R v Tofilau - [2003] VSC 188

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1440 of 2002

THE QUEEN

ALIPAPA TOFILAU

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15-16, 19-22 MAY 2003
DATE OF RULING:	6 JUNE 2003
CASE MAY BE CITED AS:	R v ALIPAPA TOFILAU
MEDIUM NEUTRAL CITATION:	[2003] VSC 188	2^nd Revision – 13 September 2004

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CONFESSIONS AND ADMISSIONS – Admissibility of confession obtained by undercover police operation – Voluntariness – Whether undercover operatives “person in authority” – Basal involuntariness – Reliability - Unfairness discretion – Public policy discretion.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Rapke QC with Ms S Pullen	Office of Public Prosecutions
For the Accused	Mr I Hayden	Legal Aid Victoria

HIS HONOUR:
This revised version of the ruling is currently the subject of a suppression order made by Osborn J on 7 September 2004, to operate until 31 December 2005 or further order. For the names of undercover police operatives, the initials “P” and “M” have been substituted.

In this matter I am required to rule as to whether confessional statements made by the accused are admissible in evidence and if so whether they should nevertheless be excluded in the exercise of the Court's discretion.

On 29 June 1999 the body of Belinda Romeo was found in the bedroom of her flat in Punt Road, Prahran. It was apparent that she had been strangled but initial investigations failed to establish who was responsible.

The accused had had a sexual relationship with the deceased commencing in March 1999 and continuing up until shortly before her death. He had slept at her flat on a number of occasions. In a statement made to police on 14 July 1999 he stated that he last saw the deceased on the morning of Sunday 20 June 1999 at approximately 2.00 a.m. at the "Bridge Club". He said the deceased asked him home to her unit but that he refused as he was drinking with friends. He believed she left at approximately 4.00 a.m. The accused said he asked the deceased what she was doing later on Sunday to which she replied not to come over as she was having a friend over for dinner and to come the next night. The accused said he remained at or in the vicinity of the Bridge Club until approximately 9.00 a.m. on Sunday prior to leaving with friends and travelling to Footscray to attend a party. He said that he left the party at approximately 6.00 p.m. that night and travelled to a friend's place in Collingwood. He then walked home to Carlton after leaving Collingwood at about 9.00 or 10.00 p.m. and slept until 7.00 a.m. the next morning. He said that he attempted to ring the deceased when he got home but the telephone was not answered. He said that the last time he was in the deceased's flat was on Saturday 19 June 1999.

On 29 July 1999 the accused was interviewed at length at the Homicide Squad offices. The interview was conducted with the assistance of an interpreter and extended over some four hours including substantial breaks. Initially the accused was taken through his prior statement and corrected it in a number of details before confirming it. At the outset it was made clear to him that he was not obliged to answer questions. He confirmed his understanding of this through the interpreter. In the course of the interview he was generally co-operative but gave some unresponsive answers to a limited number of questions.

A discrete question which arises as potentially relevant to the arguments as to the exercise of discretion in this case, is whether and if so in what sense, the accused exercised a right to silence. In Petty v R[1] Mason CJ, Deane, Toohey and McHugh JJ stated:

"A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the role which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless."

[1](1991) 173 CLR 95 at 99

It is clear that unlike a number of cases in which undercover operatives have subsequently been employed to make covert tape recordings of confessional statements, the accused here did not make a "no comment" interview. Rather he responded to almost all the questions asked of him. There is some selective refusal to answer questions but this forms part of an interview as a whole to which a jury could have regard. In Weissensteiner v R[2] Brennan and Toohey JJ stated:

"The mere refusal by a suspect to answer police questions relating to the commission of an offence or to advance an innocent explanation of the circumstances which throw suspicion upon him affords no basis for an inference of his guilt. If the suspect does not exercise his right of silence but chooses to respond selectively to questions asked or allegations made, his conduct (including his refusal to respond to particular questions or allegations) is evidence to which the jury may have regard and from which, according to the circumstances, an inference may be drawn that he has a consciousness of guilt." (Emphasis added, citations omitted).

[2](1993) 178 CLR 217 at 231

Furthermore when the “no answer” answers are considered (which I have set out in Appendix A) the following conclusions can be drawn:

(a) they were each made without the assistance of the interpreter;
(b)some answers appear to signify a failure to understand the question (e.g. answer 529);
(c)some answers appear to signify that the defendant does not know the answer (e.g. answers 551, 552, 553);
(d)some answers appear to signify disagreement (e.g. answers 561 and 568); but
(e)nevertheless some may be understood as true "no answer" responses representing an exercise of the right of silence (e.g. answers 525 and 527);
(f)the true "no answer" responses do not readily define a particular area of non-response;
(g)the true "no answer" responses are so limited as not to detract from the fact that the substantial character of the accused's answers is responsive; and
(h)the interview did not conclude with a refusal to say anything further to police.

Mr Hayden, who appeared for the accused, accepted that the view might be taken that the accused had not declined to talk to police but submitted that this should not be regarded as demonstrating a continuing willingness to talk to police, particularly when there was no follow-up thereafter for a number of years.[3]
[3]Transcript p.6

In any event the outcome of the July 1999 interview was that, although the accused was a suspect, particularly because he had apparently prevaricated as to his movements on the morning of 20 June 1999, nevertheless he had made no admissions of involvement in the killing and there was insufficient evidence to charge him. In these circumstances and after further investigations proved fruitless, investigating police requested the assistance of undercover police operatives. Because of a shortage of resources these operatives were unable to give their attention to the case until late 2001.

