedures of the Courts of Star Chamber and High Commission, and in particular their use of the ex officio, or inquisitorial, oath"[197].  Although such procedures no longer exist, the underlying foundation of the rule remains the same.  It is, as Brennan J described it in Petty, "to prevent oppression by the police or other authorities of the State"[198].

   [196] (1993) 178 CLR 477.

   [197] (1993) 178 CLR 477 at 526.

   [198] (1991) 173 CLR 95 at 107.

2. In applying the right to silence to covertly recorded conversations, consideration of United States and Canadian judicial authority is instructive.  It must be remembered that, in those countries, the right to silence ordinarily derives, in the case of the United States of America, from the Fifth Amendment privilege against self-incrimination and in Canada, now, from the Canadian Charter of Rights and Freedoms.  Additionally, in both countries the right does not usually extend beyond the protection of statements made while the accused is in custody[199].  Bearing these considerations in mind, it is still helpful to review the way that the right has been applied in the context of covert official surveillance by police designed to gather evidence for use against an accused in a criminal prosecution.

   [199] In the United States of America, see Miranda v Arizona 384 US 436 at 444 (1966); Hoffa v United States 385 US 293 at 303-304 (1966); Illinois v Perkins 496 US 292 at 296-298 (1990). In Canada, see R v Hebert [1990] 2 SCR 151 at 184; R v Unger (1993) 83 CCC (3d) 228 at 249-250.

1. In Illinois v Perkins[200], the Supreme Court of the United States characterised the right to silence as a matter of preserving the balance between the State and the individual.  The Court held that[201]:

   "The essential ingredients of a 'police-dominated atmosphere' and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate. ... When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking. ... '[W]hen the agent carries neither badge nor gun and wears not "police blue," but the same prison gray' as the suspect, there is no 'interplay between police interrogation and police custody.'"

   [200] 496 US 292 (1990).

   [201] 496 US 292 at 296-297 (1990).

2. This statement of the test may not be appropriate for Australian conditions where there is no constitutional foundation for the right.  However, the general atmosphere of a conversation must be considered in assessing fairness.  It is also important to take into account the way in which the confession was made, and, in particular, whether it can be said to have been elicited by interrogation and questioning directed at procuring a confession.

3. The Canadian authorities do not draw an automatic distinction between confessions to an undercover police officer and those to a friend or acquaintance. 

   In R v Hebert[202], a majority of the Supreme Court of Canada[203] held that[204]:

   [202] [1990] 2 SCR 151.

   [203] McLachlin J; Dickson CJ, Lamer, La Forest, L'Heureux-Dubé, Gonthier and Cory JJ concurring.

   [204] [1990] 2 SCR 151 at 184.

   "[T]he right to silence predicated on the suspect's right to choose freely whether to speak to the police or to remain silent does not affect voluntary statements made to fellow cell mates. ... This would be the case regardless of whether the agent used to subvert the accused's right was a cell mate, acting at the time as a police informant, or an undercover police officer."

However, the majority went on to distinguish between[205]:

"the use of undercover agents to observe the suspect, and the use of undercover agents to actively elicit information in violation of the suspect's choice to remain silent. ... [I]n the absence of eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police.  If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police."

Citing United States authority, the Canadian judges concluded that[206]:

"[T]he defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks."

[205] [1990] 2 SCR 151 at 184-185.

[206] [1990] 2 SCR 151 at 185, citing Kuhlmann v Wilson 477 US 436 at 459 (1986).

1. This concept of elicitation was further refined by the Supreme Court of Canada in R v Broyles[207].  There, the Court held that the question to be answered was whether, considering all the circumstances of the exchange between the accused and the state agent, there was a causal link between the conduct of the agent and the making of the inculpating statement by the accused[208].  In responding to this question, the Court held that two sets of factors should be taken into account[209]:

   "    The first set of factors concerns the nature of the exchange between the accused and the state agent.  Did the state agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done?  The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.

   The second set of factors concerns the nature of the relationship between the state agent and the accused.  Did the state agent exploit any special characteristics of the relationship to extract the statement?  Was there a relationship of trust between the state agent and the accused?  Was the accused obligated or vulnerable to the state agent?  Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?"

   [207] [1991] 3 SCR 595; cf R v Brown [1993] 2 SCR 918 at 927-929.

   [208] [1991] 3 SCR 595 at 611.

   [209] [1991] 3 SCR 595 at 611.

2. I agree in the approach expressed by the Supreme Court of Canada.  I do not consider that it is derived from the Charter so as to make it inapplicable to analogous circumstances in Australia.  The test propounded is consistent with the general approach which our law has taken towards deception by law enforcement officials.  Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest[210].  There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice.  Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority[211].  Such facilities must be employed by any modern police service.  The critical question is not whether the accused has been tricked and secretly recorded.  It is not even whether the trick has resulted in self‑incrimination, electronically preserved to do great damage to the accused at the trial.  It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value.  In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent.  Or it will be crossed where police have exploited any special characteristics of the relationship between the suspect and their agent so as to extract a statement which would not otherwise have been made.

