R v Swaffield
[1996] QCA 236
•19/07/1996
| IN THE COURT OF APPEAL | [1996] QCA 236 |
| SUPREME COURT OF QUEENSLAND | C.A. No. 3 of 1996 |
| Brisbane | |
| Before | Fitzgerald P. Pincus J.A. Helman J. |
[R. v. Swaffield]
T H E Q U E E N
v.
JASON ROY SWAFFIELD Appellant
FITZGERALD P.
PINCUS J.A.
HELMAN J.
Judgment delivered 19/07/1996
SEPARATE REASONS FOR JUDGMENT OF FITZGERALD P. AND HELMAN J. CONCURRING AS TO THE ORDERS MADE; SEPARATE DISSENTING REASONS OF PINCUS J.A.
Appeal allowed and conviction for arson quashed.
A judgment and verdict of acquittal entered.
CATCHWORDS: | CONVICTION - arson - covert and surveillance operation squad - whether secretly tape recorded statements made by the appellant to police admissible - such evidence was the primary evidence implicating the appellant - whether trial judge failed to exercise his discretion to exclude the evidence of the conversation on the ground that the evidence was obtained unlawfully/improperly - ground of unfairness - Judges’ Rules - reliability of evidence recorded - whether such investigative techniques should be permitted - seriousness of the offence - right of silence - role of appellate court |
| Dansie v. Kelly, ex parte Dansie [1981] Qd.R. 1 Duke v. The Queen (1989) 180 C.L.R. 508 Foster v. The Queen (1993) 67 A.L.J.R. 550 R. v. Ali and Hussain [1966] 1 Q.B. 688 R. v. Azar (1991) 56 A.Crim.R. 414 R. v. Bailey and Smith (1993) Crim.L.R. 681 R. v. Barker (1994) 127 A.L.R. 280 R. v. Bryce (1992) 95 Cr.App.R. 320 R. v. Bunning and Cross (1978) 141 C.L.R. 54 R. v. Christou and Wright [1992] Q.B. 979 R. v. Davidson and Moyle (C.A. No. 511 of 1994, unreported, 8 September 1995) R. v. House (1936) 55 C.L.R. 499 R. v. Lee (1950) 82 C.L.R. 133 R. v. Mills and Rose (1962) 1 W.L.R. 1152 R. v. O’Neill (1995) 81 A.Crim.R. 458 R. v. Parkes (1976) 1 W.L.R. 1251 R. v. Pfennig (No. 1) (1992) 57 S.A.S.R. 507 R. v. Robinson (Supreme Court of Victoria, O’Bryan J., unreported ruling, 18 January 1995) R. v. Smurthwaite and Gill (1994) 98 Cr.App.R. 437 R. v. Stewart (1971) W.L.R. 907 R. v. Weissensteiner (1993) 178 C.L.R. 217 Ridgeway v. The Queen (1995) 69 A.L.J.R. 484 Stapleton v. R. (1952) 86 C.L.R. 358 Van der Meer v. The Queen (1988) 62 A.L.J.R. 656 | |
Counsel: | D. Lynch for the Appellant Ms L. Clare for the Crown |
| Solicitors: | Legal Aid Office for the Appellant Queensland Director of Public Prosecutions for the Crown |
| Date(s) of Hearing: | 27 February 1996 |
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 19/07/1996
The circumstances giving rise to this appeal are set out in the reasons for judgment of Helman J.
As his Honour has stated, my judgments in O’Neill (1995) 81 A.Crim.R. 458 and Davidson and Moyle (C.A. 511 of 1994, 8 September 1995) were dissents; further, the High Court refused special leave in O’Neill, although it does not follow that the High Court has endorsed the majority reasoning.[1] Nonetheless, O’Neill and Davidson and Moyle have the authority of judgments of this Court.
[1] See Attorney-General (Cth) v. Finch (No. 2) (1984) 155 C.L.R. 107, 115; Attorney-General (N.S.W.) v. Findlay (1976) 50 A.L.J.R. 637; R. v. Kingston [1986] 2 Qd.R. 114, 119-120; Stafford v. R. (1993) 67 A.L.J.R. 510; R. v. Brown [1995] 1 Qd.R. 287,290; R. v. Wood, Paterson, Brien and Peterson (C.A. Nos. 168, 171, 206, 210 and 226 of 1995, unreported, 11 June 1996)
However, in my opinion, neither O’Neill nor Davidson and Moyle is decisive of this case. My reasoning on those occasions would necessarily lead to the conclusion at which Helman J. has arrived, which is supported by the decisions of the English Court of Appeal to which he has referred.
Accordingly, I agree with his Honour’s conclusion and with the orders which he proposes.
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 19/07/1996
In two recent decisions of this Court a question has arisen whether the use by the police of an agent, instructed to hold conversations with a suspect, was improper; in each instance the police conduct was of course deceptive, and its purpose to obtain evidence. Further, it must have been clear to the police in each case that their agent had no intention of giving the suspect a warning or reminder of his or her right of silence; the whole point of the exercise was to obtain admissions from a suspect labouring under the misapprehension that he or she could talk freely, to a friend or acquaintance. The two decisions I have mentioned are O’Neill (1995) 81 A.Crim.R. 458, and Davidson and Moyle (C.A. No. 511 of 1994, 8 September 1995). In the former, admission of the relevant evidence was upheld and in the latter, its rejection was, in effect, disapproved.
The present is a somewhat similar case; at the hearing before this Court, at the suggestion of a member of the Court, counsel for the appellant pressed the argument that an incriminating conversation, surreptitiously recorded, should have been excluded by the primary judge in the exercise of discretion, as having been unfairly obtained. The circumstances in which it was obtained are set out in the judgment of Helman J. which I have had the advantage of reading; the main points are that the appellant had indicated determined unwillingness to talk to police and that he had previously been charged with the relevant offence, but the charge was dropped. But before entering upon the issues in detail it is desirable to make two initial points.
The first is that what is involved is an appeal against the exercise of a discretion. The general rules applicable to such appeals have been clear ever since House (1936) 55 C.L.R. 499; that was, of course, a criminal case. The question is not merely whether judges of this Court would, sitting at first instance, have taken a different view from that adopted below; it is whether the judge has acted upon a wrong principle, has allowed irrelevant matters to affect the result, misunderstood the facts, taken an irrelevant matter into account, or reached a result which is unreasonable or plainly unjust; see Van der Meer (1988) 62 A.L.J.R. 656 at 660G, per Mason C.J., a passage applied in Robinson (Court of Appeal, Victoria, 29 February 1996, p. 25). It is my opinion that although different minds might, as a result of this case shows, have reached a conclusion other than that adopted by the learned primary judge, it is not possible to characterise the decision attacked in any of the ways mentioned in House; for that reason, and others discussed below, I think the appeal should be dismissed.
The second point is that the sort of investigation which was undertaken here can produce one or both of two distinct advantages. First, it may, as it did here, provide evidence which is admitted and leads to the conviction of one who has been found to have committed a serious offence. Short of that, such investigative techniques may at least enable the police to identify, tentatively or positively, a person who has committed a serious offence; having done so, they can then presumably focus their efforts on looking for admissible evidence. I do not understand that use of such techniques for the second purpose is in question. At least I hope it is not; it is evident that, particularly where real considerations of public safety are involved - the serial murderer, or serial arsonist, or terrorist - the police should not be discouraged from using undercover agents, with whatever deception is necessary, to identify offenders. Obviously, such attempts would be futile if each suspect spoken to were given a warning about the right of silence which, it is submitted, should have been given here. The discussion in the present appeal may, however, (regrettably, in my view) produce the result that even in cases involving extremely serious offences trial judges will be discouraged from letting in deceptively obtained evidence. One reason for being concerned about this outcome is that advances in the technology available to criminals, and perhaps also in the organisation of criminal activity, have increased the risk that suppression of deceptive means of investigation by the police may facilitate the continuation of such criminal activity, with catastrophic results, examples of which are fortunately more common, at present, in overseas countries than here.