In December 2001 an undercover operation was mounted during which operatives posed as members of a criminal gang. An initial approach was made to the accused by an operative named P who sought to establish a relationship of friendship with the accused. The accused was then introduced to purported members of the gang at the Grand Prix and was told that a corrupt drug squad officer, with whom the gang had a connection, was present at that meeting. He was given the impression the gang handled large sums of money. He was offered a possible position with the gang. He was told he would be the subject of checks. He was told he could not join the gang until he was cleared by the boss of the gang. He was told the superiors in the gang could "fix" things with the police. Thereafter the accused was introduced to a series of purported gang activities in which he willingly participated. These included the collection of moneys from brothels and a robbery. The accused was led to believe that $10,000 had been placed in a safe deposit box as his share of the proceeds of the robbery and that this would be paid to him when he was accepted into the gang. During the course of the role playing involved in the scenarios through which he was taken, the accused was told that it was necessary for a relationship of trust, loyalty and honesty to be established between gang members. He was told it was necessary for him to tell the head of the gang of anything that might bring "heat" from the police upon the gang. The accused himself mentioned to operatives posing as gang members that he had had trouble with the police in relation to the death of the girl but asserted that that trouble was over. He was told on a number of occasions that the head of the gang was in a position to fix things with the police if necessary.

In March 2002 police caused a notice to be served on the accused foreshadowing an application to the Magistrates' Court for permission to take a sample from the accused for the purposes of DNA analysis. The accused had declined to give a blood sample for such purposes at the time of his 1999 interview. It was intended by the undercover operatives that the service of this notice would trigger further statements by the accused about the death of the deceased. The notice acted as a trigger in three ways. First, it demonstrated the investigation was active. Second, it indicated the accused was a suspect and the police might have evidence against him. Third, it demonstrated the accused had been less than frank in previous discussions with gang members including operative P whom he had befriended, because he had stated that he had previously given a DNA sample to the police. When he received the notice the accused contacted P and they arranged to meet.

P then confronted the accused on 17 March 2002. Prior to this undercover operatives had not engaged in more than "passive interview" with the accused, including “natural prompting”. P actively encouraged the accused to tell the truth about the death of the deceased. Mr Hayden characterised such encouragement as "exhortations" and "harangue". I accept both these terms. It is also to be observed that in the course of the exhortations P put to the accused that he did not believe what the accused had previously told him and that he believed the accused had killed the girl. Because the exhortations made by P are critical to the argument put on behalf of the accused I will set them out in Appendix B (in which I shall refer to P as "P" and the accused as "A").

Thereafter the accused admitted to P that he killed the deceased by strangling her with something she had round her neck.

P did not actively question him as to the circumstances but in accordance with the logic of the scenario by which the accused had been persuaded the accused was then taken to M, the purported head of the gang to whom he made a full and circumstantial confession. Consistently with his role, M told the accused that he needed to know all the relevant details if he was to be able to fix things with the police. He in effect interrogated the accused as to such details and the accused responded describing the circumstances of the killing and the circumstances in which he left the deceased's body and disposed of the scarf used to strangle her. This confession included direct admissions that he strangled the deceased with a scarf and that she struggled while he strangled her. Further, that he strangled her deliberately and went so far as to remove the telephone connection from the wall before he strangled her, replacing it after he had done so.

The following preliminary matters are to be observed concerning the confessional statements:

(a)Although the statements made on 17 March were made consecutively to different undercover operatives, the culmination of the process of investigation involved a single operation as a whole. The accused was effectively persuaded by P to ultimately give a full and frank account of the killing to M.[4]
[4]cf R v Carter (2000) 1 VR 175 at 190
(b)Although the accused was exhorted and harangued he was also clearly given the chance to walk away and say nothing. Thus shortly after the interview with M commenced M said:
"Do you understand that Ali? Like you don't have to, you don't have to say anything to us, okay. It's your, it's up to you, okay. You can, you can get up and walk out now. But I can't help you if you walk out can I, okay. But we can help you, we can make this go away but you'll have to tell me everything that happened so that I make sure that we cover all the bases. That we make sure that there's nothing that the police can come and trip you up on; because if they come to you that means they go to P, that means they come to me and I don't want that. You happy with that?";

(c)The accused was completely deceived as to the identity of those to whom he was speaking and the roles they were playing;
(d)The scenario with which he was ultimately presented was deliberately calculated to encourage him to tell the truth as to his involvement in the death of the deceased. Such a scenario can be distinguished from one calculated to produce a confession of murder;
(e)The scenario was backed with a primary inducement namely the proposition that the head of the gang had the capacity to fix things with the police;
(f)The scenario was reinforced with collateral inducements which offered the accused the prospect of financial gain both immediately if he were admitted to the gang and on an ongoing basis;
(g)The confessional statements were made in circumstances where the accused implicitly trusted members of the gang who took him to the head of the gang and in which the accused both trusted and accepted the authority of the head of the gang as someone having it materially within his power to benefit the accused.