   [210] Ridgeway v The Queen (1995) 184 CLR 19 at 37; R v Christou [1992] QB 979 at 989; cf Rothman v The Queen [1981] 1 SCR 640 at 697.

   [211] cf Ousley v The Queen (1997) 71 ALJR 1548; 148 ALR 510 at 558.

3. Having stated what I believe to be the applicable principles, I now consider whether, in either case before the Court, the accused was entitled to have the residual judicial discretion exercised in a way favourable to him so as to exclude his admissions.

   Admissibility in the present cases

4. The Pavic Case   In Mr Pavic's case, his friend Mr Clancy was, in my view, an agent of the police for the purpose of conducting the conversation which resulted in the recording containing the damaging admissions.  The first question, therefore, is whether, considering all the circumstances of the exchange between the two, Mr Pavic's admissions were elicited by Mr Clancy, or merely arose during the course of the conversation.  To answer that question there is no alternative but to examine the transcript.  Because I differ on this point from my colleagues, I must explain the difference, even at the cost of more detail.

5. Mr Clancy began the conversation by informing Mr Pavic that he had had a visit from the police:

   "[Clancy]: Just say mate, I had a visit, fucking 5 hours mate.
   [Pavic]: Did you?  Work it out?...
   [Clancy]: They're implicating me in this.
   [Pavic]: No Lou.  When it comes to the crunch, you won't have to fucking worry.  ...

   ...

   [Clancy]: They want, they want, that'd fucking take me down mate.
   [Pavic]: Mate, Lou.
   [Clancy]: Fucking they're saying, they're talking about clothes mate.  Fucking clothes.  Showing me fucking photographs of my fucking clothes.
   [Pavic]: Yeah.
   [Clancy]: Fucking 'no, no'.  There's fucking blood all over the fucking things mate ...

   [Pavic]: Yeah, don't worry Lou.  Because I'm not going to, when, Lou, its going to go down sort of soon, and I'm going to go down big time.  I'm not going to fucking drag you into it.  And I'll just, I'm going to sort of have to spill my guts I think."

   Mr Clancy repeatedly complained that he, who had nothing to do with the crime, was at risk of taking the blame.  He went directly to give advice to his friend:

   "[Clancy]: Pav, if I was you, I'd fucking,
   [Pavic]: What?

   [Clancy]: Go and tell them what happened.  Because they fucking, they reckon I'm in on it.  That's it mate, they don't believe me."

   After complaining that he was unable to sleep, Mr Clancy began questioning the accused directly about whether he had taken a knife to the deceased's home on the occasion that he had previously gone there.

   "[Clancy]: Did you, did you have a knife on you?
   [Pavic]: That big.

   [Clancy]: Steve, fuck mate."

   After Mr Pavic admitted that he had killed the deceased, Mr Clancy continued with his questions as to why the accused had done it.  He returned to his own fears about the police suspicions directed at him.  Mr Clancy referred several times to police questioning concerning a bag of his clothes which he had left in the accused's car.  The bag had been found by police concealed in a hollow log close to an access trail near the place where the deceased's body was found.  It contained blood-stained towels in addition to the clothes belonging to Mr Clancy.  This resulted in the accused begging Mr Clancy not to "spill your guts".  Mr Clancy's questioning continued:

   "[Clancy]: What did you do, dump the body the next day?
   [Pavic]: The same day, same night.
   [Clancy]: All by yourself?

   [Pavic]: Yep."

   Not content with these statements, the friend went on to question Mr Pavic further eliciting the answer:

   "[Pavic]: I'll show them where I fucking got it from.  I'll show them exactly everything.  I'll just walk through it with them.  So Lou, you've got no problems.  When it comes to the crunch then, because nothing's going to happen to you Lou.  There isn't."

   Later Mr Clancy went on to ask questions about a vehicle but by this time Mr Pavic was becoming more cautious:

   "[Clancy]: ... What's your fucking, with the 4 wheel drive mate, is that just a bloody red herring they're looking for?
   [Pavic]: I can't sort of say that much about it Lou, fair dinkum.  Because you sort of know heaps already, and I can't sort of say anything else.  Because they're going to get it out of you, I can sort of tell.

   [Clancy]: Yeah, better off not saying anything mate."

   The conversation edged towards its close with a declaration by Mr Clancy that it was "[m]uch better being a kid ... when life was simple" which produced the somewhat optimistic invitation from his friend:

   "[Pavic]: Come on a holiday with me Lou."