One should not, however, overlook the contention that if -
"Individuals have a fundamental right not to be convicted of an offence of which they are innocent, then this right should be more strongly protected, the more serious the offence" (A. Ashworth, [1996] Crim.L.R. at 223).
If accepted, this view leads to the consequence that the courts should not hold to be acceptable, in relation to offences of the greatest seriousness, investigative techniques which would not be permitted in relation to lesser offences; I return to this topic below.
Judges’ Rules
The critical point in the case is the absence of a caution; the question is whether the primary judge’s ruling in favour of letting in confessional evidence, obtained by a police undercover agent in a conversation in which the appellant was not cautioned, can stand. The practice of cautioning persons interviewed by police, in certain circumstances, has generally been regarded as flowing from the Judges’ Rules, originally made by a committee of English judges.
The first question is whether the Judges’ Rules are presently operative in Queensland and if so, what is their content. The 1930 Judges’ Rules were superseded in 1964 by Rules in very different terms; in Dansie v. Kelly, ex parte Dansie [1981] Qd.R. 1, it appears to have been assumed by the Full Court that the old Rules continued to operate.
In England, in 1984, the Judges’ Rules were superseded by Codes of Practice under the Police and Criminal Evidence Act 1984. It seems never to have been suggested that those Codes of Practice are operative in this country. If the Judges’ Rules have relevance here, which version of them is applicable?
In my respectful opinion the assumption made in Dansie v. Kelly should be accepted as correct: that is, that the version of the Rules in force prior to 1964 is that which should be applied. The reason is that the Queensland Police Service continues to use the original version: see cl. 2.14.7 of the Queensland Police Service Operational Procedures Manual. That is, in this State a particular version of the Rules has been adopted and it is that domestic version which should be used: see Lee (1950) 82 C.L.R. 133 at 142.
This conclusion makes irrelevant consideration of the 1964 version of the English Rules, or the Codes of Practice which under the 1984 legislation supplanted the Judges’ Rules in that country. The version of the Judges’ Rules operative in Queensland is conveniently called the 1930 version; it includes part but not all of the explanations included in the Home Office Circular of that year. The only relevant rule for present purposes is R. 2:
"When 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".
According to the transcript of submissions below, it appears that it was not that Rule but R. 3 which was relied on below; that rule is not relevant to the present situation, but it seems likely from the discussion which took place that the reference intended was to R. 2 which I have quoted. It was not, however, suggested that the officer in question had made up his mind to charge the appellant; the contention appears to have been that since the appellant had previously been charged, the rule applied, so to speak, by analogy.
Caution
We were referred to no recent decision in which a confession was excluded merely on the ground of absence of a caution. An argument on those lines would face decisions such as Stapleton (1952) 86 C.L.R. 358. That was a case where the appellant was arrested on a charge of murder and taken to a police station, where a sergeant questioned him about the killing, without any caution. The High Court remarked as to that:
"It was said that the learned judge should have excluded the evidence given by Sergeant Manion that what the appellant said in answer to his question when the appellant was brought to the police station after his arrest. As has already been said, although the accused was under arrest on a charge of murder, no warning was given before the questions were put. The answers were not, however, inadmissible at common law as involuntary. True it is that Sergeant Manion was a person in authority within the meaning of that rule. That there was no pressure or insistence, no fear of prejudice raised or hope of advantage held out, no inducement raising a presumption against the voluntariness of the prisoner’s statements. Counsel for the appellant did not contend to the contrary. What he maintained was that in the exercise of the judge’s discretion he ought to have excluded the evidence. . . . We think that in the circumstances of the case it was within the discretion of the Judge at the trial to admit the evidence and that it is no ground for a new trial that he did so". (375, 376)
After quoting part of this passage Gleeson C.J., in the New South Wales Court of Criminal Appeal, remarked in Azar (1991) 56 A.Crim.R. 414 at 420:
"There are numerous statements in the law reports to the effect that a
confessional statement to a police officer is not inadmissible merely because no
caution has been administered. It is hardly likely that those statements wereintended to apply only in the case of an accused person who knows of his right to
silence even without a caution".
What is it, then, about the present case which makes the absence of a caution so significant as to require this Court to take the unusual step of disagreeing with the primary judge on a matter which was, prima facie, one for the exercise of his Honour’s discretion, not that of this Court? The critical point, as it seems to me, must be the charge which had been dropped; I can see no other possible justification for reversing the primary judge’s ruling. It cannot be held that the facts that the police used deceptive means by arranging for a person, pretending to be a friend or acquaintance, to attempt to induce incriminating statements justify allowance of the appeal; those circumstances were present in both O’Neill and in Davidson and Moyle; unless this Court has to take the unfortunate course of letting the outcome of questions of this sort depend on the identity of the judges who happen to be listed to hear an appeal, it seems to me plain those decisions must be followed. In particular, I should have thought that the reasoning of the majority rather than that of the dissentient judge should guide our deliberations. The question, then, is whether what was said in O’Neill and in Davidson and Moyle with regard to the obtaining of confessional evidence by such deception as is in issue here should be held inapplicable if the suspect has been charged and the charge dropped. Neither the argument below nor that in this Court made clear why that should make a critical difference; perhaps it was thought that the maxim nemo bis vexari debet might apply. In my view the real significance of the dropped charge is that it establishes that the police not only suspected, but believed, that the appellant was guilty of the offences in question. The principle must be that deceptive tactics such as the use of persons (either police or civilian) instructed to take part in deceptions of this sort to obtain confessional evidence is permissible only against suspects, not in relation to those whom the police "know" - i.e. positively believe - to be guilty. What would have been permissible to the undercover agent if crime were only suspected becomes, on this view, impermissible when it is known to have occurred.
To illustrate this by example, suppose an undercover agent actually observes the commission of an offence, such as supplying heroin. The agent knows that the offence has been committed, but can he or she properly seek to obtain solider evidence by engaging in a conversation which, it is hoped, will produce an electronically recorded incriminating statement? The argument in the negative obtains some support from the line of reasoning of Mason C.J. in Van der Meer (1988) 62 A.L.J.R. 656 at 661.
"The common law balances (a) the need to allow the police freedom of action in the investigation of crime in order to ascertain the wrongdoer and (b) the need to ensure that a suspect is fairly treated and his right to silence protected. This balance is achieved by permitting the police to conduct a general inquiry into an unsolved crime until the stage is reached when the accusatory stage begins."
Once one accepts the proposition (which follows from the two Court of Appeal decisions I have mentioned, as well as from that of the Full Court of the Federal Court in Barker (1994) 127 A.L.R. 280) that the police may in appropriate circumstances properly use an agent to obtain by deception incriminating statements which could not otherwise have been obtained, it is difficult to see why the deception becomes less or more excusable if the target is a person believed to have committed, rather than being merely suspected of committing, an offence.
I cannot accept that the circumstance that the police, apparently in error, proceeded at an earlier stage on the assumption that they could prove a case against the appellant should be held to enhance his right to have excluded what otherwise would have been incriminating evidence. But, if I am wrong about that, and if Judges’ Rule 2 should be regarded as applicable, at least in principle if not literally, one returns to the position which appears to me to be the appellant’s principal difficulty; the Rule is not one of law, but merely gives rise to a discretion which has been exercised against the appellant, that being the usual fate of objections based simply on breach of the Judges’ Rules: see "An Examination of the Judges’ Rules in Australia" by G L Teh, 46 A.L.J.R. 489 at 507.