The discussion between P and the accused on 17 March 2002 was audio taped and the subsequent discussion between M and the accused was video taped.

Confessional Statements

The principles governing the question of the admissibility of the taped conversations are elaborated in the decision of the Court of Appeal in the matter of R v Miroslav Juric[5]. The leading authority is the decision of the High Court in R v Swaffield and Pavic[6]. As the Court of Appeal states:

"In Swaffield and Pavic the High Court considered two separate cases involving the question whether confessional statements voluntarily made to a witness who, unbeknown to the accused was a police officer, or acting on behalf of the police, should be admitted into evidence. Toohey, Gaudron and Gummow JJ in a joint judgment, and Kirby J separately, held that the admissibility of confessional material turns first on the question of voluntariness, next on exclusion based on considerations of reliability, and finally on an overall discretion taking account of all the circumstances (including the means by which any admission was elicited and whether unfair forensic advantage may be occasioned by admission of the evidence) to determine whether the evidence was admitted or a conviction obtained at an unacceptable price having regard to contemporary community standards. Brennan CJ said that the conduct of law enforcement officers should be considered under the public policy discretion except where that conduct makes the reliability of a confession dubious, in which case the unfairness discretion can be invoked."[7]

[5][2002] 4 VR 411

[6](1997) 192 CLR 159

[7]Juric [2002] 4 VR 411 at 439

If there is anything to suggest that the confessional statements may not have been voluntary, the onus lies on the prosecution to show on the balance of probabilities that they were. Conversely, the onus lies on the accused to persuade the trial judge on the balance of probabilities whether the admission of evidence of confessional statements would be unfair to the accused or of other facts justifying the exercise of the discretion to reject. [8]
[8]See Cleland v R (1982) 151 CLR 1 per Deane J at 19 and the authorities there referred to.

Voluntariness

As Brennan CJ stated in R v Swaffield the law relating to involuntary confessions is founded in a concern as to their reliability.

"In Sinclair v The King[9] 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."[10]

[9](1946) 73 CLR 316 at 334

[10](1997) 192 CLR 159 at 167

In Sinclair, Dixon J quoted the speech of Lord Sumner in Ibrahim v R[11]:

"[T]he rule which excludes evidence or 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'. 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."[12] (citations omitted)

[11][1914] AC 599 at 610-611

[12](1946) 73 CLR 316 at 335

Likewise in Cleland v R Dawson J stated:

"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 R v Mansfield: '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'." [13]

[13](1982) 151 CLR 1 at 27

The rationale for the exclusion of confessional statements that are not voluntary may now be understood to be based both on reliability and the overbearing of the maker's will. As Deane J said in Cleland:

"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 …"[14]

[14]Ibid at 18 and see Brennan CJ in R v Swaffield at 169

In McDermott v R[15] Dixon J made clear the conceptual framework of the basal notion of involuntariness and the exemplification of that notion in the specific rule in respect of confessional statements made following the holding out of inducements by a person in authority.

"At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his 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: per Cave J R v Thompson [1893] 2 QB 12 at 17. The expression ‘person in authority’ includes officers of police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority: Ibrahim v R [1914] AC 599 at 609-610; R v Voisin [1918] 1 KB 531 at 537-538. That is the classical ground for the rejection of confessions and looms largest in a consideration of the subject … The extreme applications which were made at one time of the principle that confessions obtained by the use by persons in authority of hope or fear were inadmissible gave this head of inducement an importance which has tended to obscure other forms of inducement. It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man’s will."

[15](1948) 76 CLR 501 at 511-12

The judgment of Dixon J was expressly endorsed by the Full High Court in R v Lee[16]. In Lee the Court stated:

"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."

[16](1950) 82 CLR 133 at 144

It follows that the question of whether a confession was preceded by an inducement held out by a person in authority may of itself determine the question of voluntariness, but on the other hand it may leave unresolved the basal question identified by Dixon J in McDermott of whether the confession was in fact voluntary. Nevertheless because of the "definite rule" that the law regards confessional statements which follow upon an inducement held out by a person in authority as so inherently unreliable as to be presumed involuntary[17], it is convenient to consider firstly whether the present case is one of confessional statements made following inducements held out by a person or persons in authority and if not then secondly to consider the basal question of involuntariness.
[17]per Dixon J SinclairvR (1946) 73 CLR 316 at 334

Persons in Authority

The facts in this case give rise to the question whether a confessional statement will be regarded as "preceded by an inducement held out by a person in authority" if the maker of the statement neither knew or believed that the person holding out the inducement was a "person in authority".

In my opinion the holding out contemplated must be one which cloaks the inducement with authority. It is the inducement of hope or the inspiration of fear where the effect of authority is a factor which underlies the specific rule relating to such statements. In the present case one of the principal inducements relied upon by counsel for the accused was the holding out of the ability to "fix" trouble with the police. It can be seen that such a holding out must generally if not inevitably have a different character if done by a person whom the accused knows or believes to be a person in authority.