6. After Mr Pavic departed and before the police arrived to terminate the tape, the record contains a telephone conversation between Mr Clancy and a friend named Ken.  Mr Clancy revealed that he was wired for recording and that the police were returning:

   "[Clancy]: Well they were going to put me in gaol at one stage.  Hey?  No.  No.  I don't know whether it was all threats and that, but it was just, I was a victim of bloody circumstances Ken.  That's all it was.  Yeah, yeah, I had to give them another one.  Because I didn't tell them everything with the last one, so.  Yeah, well it'll be very shortly I dare say.  Because what I was doing tonight was basically trying to prove you know, innocence if you see.  Because from where I was standing, I didn't care whether they were bluffing or what they were saying.  I wasn't going to the boob for anything I hadn't done."

7. Although in the foregoing passages of the recorded conversation there are a number of leading questions, plainly designed to get Mr Pavic to implicate himself in specific ways, it is arguable that the proper characterisation of what occurred is that the inculpatory parts of the conversation were not a functional interrogation.  It certainly came close to that at several points.  But I will assume that it did not infringe the first set of factors expressed in Broyles.  I can do this because, in my view, the second set of factors in Broyles is decisive.  In particular, the way in which the police, after the privilege of silence had been claimed, exploited the relationship between the two close friends in order to extract the statements from Mr Pavic which they needed.

8. These were not conversationalists who had the relationship of two prisoners in a common cell.  They were not new acquaintances engaging in conversation in a social setting.  They were close friends, one of whom had been led to believe that he was a suspect and who was motivated to prove his innocence by obtaining for the police as many inculpatory admissions from the other as repeated expressions of anxiety for his own situation could elicit.  The police did not remove the fears of Mr Clancy.  They sent him to conduct the recorded conversation, counting on those fears.  They relied, in the language of Broyles, on the relationship between the two men.  They would have anticipated that Mr Clancy, as their agent, would set out to exploit the special characteristics of his relationship with Mr Pavic so as to secure inculpatory statements from him.  They were not disappointed.  They relied on the association of trust between the two men.  Because of the protested fears of Mr Clancy, they could have expected that Mr Pavic, as a close friend, would feel obligated or vulnerable.  They were not disappointed.  The line of questioning which Mr Clancy pursued was clearly directed to bring about the situation where Mr Pavic would be more likely to talk.  By the tests in Broyles, these tactics crossed the forbidden line.  I would apply those tests here. 

9. I would take this course because, when the police arranged for Mr Clancy to act in this way, they knew that Mr Pavic had already exercised his legal entitlement to refuse to answer further police questions.  The course adopted was designed effectively to deprive Mr Pavic of that right.  Its purpose was to take away his right freely to choose whether to speak or to be silent in response to the serious accusation of complicity in a crime of which he was suspected.

10. The evidence of the conversation between Mr Pavic and Mr Clancy ought properly to have been excluded under the judicial discretion.  This would not mean that Mr Pavic would walk away from responsibility for the homicide.  He had offered to plead guilty to manslaughter.  But it would mean that the earlier police caution to him and his refusal to answer questions would be respected.  His right to require the Crown to prove its case, otherwise than from his admissions, would be safeguarded.  His right to speak in awareness that what he said might be used in court would be upheld and not circumvented.  The use of a person whom he trusted, and in relation to whose predicament he was vulnerable, would be discouraged.  Securing the conviction of Mr Pavic of murder was important.  But if such tactics become the common rule, the police caution and the right to speak or to be silent would be undermined and police would be encouraged to use family and close friends to circumvent the current law where that law proved an obstacle.  It has been a common feature of totalitarian societies that police and security forces enlist the aid of family and friends to inform on suspects, overriding the legal rights of the accused.  It has not until now been a feature of our society.

11. Mr Pavic's appeal should be allowed.  There should be a new trial in which the recorded confession is excluded from the evidence.

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

13. ConclusionsBoth statements by the accused were accepted as voluntary.  Each was reliable.  Each was certainly relevant and otherwise admissible.  They were not said to have been illegally or improperly obtained.  But they were obtained unfairly in derogation of a fundamental right belonging to the accused in each case.  Each accused had exercised that right, as his interrogators well knew.  To circumvent the free choice to speak or be silent, which the suspect had exercised in favour of silence, by use of an undercover police officer or a police agent, was not only productive of the risk of an unfair trial to the accused.  It was also, in my view, contrary to the public policy which protects the fundamental rights of suspects and holds police, their agents and other investigating officials in check when they are engaged in the questioning of suspects.  A conviction of each accused based on such evidence would have been purchased at too high a price. 

14. Legislation might permit police conduct of the kind disclosed in each of these appeals.  None has been enacted.  If it were, it would presumably introduce pre-conditions of prior independent authorisation.  It would lay down checks and limits to defend the kinds of values which have long been protected by the common law.  If it derogated from those values it would do so by the authority of Parliament.

    Orders

15. In the case of Mr Pavic, I propose the following orders:  Appeal allowed; set aside the order of the Court of Appeal of the Supreme Court of Victoria.  In lieu thereof, grant leave to appeal to that Court against conviction; allow the appeal; quash the conviction; and order that a new trial be had.  In the case of Mr Swaffield, the appeal should be dismissed.