Seriousness of Offence
Some of the reasoning in Davidson and Moyle relied upon the seriousness of the offence as bearing upon the question whether or not to admit confessional statements induced by deception. In the present case, counsel for the appellant who confessed, rightly in my opinion, to finding difficulty in distinguishing the earlier decisions of the Court, did not place emphasis upon this aspect, but some mention should be made of it. I have suggested that one would expect police, acting sensibly and properly, to use as much deception as is necessary to identify the perpetrators of offences which truly involve the public safety; the serial killer is a simple example. I would not find that course distasteful, but would find the prospect of police feeling inhibited in using deception to establish the identity of such an offender a matter for concern. In deciding whether to admit or reject evidence obtained in such circumstances, the Court would be entitled to take into account the requirement of public policy that it is desirable that the wrongdoer be brought to conviction: Bunning and Cross (1978) 141 C.L.R. 54 at 74. In that case Stephen and Aickin JJ. appeared to recognise the place of deceptive methods in crime detection, without reference to the seriousness of the offences investigated:
"The relevance of the competing policy considerations to which we have referred becomes of a especial importance in an age of sophisticated crime and crime detection when law enforcement increasingly depends upon electronic surveillance and eavesdropping, the unannounced search of premises or of the person and upon scientific methods . . . In many such cases the question of fairness does not play any part. ‘Fair’ or ‘unfair’ is largely meaningless when considering fingerprint evidence obtained by force or a trick or even the evidence of possession of, say, explosives or weapons obtained by an unlawful search of body or baggage, aided by electronic scanners. There is no initial presumption that the State by its law enforcement agencies, will in the use of such measures of crime detection observe some given code of good sportsmanship or chivalry. It is not fair play that is called in question in such cases, but rather society’s right to insist that those who enforce the law themselves respect it . . . "
But it is unnecessary to determine whether what was decided in O’Neill and Davidson and Moyle is applicable to offences of less seriousness than that with which we are presently concerned. Here, the offence of which, according to the views which I understand other members of the Court hold, the appellant was wrongfully convicted, was serious enough; hundreds of thousands of dollars worth of damage was done by a fire, started in the course of opening a safe in the premises by the use of oxy propane cutting equipment. The offence is one which attracts a sentence of life imprisonment and the sentence imposed was one of eight years imprisonment. We should not hold that the discretion exercised below miscarried on the ground that his Honour was wrong to apply the principles to be found in O’Neill and in Davidson and Moyle to an offence of this degree of heinousness.
The English Position
I understand that the other members of the Court are of opinion that the judge’s ruling is shown to be incorrect by a line of English authority, analysed in the reasons of Helman J. Having read the cases to which his Honour refers, I have formed the respectful opinion that they do not lay down any principle which was infringed by the ruling in the present case. Let it be assumed in favour of the appellant that this is a case in which a requirement of the Judges’ Rules to give a caution was "evaded" by using an undercover agent. Precisely the same position pertained in Davidson and Moyle and in O’Neill. It does not appear to me, with respect, that the English authorities to which reference has been made are of any substantial assistance in determining whether the exercise of the judge’s discretion miscarried.
A more pertinent line of authority, if one is to look for solutions to our current problems, as of old, in the wisdom of English judges, is the following. The decisions I shall mention deal with the admissibility of incriminating conversations, occurring otherwise than in the course of police interrogation, secretly recorded by the police. The trend of these cases appears to me distinctly favourable to the Crown’s contention here. I shall discuss them briefly, in chronological order. In Mills and Rose (1962) 1 W.L.R. 1152, the appellants were placed in cells in a police station. A tape-recorder placed in a nearby empty cell recorded incriminating conversations between them, evidence of which was given by a policeman who heard the conversations and checked the accuracy of his recollection by using the tape. Winn J., who delivered the judgment of the Court of Criminal Appeal dismissing the appeals, denied that the police had been guilty of sharp practice in the use of a tape-recorder. In Ali and Hussain [1966] 1 Q.B. 688, the two appellants were asked to come to a police station in the course of investigation of a murder; they complied. The two were left alone and an incriminating conversation was recorded by means of a concealed tape-recorder; that was held to be admissible. Marshall J., giving the judgment of the English Court of Criminal Appeal, remarked:
"There was no question here of [the appellants] being in custody and subject to any Judge’s Rules. The criminal does not act according to Queensberry Rules. The method of the informer and of the eavesdropper is commonly used in the detection of crime".
The matter was taken rather further in Stewart (1971) W.L.R. 907. There, again, there was an incriminating conversation between two people, who had at the time (unlike the appellants in Ali and Hussain) been charged with offences. The conversation, evidence of which was held to have been properly admitted, included discussion of dishonest evidence which the defendants proposed to put before the court. The case is authority for the view that a secretly recorded conversation between defendants in custody may be admitted; the recording was done by a policeman, pretending to be a prisoner occupying a neighbouring cell. Then in Keeton (1970) 54 Cr.App.Rep. 267, a policeman gave a man who was in custody permission to phone his wife; while the conversation was going on the policeman listened in surreptitiously at the switchboard; the conversation was admitted against the person who had been in custody.
A rather different point was involved in Parkes (1976) 1 W.L.R. 1251. There, in a murder case, it appeared that the victim’s mother had accused the appellant of committed the offence, but no reply was made. The Privy Council held that the jury were entitled to take into account, among other things, the appellant’s reaction to the accusation I have mentioned. Lord Diplock for the Board remarked:
"In the instant case there was no question of an accusation being made by or in the presence of a police officer or any other person in authority or charged with the investigation of the crime . . . Here Mrs Graham and the appellant were speaking on even terms".
The reasoning is the same as that of Dowsett J. in O’Neill; see (1995) 81 A.Crim.R. 458 at 553.
In Shaukat Ali, noted in (1993) Crim.L.R. 681 at 683, conversations between the defendant and members of his family were secretly tape-recorded in an interview room at the police station after he had been charged; it was held that the conversations were properly admitted against the defendant. In Bailey and Smith (1993) Crim.L.R. 681, again, covert tape- recording of conversations between defendants was admitted despite the following circumstances:
1. The defendants had been arrested.
2. They had exercised their right to silence at interview.
3. The defendants were placed in the same cell at the instance of the investigating officers, but in a successful attempt to deceive the defendants they were told that, although the investigating officers did not wish them to, they had to occupy the same cell.
The comment on Bailey and Smith, at 684 suggests, as to the discretion to reject evidence voluntarily produced "if the method of inducement was unfair", that "reported instances of its application in favour of the accused are rare".
Although issues other than the discretion to exclude unfairly obtained evidence were raised in these cases, each of them involved the propriety of an exercise of that discretion; that is the question in issue here. If incriminating statements obtained by secretly recording the conversations of persons who have actually been charged and who have refused to discuss the allegations made against them with the police may be admitted, I am unable to see any logical reason why the conversations in issue in the present case must have been excluded. The only significant differences I can see between the present circumstances and those which were proved in, for example, Bailey and Smith are that firstly, although in both cases charges had been laid, in the present case a charge had been laid but dropped. Secondly, whereas in Bailey and Smith the deception by which it was hoped that incriminating statements would be obtained did not involve introducing an undercover police officer into the plan, here it did. I cannot see that the first of these two differences particularly favours the present appellant. As to the second, the point is much the same as whether it is proper to distinguish the decisions of this Court in O’Neill and in Davidson and Moyle. The principal factual difference between those cases and the present is that there the police, instead of sending one of their own to discuss the matter as to which they desired to obtained admissions, used a lay person.