The purpose of the rule was considered by Wood J in R v Dixon[18]. In that case the accused was induced to make a confessional statement by an Aboriginal liaison officer whom the accused believed to be a person in authority. After a full and careful examination of the case law Wood J stated:

"As a matter of principle, it seems to me proper to have regard to the impression conveyed by the person offering the inducement. There is support for this in the authorities reviewed and it reflects the purpose behind both the common law and s.410, to exclude confessions obtained under influence, or as the result of threat or offer of favour. Unless the inducement comes from a person supposed by the accused to have capacity to carry it into effect, it would be unlikely to elicit a confession that would otherwise be withheld. I would accordingly hold that a person in authority includes any person concerned in the arrest, detention or examination of the accused, or who has an interest in respect of the offence, or who otherwise is seen by the accused by virtue of his position, as capable of influencing the course of the prosecution, or the manner in which he is treated in respect of it."[19] (emphasis added)

[18](1992) 28 NSWLR 215

[19]Ibid at 229

In the present case the inducements did not come from persons supposed by the accused to have some capacity by reason of authority to carry them into effect.

The purpose of the rule was also considered by the Privy Council in Deokinanan v R[20]. In that case the appellant confessed to a trusted friend in a prison waiting room that he had hidden money taken from a murder victim. The friend promised to help recover the money intending to tell the police of any further information the appellant might give him. Thereafter, the friend was placed by police in a lock-up cell with the appellant and the appellant confessed to the murder. The Privy Council held first that the evidence established that the confession was not induced by any promise of advantage held out to the appellant and was free and voluntary in the relevant sense. It expressed the further view that even if a promise by the friend had induced the confession the friend "was not and could not in their Lordships' opinion have been regarded by the appellant as a person in authority."[21] The opinion concluded with a statement which reinforces the fundamental concern with the reliability of the confession which underlies the rule:

"The fact that an inducement is made by a person in authority may make it more likely to operate on the accused's mind and lead him to confess. If the ground on which confessions induced by promises held out by persons in authority are held to be inadmissible is that they may not be true, then it may be that there is a similar risk that in some circumstances the confession may not be true if induced by a promise held out by a person not in authority, for instance if such a person offers a bribe in return for a confession.
There is, however, in their Lordships' opinion, no doubt that the law as it is at present only excludes confessions induced by promises when those promises are made by persons in authority."[22]

[20](1969) 1 AC 20

[21]Ibid at 30

[22]Ibid at 33

In expressing its opinion the Privy Council referred with approval to a Manitoban decision R v Todd[23]. In that case the accused was induced to confess by two detectives who represented to him that they were members of an organised gang of criminals. They offered to take Todd into the gang if he could satisfy them that he had committed some serious crime and they represented to him that substantial profits might be expected if he became a member of the gang. There are thus parallels with the present case save that the detectives in Todd were not in fact permanent members of the police force but were specially employed by it for the purposes of the operation. Bain J stated:

"A person in authority means, generally speaking, anyone who has authority or control over the accused or over the proceedings or the prosecution against him. And the reason that it is a rule of law that confessions made as the result of inducements held out by persons in authority are inadmissible is clearly this, that the authority that the accused knows such persons to possess may well be supposed in the majority of instances both to animate his hopes of favour on the one hand and on the other to inspire him with awe, and so in some degree to overcome the powers of his mind … Now it is expressly stated in the case that when the prisoner made the admission he was without notice or knowledge of any facts that could constitute either of the two men persons in authority; and, this being so, it could not be contended that as to the prisoner they were persons in authority; and cessante ratione, cessat lex[24]."[25]

[23]R v Todd (1901) 4 CCC 514

[24]“The reason for the law ceasing, the law ceases”

[25]R v Todd (1901) 4 CCC 514 at 526-7

In the present case the accused was without notice or knowledge of facts that could "constitute" the undercover operatives to whom he made admissions "persons in authority". In my opinion the rationale for the presumptive rule relating to persons in authority is correctly stated by Bain J and does not apply in these circumstances. The undercover operatives in the present case were not known or believed to be persons in authority by the accused and such inducements as they offered were not cloaked with authority.

Subsequent decisions of the Canadian courts have confirmed the principle stated in Todd that knowledge of or subjective belief by the accused as to the authority of a person offering an inducement is a critical element in determining whether the holding out of an inducement is to be regarded as a holding out by a person in authority. In Rothman v R[26] the Supreme Court of Canada confirmed the application of a subjective test. In that case the accused was arrested on a charge of possession of narcotics for the purposes of trafficking. He was placed in a cell at the police station and an undercover police officer purporting to be a fisherman was introduced into the cell. In the course of the subsequent conversation the undercover police officer told the accused that people in a particular area were interested in getting drugs and that he himself would be interested in getting drugs, but no drug deal with in fact set up. Nevertheless the conversation resulted in confessional statements by the accused. Martland J, with whom the majority concurred, approved the judgment of Jessup JA in the Court of Appeal:

"In my opinion the police officer in the present case was not a person in authority because he was not regarded as such by the respondent."[27]

[26](1981) 59 CCC (2d) 30

[27]Ibid at 36

Evidence was given in the present case that the undercover scenario methodology adopted was in fact borrowed from Canadian police practice. The Canadian cases include some dramatic examples of undercover trickery which have not been regarded as rendering confessions involuntary. In R v Unger[28] the Manitoba Court of Appeal (in respect of whose decision leave to appeal to the Supreme Court of Canada was refused on 2 December 1993) accepted confessional statements obtained in the following circumstances. The accused and another were charged with the murder of a young woman. Most of the evidence against the accused was comprised by statement given by the co-accused. As a result the charges against the accused were stayed by the Crown during the course of a preliminary hearing. Subsequently the police learnt the accused had been making incriminating statements and mounted an undercover operation which has some direct parallels with the present case. The accused was given the impression that the undercover team was involved in criminal activities and that he could become part of their organisation. One officer was cast in the role of the head of the organisation. Another established a personal relationship with the accused. He gave the impression that he was out to help the accused become involved in the organisation. During this initial period of relationship building the accused on four separate occasions advised this officer that he had been wrongfully imprisoned for murder. No clarification of this was requested by the officer. After a relationship of some trust had been established the officer took the accused to the purported head of the organisation. Prior to the meeting he cautioned the accused, who was anxious to make a good impression, that he must be truthful. Early in the discussion the purported head of the organisation said to the accused:

"Larry tells me you whacked somebody. That's fine with me. That's, that's fuckin excellent. It's the kind of thing that, uh, I know that I'm dealing with somebody that's on my fuckin – somebody that I can trust … that's the kind of person I'm looking for."

In this and other conversations it was emphasised to the accused that the head of the organisation had to be able to trust him and that he was not interested in taking into the group someone with ongoing problems with the police. After some initial hesitation but ultimately with what the Court calls "demonstrable enthusiasm", the accused confessed to the murder. The whole scenario had been constructed to give the accused the impression that the undercover group was involved in illegal activity which the accused assumed to be drug related. The Court accepted that the confession was not made to a person in authority.

[28](1993) 83 CCC (3d) 228

Because the law of Canada does not recognise the notion of basal involuntariness articulated by Dixon J in McDermott, the ambit of the notion of persons in authority is definitive of the rule relating to voluntary confessions. The Supreme Court of Canada again considered the concept in Hodgson v R[29]. The judgment of Cory J, in which six other justices concurred, stated:

"For this reason, the person in authority requirement is properly seen as an integral component of the confessions rule. The emphasis on voluntariness has two main effects: it both avoids the unfairness of a conviction based on a confession that might be unreliable, and has a deterrent effect on the use of coercive tactics. This deterrent effect is properly focused upon the prosecutorial authority of the state, not the personal authority of private individuals. It cannot be forgotten that it is the nature of the authority exerted by the state that might prompt an involuntary statement. As Estey J stated in Rothman, 'their very authority might, by promise or threat, express or implied, produce a statement whether or not the accused was truly willing to speak' (emphasis added). In other words, it is the fear of reprisal or hope of leniency that persons in authority may hold out and which is associated with their official status that may render a statement involuntary. The rule is generally not concerned with conversations between private citizens that might indicate guilt, as these conversations would not be influenced or affected by the coercive power of the state. This limitation is appropriate since most criminal investigations are undertaken by the state, and it is then that an accused is most vulnerable to state coercion."[30] (Citations omitted).

[29](1999) 127 CCC (3d) 449

[30]Ibid at 464 (para 24)

The judgment specifically referred to the position in Australia:

"In Australia, the common law confessions rule is similar to the rule in Canada, but in addition, a statement of the accused may be excluded where 'it is not made in the free exercise of the will, because this will was overborne by the conduct of a person other than the accused': see Peter Gillies, Law of Evidence in Australia, 2nd ed. (1991), at p.537. Moreover the Commonwealth government and the government of New South Wales have enacted legislation that specifically provides for the exclusion of a confession influenced by 'violent, oppressive, inhuman or degrading conduct' or the threat of such conduct. See Evidence Act 1995, 1995 (Cth) No. 2, s.84, and Evidence Act 1995, 1995 (NSW) No. 25, s.84. However, under both the common law and the relevant Australian statutes, the Crown is only required to prove voluntariness on a balance of probabilities."[31]

[31]Ibid at 465-6 (para 27)

The majority judgment expressly endorsed[32] the judgment of McIntyre JA in R v Berger who said:

"The law is settled that a person in authority is a person concerned with the prosecution who, in the opinion of the accused, can influence the course of the prosecution. The test to be applied in deciding whether statements made to persons connected in such a way with the prosecution are voluntary is subjective. In other words what did the accused think? Whom did he think he was talking to? There are many cases of disguised police officers entering prison cells to whom accused persons have made statements held to be admissible because the accused did not know that he was speaking to a police officer or person in authority and was, hence, not acting under the influence of any threat or any hope or inducement; R v Towler, … is an example. … The test is what did the accused think? What was in his mind when he made the statement? Was he under the impression that failure to speak to this person, because of his power to influence the prosecution, would result in prejudice or did he think that a statement would draw some benefit or reward? If his mind was free of such impressions the person receiving this statement would not be considered a person in authority and the statement would be admissible." [33]

[32]Ibid at 468 (para 33) – note that part of the passage quoted above was omitted from that quoted in Hodgson.

[33](1975) 27 CCC (2d) 357

In summarising the relevant law the majority further stated:

"The issue as to who is a person in authority must be resolved by considering it subjectively from the viewpoint of the accused. There must, however, be a reasonable basis for the accused's belief that the person hearing the statement was a person in authority.
The issue will not normally arise in relation to undercover police officers. This is because the issue must be approached from the view point of the accused. On that basis undercover police officers will not usually be viewed by the accused as persons in authority."[34]

[34]Hodgson v R (1999) 127 CCC (3d) 449 at 475 (para 48)

The dissenting justices L'Heureux-Dubé J and Bastarache J took the view that the subjective test adopted by the majority was unsatisfactory. It is to be noted, however, that the approach adopted by them would still require the objective involvement of representatives and agents of the State to be "formal" and to give rise to a belief the person could influence or control proceedings.