The Right of Silence
The present case may be viewed, in its result, as a strong reaffirmation of the possibility that adverse consequences, for the prosecution and perhaps for the community, may ensue from failure to remind an offender of his right not to admit his offence. To say that there is a right of silence is not to define the characteristics of the right: for example, whether the person who insists on the right may be more harshly treated by the courts, on that account, than one otherwise identically placed who co-operates with the police; whether one who insists on putting the Crown to proof, making no admissions, may be more harshly treated than the offender who pleads guilty; whether the jury may in any circumstances use against an accused the fact that he has given no explanation of incriminating circumstances. But these issues are being worked out and the answers recently given seem in my view to be generally restrictive of the right: as to the first two topics, see the Penalties and Sentences Act 1992, s. 9(2)(i) and s. 13, and as to the latter, Weissensteiner (1993) 178 C.L.R. 217. Since April 1995 the disadvantages of maintaining silence have been enhanced by statute in the United Kingdom: see the Criminal Justice and Public Order Act 1994, ss. 34, 35, 36, 37 and the Criminal Procedure and Investigations Act 1996. I have seen the latter legislation only in summary bill form, but it appears that the two Acts taken together go a long distance towards destruction of the principle, so far as England is concerned, that silence, or failure to put forward explanations, by a person faced with accusations of criminal conduct, cannot damage the accused at trial. The provisions I have mentioned take this tendency much further than the High Court’s decision in Weissensteiner. This prompts the thought that in both countries it may have become rather misleading to tell a suspect only that he is under no obligation to talk to the police; that may be literally correct, but insofar as it implies that the law will in no sense disadvantage him for refusal to speak, it is not the whole truth.
It is necessary to reiterate that this case is concerned in essence only with police deception, inducing a suspect to discuss his or her part in an offence under the misapprehension that the person being spoken to is a sympathetic acquaintance; that was so here, as in the two recent decisions of this Court in O’Neill and in Davidson and Moyle. The same situation pertained in Barker, with the important difference that the police conduct there involved a breach of statute. Quite different considerations arise where confessions are obtained by conduct involving bullying interrogation, undue pressure, implied threats, or other circumstances of that sort.
Conclusion
The police investigative technique which is here being held absolutely to require, on the grounds of impropriety, that the resulting incriminating statement be excluded is in essentials indistinguishable from that used in the three appellate decisions just referred to - with the difference that in one of those the police conduct was positively illegal. No other point taken has, in my opinion, any real substance and in particular the suggestion that the jury should not have been permitted to determine for themselves whether or not the appellant’s confession was
reliable should be rejected. I would dismiss the appeal.
REASONS FOR JUDGMENT - HELMAN J.
Judgment delivered 19 July 1996
On 7 December 1995 in the Rockhampton District Court a jury found the appellant guilty on three counts. In Count 1 it was alleged that on a date unknown between 5 and 8 March 1993 at Rockhampton, Queensland, he broke and entered a place, namely the workshop of Metal Recyclers (Qld) Pty Ltd, and therein stole one oxygen bottle, one gas bottle, and cutting equipment the property of the said Metal Recyclers (Qld) Pty Ltd. Count 2 was that on or about 7 March 1993 at Rockhampton, Queensland, he broke and entered a place, namely the rowing club of the Leichhardt Rowing Club Limited, with intent to commit an indictable offence therein. Count 3 was an allegation of arson: that on or about 7 March 1993 at Rockhampton, Queensland, he wilfully and unlawfully set fire to a building, namely the clubhouse of the Leichhardt Rowing Club Limited. On 8 December 1995 the learned trial judge sentenced the appellant to imprisonment on each count: for two years on each of Counts 1 and 2 and for three years on Count 3. His Honour directed that the imprisonment for each sentence was to start from the end of a period of imprisonment for eight years which had been imposed on the appellant on 1 March 1995.
The appellant has appealed to this Court against his conviction of arson on the ground that his Honour erred in admitting into evidence tape-recorded conversations between him and Constable Jacob Marshall, an undercover police officer. I should add that it is not clear to me why, in the light of the arguments advanced to us, he has confined his appeal to Count 3.
The Crown case was that the appellant committed the offences with others, that cutting equipment stolen from the commercial premises referred to in Count 1 had been used in the clubhouse to open a safe, that nothing of value was taken from the safe but the clubhouse was set on fire causing damage valued at more than $400,000. In relation to Counts 1 and 2 the Crown relied on s.7 of the Criminal Code and in relation to Count 3 on s.8.
The main evidence the Crown called to establish that the appellant was a party to the offences was the evidence of secretly tape-recorded statements made to Constable Marshall who in 1994 was attached to the Covert and Surveillance Operations Squad. In that year Constable Marshall met, and associated with, the accused when the former was conducting an undercover operation in Rockhampton not related to the charges before the District Court. The accused was then unaware that Constable Marshall was a police officer. On 11 and 16 August 1994 Constable Marshall had conversations with the appellant in which the subject of the arson alleged against him was discussed. The Crown asserted - and the jury evidently accepted, as it was open to them to do - that admissions of complicity were made by the appellant.
On each occasion Constable Marshall introduced the subject. In the first conversation he falsely told the appellant that his - i.e., the constable's - brother-in-law was in trouble, having been charged with burning a car. His Honour summarized and commented on the evidence as to the alleged admissions in his summing-up as follows:
Now, what are the passages upon which the Crown relies? In the first of the two conversations after the agent instigated the topic he asked the accused, "Fucking 450, what did you fucking do, fucking set fire to the bank or something?", and the accused said, "Leichhardt Rowing Club." So, how should you interpret that statement by him? He said, "What did you fucking do, fucking set fire to the bank or something?", and the answer "Leichhardt Rowing Club." Then a bit later he was asked, "Did you do it?", and he said, "You're innocent until fucking proven guilty.", and then he went on and said, "Oh, they knew it was us."
Now , let's just pause there. What is conveyed by the words "They knew it was us."? Was the accused saying, "The police wrongly believed it was us.", or is there an implied acceptance by him that, "It was us.", coupled with a statement that, "The police knew it was us. Oh, they knew it was us. They just could not prove it." So, is there an implied acceptance of guilt in saying, "They knew it was us."?
Now, a little later he said that they didn't make a statement to the police and then a little later the accused was asked, "What, you didn't mean to set fire to it though?", and his answer was "I was involved in it but I didn't set fire to it." Well, is that an admission that he was involved in it coupled with a denial that he was not the one who set fire to the clubhouse? Then he went on to say, "Safe job, it was a safe job." So, is there in that an admission that he was involved in it coupled with a denial that he was the one who set fire to it and then followed up by the statement that it was a safe job? Do those statements correspond with the evidence as far as they disclose what went on in the clubhouse that night?
Then he was asked, "You must have fucked up when you cut it.", and he said "Don't know, I was blind. I didn't know about it until the next night on the news." Well, what is he saying when he says, "I don't know, I was blind."? Is he saying he was there but was so affected by alcohol he didn't know exactly what happened? If you put all those together you have him saying, "Oh, they knew it was us, they just couldn't prove it. I was involved in it but I didn't set fire to it. It was a safe job,", and the statement that he didn't know how it started because he was blind.
Then he said immediately after that, about the events that followed the offence presumably, "I was fucking shitting myself cause I didn't know" - something - "stay around do the bolt or what." Then almost immediately after that he said the police repossessed his car for examination or to look at it. He said, "Before they done that I had to fucking change my tyres, fucking put sand all over my boot and carpet vacuumed out." Well, what is he saying there, that he took measures to ensure that nothing would be found connecting it with the offence? Then there were the passages where he said "Apparently we carried them" - he said, "Apparently we carried full size set of oxy bottles from one side of town to the other.", and he said that again, "Apparently we carried them over there.", etc. He was asked, "You wouldn't have done that, would ya?" He said, "Oh, I don't know."
Then in the second conversation, towards the end of that, something like this was said - the accused said, "See, I wasn't taking the rap for it anyway because fucking I didn't burn the place." He said, "I didn't burn the place. I admit I had something to do with it but fucking" - and there are other words spoken around about that time that are not transcribed in the transcript, but listening to the tape you may be able to identify them. Then he was asked, "Well, why did they charge you for it if you didn't torch it?" He answered, "It doesn't matter, as long as you are there and fucking" - something else that's difficult or impossible to understand.
So, those are the statements on which the prosecution case is based. So, it is for you to interpret those conversations and say whether he is in those conversations admitting his involvement in any of these offences.
The only other evidence capable of implicating the accused in the offences was evidence that he owned a motor car similar in colour and make to one seen near the clubhouse at the relevant time. On 16 March 1993 the police officers investigating the arson and the other two offences spoke to the appellant about them, and his car was taken for examination. On 19 July 1993 he was again spoken to by police officers. On 22 July 1993 he supplied blood samples to them, and on 7 September 1993 he supplied further samples and was charged. The samples supplied by the appellant were found not to match traces of human tissue found at the place referred to in Count 1. The police brief of evidence for the committal hearing was delivered to the appellant's solicitor but on the day appointed for the committal, 13 November 1993, no evidence was offered against him and the appellant was discharged. On each occasion when the police officers spoke to the appellant he declined to be formally interviewed about the offences.
The undercover police operation in which Constable Marshall took part began in the Yeppoon-Rockhampton region in May 1994. The accused was one of the targets of the operation, which was aimed at the detection of drug suppliers in the region. In July 1994 the police officer responsible for the investigation of the arson offence, seeing the possibility of obtaining evidence against the appellant concerning it, passed on his brief of evidence to Constable Marshall's controller who then, it seems, passed it on to Constable Marshall.
The appellant's counsel argued before his Honour that the evidence of the alleged admissions should be excluded "since the obtaining of the statements involved deceptive conduct on the part of the police aimed at avoiding the operation of the Judges' Rules and depriving the accused of the right to silence". It was not suggested either before the learned trial judge or before this court that the statements made by the appellant were other than voluntary. The argument proceeded on the basis that any admissions had been made voluntarily and were therefore admissible but that the circumstances in which they were made called for their exclusion in the exercise of his Honour's discretion. His Honour decided that the evidence was admissible, and cogent in the sense that without the evidence there would not be sufficient evidence to sustain the charges against the appellant. His Honour took the view that it was an important circumstance that the relationship between the undercover police officer and the appellant was "essentially criminal in nature", the appellant being a drug supplier or otherwise concerned with illegal drugs and the police officer posing as a purchaser of illegal drugs. It was in the course of that "essentially criminal relationship", his Honour said, that the appellant chose to disclose his connexion with the offences. His Honour's conclusion was:
I do not think that in the circumstances of this case it is unfair to admit such disclosures into evidence. The undercover police officer was not acting illegally, although his role as an undercover agent involved deception of the accused. If, in addition, it is appropriate to take into account the reliability of the evidence, then in this case that would provide an additional basis for the reception of it.
It was submitted to us that his Honour erred in failing to exercise his discretion to exclude the evidence of the conversations, and that the following matters necessarily rendered reception of the evidence unfair to the appellant:
(a)The appellant had twice previously declined to be interviewed by police officers about
the offences;
(b)The appellant had been charged with the offences and then seen the charges withdrawn
before the Magistrates Court;
(c)The undercover police officer then deliberately set about attempting to obtain
admissions from the appellant as to his involvement in the offences;
(d) To that end the police officer deliberately deceived the appellant; and
(e)While it was conceded that the alleged admissions were reliably recorded, "potentially"
they were unreliable because:
(i)The statements were made in response to the police officer's raising the topic of a fictitious arson case - i.e., the appellant did not initiate the conversations;
(ii)The statements were made in the context of a criminal relationship involving the unlawful supply of dangerous drugs, and in that context there was potential for the admissions to be no more than "boastful exaggerations made in order to impress a criminal associate";
(iii)No independent evidence confirming the reliability of the statements was
available; and
(iv)The statements were equivocal involving no direct admission of the appellant's having committed the arson and included denials of having started the fire and claims that the appellant did not find out about it until the next day.
It is settled that evidence of a voluntary confession may be excluded in the exercise of a judge's discretion where the reception of the evidence would be unfair to the accused (see McDermott v. The King (1948) 76 C.L.R. 501 at pp. 513-515, and R. v. Lee (1950) 82 C.L.R. 133 at pp. 148-155), and where the confession was unlawfully or improperly obtained and should be excluded on public policy grounds (see R. v. Ireland (1970) 126 C.L.R. 321 at pp.334-335, Bunning v. Cross (1978) 141 C.L.R. 54 at pp.74-80, and Ridgeway v. The Queen (1995) 69 A.L.J.R. 484 at pp. 489, 492-493). The foci of the discretions are different, but the discretions do overlap (Foster v. The Queen (1993) 67 A.L.J.R. 550, at p.554). The onus of establishing a proper basis for excluding the evidence lies on the accused (R. v. Lee at pp. 152-153).
The appellant relies on the ground of unfairness, although at the root of the submissions made on his behalf is an allegation of impropriety. The Judges' Rules, though not rules of law, may be regarded in a general way as prescribing a standard of propriety (R. v. Lee at p.154). Since Constable Marshall did not caution the appellant, Rule 2 is of particular relevance to this case.
Our courts accept, as a necessary if distasteful investigatory technique, the use of deception. In Ridgeway v. The Queen Mason C.J., Deane and Dawson JJ. said: "The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence." (p.493). This case raises then the question how far police investigators may go in practising a deception upon a suspect, particularly where that suspect has made it clear that he or she does not wish to be interviewed by police officers.
In two cases which came before this court last year, the question whether deception in obtaining evidence of admissions could be regarded as unfair or improper was considered. They were R. v. O'Neill (1995) 81 A.Crim.R. 458 and R. v. Davidson and Moyle, ex parte The Attorney- General (C.A. no. 511 of 1994, 8 September 1995, unreported). Those cases differed from this one in that the admissions were not made to police officers but to people enlisted by police officers for the purpose of obtaining the evidence. There were, however, references to the position of undercover police officers.