"The general definition of 'persons in authority' is 'someone [formally] engaged in the arrest, detention, interrogation or prosecution of the accused' (see R v Paonessa (1982), 66 CCC (2d) 300 at p.306, 135 DLR (3d) 277 (Ont. CA); affirmed [1983] 1 SCR 660, 3 CCC (3d) 384, 146 DLR (3d) 192). This includes both formal representatives and agents of the state. In my view, this remains the basic test and I have difficulties with my colleague's largely subjective approach to this concept, which, I fear, leaves undue scope for encompassing private persons. Given my conclusion as to the cardinal role of the concept of 'persons in authority' in the confessions rule, and how it directs the latter toward state conduct, I find that a broad and subjective interpretation of 'persons in authority' has the danger of excluding evidence derived from purely private conversations and thus indirectly achieving what we have rejected above as inappropriate. Indeed, as examined below, logic and the applicable authorities persuade me that the analysis of 'person in authority' should begin with an objective test that mirrors the general definition, and only subsequently turn to examine the subjective belief of the accused."[35]

[35]Ibid at 484 (para 70)

The dissenting justices concluded:

"In summary, the proper test for 'person in authority' examines, first, the objective status of the person to whom the statement was made, and only where they are identified as someone formally engaged in the arrest, detention, interrogation or prosecution of the accused, is it then necessary to examine whether the accused believed that the person could influence or control the proceedings against him or her. While Cory J adds a 'reasonableness' element to the latter subjective element, I respectfully find this to be an inadequate objective requirement that continues to focus on the belief of the accused."[36]

[36]Ibid at 490 (para 83)

In my opinion, the purpose underlying the definite rule relating to confessions preceded by inducements held out by persons in authority and the articulation of that rule in authority, including the decisions of courts in jurisdictions where it has been regarded as definitive of the relevant concept of voluntariness, demonstrate that the inducement must be held out in a manner cloaked with authority. The differences of approach expressed in Canadian authority do not turn on this primary requirement.

In the present case, this requirement can only be regarded as being met if the role of an undercover police officer who was represented to be a corrupt drug squad detective at the initial meeting at the Grand Prix, can be regarded as cloaking the subsequent inducements with authority. In my opinion it cannot. The purported corrupt police officer was part of the scenario at the time of the initial introduction to the purported gang. What was said about him both at the Grand Prix and subsequently in reiteration and reinforcement of the scenario was, however, clearly said by persons who purported to be criminals. There were no inducements offered by persons in authority in the relevant sense prior to the confessional statements. Indeed, the essence of the inducements that were offered was that they were not offered by persons in authority but were offered by criminals purporting to have connections with, but in fact to be outside, authority.

Basal Involuntariness

In the passage already cited from McDermott Dixon J encapsulated the essence of involuntariness as follows:

"This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary."[37]

[37](1946) 76 CLR 501 at 511

In R v Buchanan[38] the Full Court considered a case where the police interviewed an accused in hospital five days after an accident. Sholl J said for the statement to be involuntary the accused must be "incapable of appreciating that he had a choice to remain silent, or incapable of exercising sufficient volition to give effect to what he knew was such a right of choice."[39]
[38][1966] VR 9
[39]Ibid at 15

In Collins v R Brennan J stated:

"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, focusing 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."[40]

[40]Collins v R (1980) 31 ALR 257 at 307

In the present case the accused was given a clear choice whether to speak or not as to his past. He was encouraged to speak the truth but the ultimate choice was his as to whether he spoke at all concerning the killing.

It can of course be said that the accused was misled as to the circumstances in which he spoke. He was misled as to the true identity of those with whom he was speaking and he was misled as to a number of related collateral circumstances. In my view, however, this did not render his statements involuntary in the necessary sense. Moreover, I do not accept that he was intimidated, importuned or overborne into speaking as he did. He was offered an increasingly attractive choice and he made it.

The fundamental deceit in the present case was as to the identity and roles of those to whom the accused was speaking. Subsidiary inducements were all elements in the scenario of false identity and roles; namely the prospect of assistance to fix things with the police, the payment of $10,000 as the accused's share of the proceeds of a purported robbery, and the prospect of lucrative involvement in the future operations of the gang. In this regard it is pertinent to note that in both Swaffield and Pavic the High Court proceeded on the basis that no issue of basal involuntariness arose, despite the fact that in Swaffield the accused was fundamentally deceived as to the identity of the undercover police officer with whom he spoke, and in Pavic was misled as to whether the witness Clancy was believed by police to be a suspect and of course as to whether Clancy was fitted with a covert microphone.

It was put by Mr Hayden that the accused was the subject of a planned operation that built up to a crescendo on 17 March 2002. On that day, P made it clear to the accused:

·that the accused was in a corner;
·the DNA document showed that there was a problem with the police;
·the $10,000 and other moneys were at risk;
·but if the accused told the truth to the boss he would be admitted to the gang and if necessary the prosecution would be fixed by the boss; and
·there was a crisis situation in which if he waited two weeks it could be too late.