In R. v. O'Neill, a nurse convicted of attempting to murder her husband by injecting him with insulin while he slept had made admissions to a friend and workmate, Lynne Lally. Ms Lally told police officers about the admissions, and at their instigation a second conversation took place in which the admissions were repeated and secretly tape-recorded by Ms Lally. The evidence of the second conversation was put before the jury by tendering the tapes and by calling Ms Lally to give oral evidence. O'Neill appealed against her conviction and the primary submission made on her behalf was that the reception of the evidence of the recorded conversation was unfair as Ms Lally was essentially an unidentified police agent and at the time of the conversation the police officers had sufficient evidence to justify their charging O'Neill. It was submitted that the police officers could not themselves have interviewed O'Neill without warning her - as required by the Judges' Rules - and that they should not have done so indirectly by using Ms Lally as their agent. There were other issues in the case but they are not relevant to the question in this case. Pincus J.A. and Dowsett J., Fitzgerald P. dissenting, held that the learned trial judge had not erred in admitting the evidence of the tape-recorded conversation. Pincus J.A. referred to the use of a police officer acting as an undercover agent to obtain evidence of the commission of a serious offence. He asked:
If, having obtained such evidence in a chance, unrecorded, conversation the officer (as was done with Ms Lally here) so arranges matters that an incriminating conversation is then recorded, how are the interests of justice hurt? (p.548)
His Honour discussed three principal categories of Crown evidence: direct accounts of the
commission of the offence, confessional evidence, and circumstantial evidence and concluded:
Compared with the other varieties of evidence likely to be available in seriously contested
cases, recorded confessional evidence appears to be generally of a high degree of reliability; allegations of such possible malpractices as tampering with the recording or of inducing the confession by unrecorded threats are very unusual. In these circumstances I would not be prepared to hold, absent a statement by the High Court to that effect, that police conduct of the kind attacked here is unfair. In my opinion what the police did in relation to Ms Lally was fair and proper. (p.549)
Dowsett J. observed that the true purpose of the caution required by the Judges' Rules is to inform a suspect of his or her right to silence when he or she might otherwise feel obliged to answer questions because police officer and suspect are not on equal terms - the officer being perceived to be in a position of authority. It could not be said that because the friend was acting covertly on behalf of the police officers there was inequality in the relationship between her and O'Neill which might suggest to O'Neill that she was under an obligation to speak. His Honour concluded:
No question of involuntariness or unfairness arose from the fact that the appellant was not warned. The police are not obliged to be absolutely frank in investigating crime. Indeed, the law providing for the use of listening devices is statutory authority to the contrary. Although we might all prefer that friendship not be exploited for ulterior purposes, the public interest in protecting and punishing crime outweighs social nicety. This ground of appeal is without substance. (p.553)
Dowsett J. referred to a number of cases cited in argument including R. v. Pfennig (No. 1) (1992) 57
S.A.S.R. 507 and observed:
These cases all involve statements while in custody. It may well be inappropriate for the
police to exploit the vulnerability of a person in that position. It may also be inappropriate, where a suspect is at large and has indicated that he does not wish to answer questions, to try to undermine his stated intention to exercise his right to silence, especially if he has, to the knowledge of the police, consulted a lawyer. These elements were not present in the instant case. In my view, use of subterfuge is not itself a basis for exclusion of evidence thereby obtained. (p.554)
(On 15 March 1996 the High Court refused an application for special leave to appeal
in R. v. O'Neill.)
In R. v. Davidson and Moyle, the court's opinion on matters of law that arose at the trial of the accused who were charged with the murder of Deborah Nellis were sought on a reference by the Attorney-General under s.669A(2) of the Criminal Code. Tape-recorded admissions made by both Davidson and Moyle were excluded by the learned trial judge in the exercise of her discretion on the ground that they had been obtained unfairly. As a consequence of her Honour's ruling the Crown elected not to proceed and the accused were discharged.
When Davidson and Moyle were interviewed by police officers about the murder, Davidson made no admissions that he was a party to it although he admitted to being present, and Moyle at first denied any knowledge of the matter. When Moyle was further interviewed she admitted being present at a gravesite and pawning the deceased's charm bracelet. Prior to being interviewed by the police officers, Davidson had spoken to a man called Jason Don about the death of the deceased and, also prior to the interviews, the police officers had learnt of the conversation with Don. By arrangement with the police officers after they had interviewed Davidson, Don went to Western Australia and spoke to Davidson who was then in custody in relation to other matters. Davidson made admissions of killing Nellis to Don. Those admissions were secretly recorded. Later Don, again by arrangement with police officers, met Moyle and secretly recorded a conversation with her. She made some admissions, although they were vague. Don had a further conversation with Davidson, this time in the presence of Moyle, in the prison and further admissions were made. Later Davidson was interviewed again by the police officers. He initially adhered to his original story but when the recording of his admissions to Don was played to him he confessed. Moyle when interviewed by the police officers on the same day admitted that she had not told the truth and asserted that Davidson had told her what to say and that her memory was poor. She admitted being present when the body was put in the grave and that the deceased was not then dead. The evidence of the admissions recorded by Don and those which followed from them which were made to the police officers were all excluded in the exercise of her Honour's discretion. Pincus and Davies JJ.A., Fitzgerald P. dissenting, held that the learned trial judge's discretion to exclude the evidence on the basis of unfairness in relation to either or both of the accused had not been enlivened in respect of any of the admissions made after Don went to speak to Davidson at the instigation of the police officers.
Pincus J.A. held that, at least where the crime is murder or an offence of comparable seriousness, techniques of the kind used to find out what Davidson and Moyle had to do with the disappearance of Ms Nellis could not be regarded as unfair or improper. His Honour also referred to the position of an undercover policeman:
Although Don is not a policeman, during the hearing of this matter reference was made to the position of undercover police; similar problems arise with respect to their use in criminal investigative work. If the decision in the present case is right, then an undercover police officer who happens on confessional evidence of an unsolved murder would, it seems, be acting improperly if he or she returned to the suspect equipped to record a conversation in order to obtain reliable evidence. As to that, not only the public interest, but the interest of accused persons in not being wrongly convicted, is enhanced by encouraging the recording of such confessions. Rather than giving the jury the difficult task of determining the genuineness of evidence of an unrecorded confession.
Davies J.A. agreed with Pincus J.A. that the conduct of the police officers was not improper, and he drew attention to the distinction between the considerations relevant to determining whether there had been improper conduct and those relevant to the exercise of the discretion to exclude evidence obtained in consequence of the impropriety. He referred to the importance of the question of the reliability of a confession obtained by improper means to the decision as to whether it should be excluded:
There are dicta which state, or at least imply, that, in order to exclude voluntary confessional evidence on the ground that its admission would be unfair to the accused the improper conduct must have caused the statement to be unreliable: Cleland v. The Queen (1982) 151 C.L.R. 1 at 36; Van der Meer v. The Queen (1988) 62 A.L.J.R. 656 at 666 column 1D. However there are dicta which would not limit the ambit of the discretion in this way: Duke v. The Queen (1989) 180 C.L.R. 508 at 510-511, 524. Whether or not the ambit of the discretion is so limited there is no doubt that, in determining whether admissibility of confessional evidence would be fair to an accused person, its reliability and the effect which the improper conduct may have had on that reliability are generally very important considerations: for if a judge thought that the relevant impropriety was not likely to result in an untrue confession being made that would be a good reason, thought not a conclusive one, for allowing the evidence to be given: The King v. Lee (1950) 82 C.L.R. 133 at 153. And, as pointed out in the case, a substantial reason must be shown to justify a discretionary rejection of a voluntary admission: at 154. The law was therefore, in my view, correctly stated as Pincus J.A. in R. v. Davis (C.A. No. 319 of 1991, 18 December 1982, unreported), in reasons with which the Chief Justice agreed when he said that:
". . . the better view appears to be that ordinarily, but by no means always, the confession should be let in unless the circumstances which brought it forth were such as to make it an unreliable piece of evidence."
The actions of the investigating police officers in this case went well beyond those of the officers in R.v. O'Neill and R. v. Davidson and Moyle. In those cases informers to whom admissions had been made before the intervention of the police officers co-operated with the police officers in obtaining further reliable evidence of the admissions and it has been accepted that that is a proper step for investigating police officers to take. In R. v. O'Neill and R. v. Davidson and Moyle the deception went no further than leading the accused to believe that they were engaged in chance private conversations with people they knew whereas they were really trapped into making recorded admissions in the course of planned conversations intended to be used in evidence. In this case, however, there were the added circumstances that the apparently private conversations were in reality interrogations by a police officer, and that the interrogations were carried out after the appellant had made it clear that he did not wish to answer questions about the matter, had retained a solicitor, and had been charged with the offence.
In dicta in a number of cases there is support for the conclusion that what was done here calls for exclusion of the evidence on the ground of unfairness. I have already quoted some words of Dowsett J. in R. v. O'Neill. In R. v. Pfennig the accused was charged with the murder of a boy, Michael Black. Cox J. excluded evidence of admissions obtained after police officers had set a trap for the accused by enlisting the aid of an inmate of a remand centre where the accused was held to gain the confidence of the accused and to engage him in conversation. The accused had previously indicated to the police officers that he did not wish to answer questions about the Black matter. The Crown prosecutor argued that the overtures of the inmate, Rose-Royal, involved no inducement or threat or illegality and also that there was nothing improper about one prisoner's giving evidence of a conversation he had had with another. She argued further that some of the accused's alleged statements were volunteered. His Honour said:
I do not think these considerations do anything to save the evidence. The police set a trap for the accused of an impermissible kind. Any volunteered statements were interspersed with Rose-Royal's questions and suggestions and deceptions. It is as though the police, faced with a plain refusal to answer, sent in an undercover police officer in disguise to interrogate the accused or otherwise inveigle him into making admissions. Anything said in response to such a stratagem in the circumstances described would have to be ruled inadmissible, and the result here must be the same. (p.514)
In R. v. Christou and Wright [1992] Q.B. 979 the Court of Appeal was concerned with evidence obtained in the course of an undercover police operation in London in which a shop was set up purportedly to buy and sell jewellery commercially. It was staffed by undercover police officers, who used the names Gary and Aggi, posing as disreputable jewellers willing to buy stolen property. On behalf of the accused the admissibility of mechanically recorded evidence of statements made to the police officers in the course of the undercover operation was unsuccessfully challenged on the grounds that it should be excluded as unfair either at common law or under s.78 of the Police and Criminal Evidence Act 1984 or as being contrary to para.10.1 of Code C of the Codes of Practice (1985 ed.). The Police and Criminal Evidence Act 1984 s.78 was as follows:
(1) In any proceedings the court may refuse to allow evidence on which the prosecution propose to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
Lord Taylor of Gosforth C.J. read the judgment of court, which concluded that the Code was not intended to apply to conversations of the kind which took place in the shop. His Lordship however added the following words:
In reaching that conclusion, we should ourselves administer a caution. It would be wrong for police officers to adopt or use an undercover pose or disguise to enable themselves to ask questions about an offence uninhibited by the requirements of the Code and with the effect of circumventing it.
Were they to do so, it would be open to the judge to exclude the questions and answers under s.78 of the Act of 1984. It is therefore necessary here to see whether the questioning by Gary and Aggi was such as to require the judge in his discretion to exclude the conversation. The judge carefully reviewed the evidence on this issue. He concluded that the questions and comments from Gary and Aggi were for the most part simply those necessary to conduct the bartering and maintain their cover. They were not questions "about the offence." The only exception was the questioning about which areas should be avoided in reselling the goods. However, even that was partly to maintain cover since it was the sort of questioning to be expected from a shady jeweller.
We are of the view that the judge's approach to the aspect of the case concerned with the Code cannot be faulted. (p.991)
In R. v. Bryce (1992) 95 Cr.App.R. 320 Bryce was convicted of handling stolen goods. He appealed against his conviction and the appeal was allowed and the conviction quashed because, the Court of Appeal held, evidence had been wrongly admitted against him. Among the evidence that should have been rejected was evidence of admissions made to an undercover police officer in the course of conversations which were not mechanically recorded. It was submitted on Bryce's behalf that the evidence of the conversations should have been excluded because the police officer, who had adopted the name Pearson, asked questions that were in the nature of interrogation. They deprived the appellant, it was further submitted, of his right not to incriminate himself by answering questions which, had they been put by a police officer acting overtly as such, would have required a caution under the relevant code. In particular Bryce's counsel, Mr Thomas, pointed to two questions which went to the heart of the issue of dishonesty. Pearson said he had asked a person the Crown alleged was Bryce on the telephone, "How warm is it?" (referring to a motor car), and the person had replied, "It is a couple of days old". Later, in a conversation which the Crown alleged took place at the Smithfield Market Pearson said to Bryce, "How long has it been nicked?" and Bryce replied, "Two to three days". Bryce gave evidence in which he denied that it was he who had spoken to Pearson on the telephone and denied the alleged conversation at Smithfield.
Lord Taylor read the judgment of the Court of Appeal. Dealing with the evidence I have
mentioned he said:
Those questions went to the heart of the vital issue of dishonesty. They were not even
necessary to the undercover operation, which was designed to provide evidence of the appellant in possession of a recently stolen car offering it for sale at a knock-down price. Moreover the second question simply invited the appellant to repeat his answer to the first in more specifically incriminating terms.
On the voire dire "Pearson" was asked in cross-examination what he would have done had the appellant said the car was not stolen. He replied (p.9 of the transcript):
"If he had said: `It is not stolen,' I would have asked other questions, Sir. What are you doing selling a motor car like that? What is wrong with it? Is it an import? Has it come from abroad?"
In our judgment, that series of questions by an undercover officer would clearly offend against the caveat this Court stated in Christou and Wright. It would blatantly have been an interrogation with the effect, if not the design, of using an undercover pose to circumvent the code.
The two questions of which Mr Thomas makes strongest complaint, did not go as far as that. They were single, isolated questions in separate conversations. There was no extended interrogation. However, they did go directly to the critical issue of guilty knowledge. Moreover they were hotly disputed and there was no contemporary record. In Christou and Wright there were questions from the undercover officers as to the area where it would be unwise to resell the goods, the answers being obliquely an indication that the goods had been or may have been stolen from that area to the knowledge or belief of the suspect. However, in that case the whole interview was recorded both on tape and film. The circumstances to be considered by the learned judge in that case in deciding whether the admission of the evidence would have an adverse effect on the fairness of the trial and how adverse, were therefore quite different from those in the present case. The film and sound record eliminated any question of concoction. Not so here. The questions asked were direct, not oblique, the conversation was challenged and the appellant had no means of showing by a neutral, reliable record, what was or was not said. For those reasons we consider that the learned judge erred here in admitting those answers. (p.325)
The questions asked by Constable Marshall were of the type suggested by "Pearson" in cross-
examination.
Giving the reasons of the Court of Appeal in R. v. Smurthwaite and Gill (1994) 98 Cr.App.R. 437 Lord Taylor referred to the discretion to exclude evidence obtained by an undercover police officer:
In exercising his discretion whether to admit the evidence of an undercover office, some, but not an exhaustive list, of the factors that the judge may take into account are as follows: Was the officer acting as an agent provocateur in the sense that he was enticing the defendant to commit an offence he would not otherwise have committed? What was the nature of any entrapment? Does the evidence consist of admissions to a completed offence, or does it consist of the actual commission of an offence? How active or passive was the officer's role in obtaining the evidence? Is there an unassailable record of what occurred, or is it strongly corroborated? In Christou and Wright (1992) 95 Cr.App.R 264, [1992] 1 Q.B. 979, this Court held that discussions between suspects and undercover officers, not overtly acting as police officers, were not within the ambit of the Codes under the 1984 Act. However officers should not use their undercover pose to question suspects so as to circumvent the Code. In Bryce (1992) 95 Cr.App.R. 320, [1992] 4 All E.R. 567, the Court held that the undercover officer had done just that. Accordingly, a further consideration for the judge in deciding whether to admit an undercover officer's evidence, is whether he has abused his role to ask questions which ought properly to have been asked as a police officer and in accordance with the Codes.
Beyond mentioning the considerations set out above, it is not possible to give more general guidance as to how a judge should exercise his discretion under section 78 in this field, since each case must be determined on its own facts. (See Samuel (1988) 87 Cr.App.R. 232, [1988] Q.B. 615, 245, Parris (1989) 89 Cr.App.R. 68, 72 and Jelen and Katz (1990) 90 Cr.App.R. 456, 465, and other cases cited in Archbold (1993) at paragraph 15.364). (pp.440-441)
Mrs Clare on behalf of the Crown submitted that the question of fairness should be judged from the perspective of the appellant at the time of the conversation. His Honour the learned trial judge approached the matter in that way when he referred to the nature of the relationship between the appellant and Constable Marshall as it appeared to the appellant when the conversations took place. It will also be recalled that Dowsett J. in R. v. O'Neill referred to the true purpose of the caution. If the true purpose of the caution is to restore balance to an interrogation by one perceived to be in a position of authority by one who is not, and since that perception could not have existed at the time of the conversations there could be no need for the caution and no unfairness, so the argument goes.