It was further put that these statements contained implied threats as to potential dangers and losses and should not simply be regarded as inducements in the nature of promises.

Accepting the above characterisation, I am nevertheless of the view that the accused's will was not overborne. This was a fundamentally different situation from that of the type in issue in Foster v R:

"Third, there was a real question in the present case about whether any admissions by the appellant were voluntary in the sense of meaning 'in the exercise of a free choice to speak or be silent.' Inevitably, the subjection of a person to involuntary and persistent interrogation by the police while he or she is unlawfully detained in police custody gives rise to a situation in which there are likely to be grounds for concern about whether any confessional statement has been voluntarily made since the unlawful detention in custody is likely to carry with it an implicit threat of continued unlawful detention unless and until the questions of interviewing police are answered to their satisfaction. In the present case, there was the added factor that the appellant specifically claimed that the confessional statement had been fabricated by the police and that his signing of it was the direct result of police threats of physical violence to himself and of action against his younger brother …"[41] (citations omitted)

[41](1993) 67 ALJR 550 at 556

In the present case the accused was fundamentally misled as to the context in which the confessional statements were made but he was not compelled to make those statements or threatened in such a way that it could be concluded that his will was overborne. Thus while I accept that as Murphy J said in Cleland "it may be a question of classification whether a confession induced by false representations, or other trickery is voluntary"[42], I am satisfied on the balance of probabilities in the present case that the confession was in fact voluntary. There is no sense in which the confessional statements can be regarded as "manufactured". The substance of them was clearly the result of the accused's volition.
[42](1982) 151 CLR 1 at 13

Section 149 of the Evidence Act

Section 149 of the Evidence Act 1958 provides:

"149No confession which is tendered in evidence shall be rejected on the ground that a promise or threat has been held out to the person confessing, unless the judge or other presiding officer is of opinion that the inducement was really calculated to cause an untrue admission of guilt to be made; nor shall any confession which is tendered in evidence be rejected on the ground that it was made or professed to have been made on oath."

In R v Lee[43] the High Court held that this section is limited in two respects. It applies only to "confessions", i.e. complete admissions of guilt and it applies only to cases in which the confession would have been excluded at common law on the ground that it had been induced by a threat or promise made or given by a person in authority and on no other ground. It follows from my conclusion that the confessional statements in the present case were not induced by threats or promises made or given by a person in authority that s.149 has no application. Further, despite the fullness of the admissions made it is doubtful that they can be regarded as complete admissions of the mental elements of the crime of murder. Accordingly, it is difficult to conclude that the confessions amount to complete admissions of guilt of the crime of murder.[44]
[43](1950) 82 CLR 133
[44]cf R v Sergi (unreported ruling of Southwell J)

Reliability

In Swaffield and Pavic after referring to the statement of Murphy J in Cleland as to the potential broadness of the notion of voluntariness, the joint judgment stated:

"The wider the operation given to the principle that, to be admissible, a confession must be voluntary, the less scope there is, in practice, for the exercise of the unfairness discretion. Particularly is that so in relation to improprieties calculated to cause the making of an untrue admission. It may be expected that improprieties calculated to have that effect will often impact on the exercise of a free choice to speak if that notion is given its full effect. However, it will not necessarily be so in every case.
In R v Lee (1950) 82 CLR 133 at 153, the likelihood of an impropriety resulting in the making of an untrue admission was treated as 'relevant, though not necessarily decisive'. As the authorities stand, the likelihood of an unreliable confession does not mandate the exercise of the unfairness discretion to exclude that evidence. Nevertheless, it is hard to understand why, in such circumstances, the discretion would not be exercised in that way, particularly when regard is had to the consideration that the risk of an untrue admission is the rationale for the inadmissibility of a non-voluntary confessional statement."[45]

[45](1998) 192 CLR 159 at 197

In Victoria the issue of reliability might also be thought to be of particular significance by reason of the provisions of s.149 of the Evidence Act. It would be peculiar if reliability were the touchstone of the acceptance of that class of confessional statements caught by the section but was not thought to be of substantial significance with respect to other confessional statements.

There can, however, be no serious argument that the confessional statements in the present case should be excluded as unreliable. First, the nature of the inducements offered to the accused and the logic of the scenarios with which he was confronted both expressly and implicitly encouraged him to tell the truth. He was at no stage invited or encouraged to confess to murder as such. In this regard the current case is in stark contrast to some Canadian cases where the accused has been invited to confess to murder effectively as a "badge of honour".

In addition the confessional statements are replete with circumstantial references which strongly suggest that they are or could fairly be regarded by a jury as reliable. It is inappropriate for me to catalogue these matters at this stage of the hearing.

The Overall Discretion

Mr Hayden submitted that even if the issues of voluntariness and reliability were resolved against the accused his confessional statement should be excluded pursuant to the overall discretion of the Court as elucidated in Swaffield and Pavic. It was in substance submitted that:

(a)the confessional statements were induced by conduct which unfairly derogated from the accused's freedom to choose whether to speak to police;
(b)that the method of inducement adopted necessarily involved incidental and unfair prejudice to the accused if evidence of such conduct were presented to a jury; and
(c)that the evidence was obtained at a price which is unacceptable having regard to prevailing community standards.