If Mrs Clare's proposition were to be accepted then in all cases 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. I cannot accept that such a procedure could be regarded as anything other than unfair while the Judges' Rules or their derivatives remain a part of our system of criminal justice. To approve of, or to turn a blind eye to, their circumvention by a crude evasion would undermine the authority of the Rules, and thus an accused person's right to silence, to an unacceptable extent.
It is evident that in the case of the appellant the police investigation of the fire had passed beyond a general inquiry into the accusatory stage referred to by Mason C.J. in Van Der Meer v. The Queen (1988) 62 A.L.J.R. 656 at p.661. There can be no doubt that the Judges' Rules required that if the appellant were to be interrogated by a police officer he should have been cautioned. While the mere fact that the Judges' Rules have not been complied with will not always conclude the matter of unfairness (see R. v. Lee at p.154), in this case it appears to me that the conclusion that the reception of the evidence was unfair is inescapable for the reasons I have given.
The question of the reliability of the evidence has arisen in two ways. His Honour regarded the fact that the conversations had been reliably recorded as providing an additional basis for the reception of the evidence. On behalf of the appellant on the other hand it was argued that the alleged admissions were "potentially" unreliable and should for that reason have been excluded. I do not think there is any substance in the latter argument. None of the particulars given would lead me to that conclusion: (i) appears to me to have no relevance to the question of reliability, (ii) is speculation, and, like each of (iii) and (iv), would be a matter for the jury to consider but not be a proper basis to exclude the evidence. If the reliability of the evidence had been the only consideration for the judge in deciding whether to exclude the evidence because of unfairness, I should have concluded that his Honour's discretion had not miscarried. But, as Davies J.A. pointed out in R. v. Davidson and Moyle, reliability may not be the only consideration — and in this case it is overshadowed by the other considerations I have mentioned.
In Duke v. The Queen (1989) 180 C.L.R. 508, Brennan J., commenting on Dawson J.'s restriction (in Cleland v. The Queen (1982) 151 C.L.R. 1 at p.36) of the exercise of the "unfairness" discretion to cases where impropriety or unlawfulness in the manner of obtaining a confession is productive of unreliability in the confession, said:
His Honour regarded the policy of discouraging improper or illegal methods of interrogation as the object of the discretion arising on an application of Bunning v. Cross and, on that account, not to be the object of the unfairness discretion. Although it is right to say that fairness to the accused in the reception of evidence is the object of the unfairness discretion and the Bunning v. Cross discretion is directed to insisting that those who enforce the law should themselves respect it it is, in my respectful opinion, too confined a view to regard the unfairness discretion as applicable only to those cases where unreliability in the confession might have been produced by impropriety or unlawfulness on the part of the investigating police. 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 proceeding 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. (p.513)
In Duke v. The Queen Toohey J. shared Brennan J.'s wider formulation of the test:
The discretion recognized in McDermott v. The King and R. v. Lee is a discretion which a
trial judge has to rule a voluntary confession inadmissible when to admit it would be unfair to the accused. In Cleland, Dawson J. expressed the test as whether "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". The notion of unfairness underlies the discretion to reject a confession made voluntarily. At the same time, while 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. (pp.526 - 527)
In Foster v. The Queen it was held that evidence of a confession which had been made by the appellant following his being unlawfully arrested and while he was unlawfully held in custody in a police station had been wrongly admitted. Mason C.J., and Deane, Dawson, Toohey, and Gaudron JJ. held that having regard to the nature and effects of the infringement of the appellant's rights by police officers and other circumstances and considerations to which their Honours referred, it was plain that the case was one in which a proper exercise of the learned trial judge's discretion required the exclusion of the evidence of the confessional statement (p.557). Although among the other circumstances and considerations referred to by their Honours was the possible unreliability of the confession (see p.555), it is clear that the serious and reckless conduct of the police officers, the fact that the unlawful arrest and detention of the appellant had been for the purpose of questioning him in an environment from which he had no opportunity of withdrawing, and the fact that there was a real question as to whether any admissions by the appellant were voluntary in the sense of being made "in the exercise of free choice to speak or to be silent" weighed heavily in favour of exclusion of the evidence (pp.555-556). Foster v. The Queen is therefore authority for the proposition that while the possible unreliability of a confession is an important matter to be taken into account in deciding how the "unfairness" discretion should be exercised, it is by no means the sole consideration. With respect to his Honour I conclude that in this case he 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.
The conclusion I have reached would not apply, of course, to a case in which an undercover police officer happens on confessional evidence - a circumstance referred to by Pincus J.A. in R. v. Davidson and Moyle in a passage I have quoted. That is what happened in R. v. Robinson (Supreme Court of Victoria, O'Bryan J., unreported ruling 18 January 1995). Robinson was charged with the murder of Roger Purvis. Robinson was released on bail pending his trial and was suspected of conspiring to murder the deceased's wife. An undercover police officer using the name Mick Taylor was brought into the investigation and later met Robinson pretending to be someone who might assist Robinson in murdering Mrs Purvis. In the course of a tape-recorded conversation concerning Mrs Purvis and, as O'Bryan J. found, "quite unexpectedly", Robinson made admissions about the murder of Mr Purvis. Robinson initiated the discussion about the murder of Mr Purvis and was neither pressured, nor intimidated by Taylor in any way to do so. His Honour found that the admissions made by Robinson to Taylor were "damning and provide relevant and cogent evidence of Robinson's guilt of murder". It was conceded by the police officer in charge of investigating the murder of Mr Purvis that if any evidence concerning that murder came along in the course of the undercover operation, it would not be neglected. Although the primary purpose of the undercover operation was to investigate the conspiracy to murder Mrs Purvis, his Honour found that there had been no unfairness or impropriety in the way in which the evidence of the admissions concerning the death of Mr Purvis was obtained. I should add that there was an unsuccessful appeal against Robinson's conviction but on points other than the one I am discussing.
The case of an accused person who volunteers admissions to an undercover police officer is in a quite different category from the case of admissions obtained as a result of a deliberate trap set for an accused for the purpose of circumventing the Judges' Rules. I therefore think with respect that O'Bryan J's ruling in R. v. Robinson is consistent with the conclusion that I have reached in this case. O'Bryan J. clearly thought that the fact that Robinson had initiated the discussion about the murder of Mr Purvis was an important consideration. In giving his conclusion his Honour said:
In my opinion, the meeting took place in fair circumstances. Robinson met Taylor on equal terms and no pressure or intimidation was applied by Taylor to make Robinson speak about the murder of Robert Purvis. Robinson initiated discussion about the murder with which he was charged and voluntarily made incriminatory admissions. Mr Dane [Robinson's counsel] did not argue that the police used unlawful methods to obtain admissions. His argument centred on unfairness in the manner of obtaining the admissions. I reject the argument and conclude that in all the circumstances the evidence was fairly obtained.
I think then, with respect, that his Honour erred in failing to exclude the evidence of the admissions in the exercise of his discretion. Mrs Clare conceded that there was no scope for the application of the proviso to s.668E(1) of the Criminal Code. I therefore think the appellant's appeal against his conviction of arson should be allowed. Because the impugned evidence was the only evidence of substance against the appellant this is not a case in which a new trial should be ordered, so the orders of this Court should be that the appeal be allowed and the conviction on Count 3 quashed. It should be directed that a judgment and verdict of acquittal be entered.
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