It was submitted on behalf of the Crown that once a confession is found to be voluntary and admissible, its rejection pursuant to the Court's discretion is to be regarded as an "exceptional step", particularly when the Crown's case hinges upon it. I reject this submission. In Swaffield and Pavic the joint judgment stated:

"It was said by Gibbs CJ, Wilson and Dawson JJ in Cleland that it will be in an exceptional case that a voluntary confession which it would not be unfair to the accused to admit could be rejected on the ground of public interest. That is too narrow an approach, particularly in the light of Ridgeway."[46] (citations omitted)

[46]Ibid at 198

It is appropriate to consider firstly whether the means by which the admissions were elicited in the present case resulted in an unfair derogation from the accused's rights or constituted conduct unacceptable for public policy reasons. Secondly, it is necessary to consider whether unacceptable forensic unfairness may result from the admission of the confessional statements in evidence. Thirdly, it is appropriate to consider whether having regard to the circumstances of the case as a whole the evidence of confessional statements has been obtained at an unacceptable price having regard to contemporary community standards.

The Means by Which the Confessional Statements Were Elicited

In Swaffield and Pavic the joint judgment of Toohey, Gaudron and Gummow JJ concluded:

"… In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations."[47]

[47]Ibid at 202

Kirby J reached a different conclusion as to the application of the relevant principles with respect to the facts in Pavic but in so doing elaborated the concept of unfair elicitation of confessional statements by reference to the Canadian authorities:

"This concept of elicitation was further refined by the Supreme Court of Canada in R v Broyles. 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. In responding to this question, the Court held that two sets of factors should be taken into account:
'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?' "[48] (citations omitted)

[48]Ibid at 219-20

The question of whether the confessional statements may be said to have been elicited by the undercover police in unfair derogation of the accused's right to choose to speak or in a manner contrary to public policy, involves a consideration firstly of whether the statements were in fact "elicited" in the relevant sense and secondly, whether if so they were unfairly or improperly elicited having regard to all the relevant circumstances.

In Swaffield and Pavic Kirby J further elaborated these concepts as follows:

"Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest. There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority. 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."[49] (emphasis added)

[49]Ibid at 220-21

In the present case there is no doubt that the confessional statements were elicited by the undercover agents in the sense that they resulted from the functional equivalent of an interrogation. The critical statements in the present case are those made by P on 17 March 2002 and then shortly afterwards by M at the Crown Towers Hotel. The initial conversation with P was preliminary to the subsequent discussion with M. The statements made by P can be said to have elicited confessional statements from the accused because:

(a)P exhorted the accused to tell the truth in terms that took issue with the accused's previous truthfulness and underlined the potential consequences of a failure to truthfully disclose any involvement in the killing;
(b)in the course of exhorting the accused to tell the truth P said:
"Now I tell you what I think okay? I think you were obviously rooting this bird, I think that you found out she was a prostitute and you lost your temper and you fuckin killed her. That's what I think. Now I don't give a fuck, I don't care about her, I couldn't –"; and

(c) P harangued the accused.
Following this initial exhortation P did not interrogate the accused but allowed him to speak of what had occurred in his own terms. When P then took the accused to M however, M effectively interrogated the accused as to all the relevant circumstances of the killing under the guise of needing to know such circumstances if he were to be able to assist the accused with the police.

Having said that what occurred was the functional equivalent of interrogation, it must also be said that both conversations were conducted by the undercover police "as someone in the role the accused believed the informer to be playing would ordinarily have done" (Broyles v R[50]). Which role the accused implicitly accepted.
[50](1991) 68 CCC (3d) 308

It was further submitted on behalf of the accused that the undercover police officers exploited a special relationship between themselves and the accused. A special relationship was said to arise because,

(a)they persuaded the accused to trust them;
(b)they persuaded the accused to believe that P was his friend;
(c)they persuaded the accused to believe that M was to be trusted as the head of the hierarchy within the gang and was in a position of authority over an aspiring entrant to the gang;
(d)they persuaded the accused he could speak confidentially to M; and
(e)they persuaded the accused to believe M had it in his power to materially assist the accused with respect to the potential actions of the police.

I am not persuaded that this relationship should be regarded as a special relationship in the sense contemplated in the Canadian authorities. Firstly it was not a pre-existing relationship exploited by the State as was the relationship of friendship in Broyles. Nor was it a collateral relationship of trust established for example with a professional adviser. It was essentially a mutual relationship willingly established by the accused. He was repeatedly told that he could walk away from it.

Having said this, it is clear that the undercover agents manipulated the accused to bring about a mental state in which he was more likely to talk, in the sense firstly of fabricating the entire relationship in which the conversations took place and secondly reinforcing the logic of the fiction created in the accused's mind in order to encourage him to talk.

In summary the confessional statements can be said to be elicited because:

(a)they occurred in a fabricated relationship created by the undercover operators;
(b)the logic of the roles within that relationship was emphasised to the accused to actively encourage him to talk and tell the truth;
(c)substantial inducements were offered to the accused to make the relationship more attractive to him;
(d)the process culminated in the exhortations by P which included the direct suggestion to the accused that he was in fact responsible for killing the deceased; and
(e)following the initial confession of such responsibility to P the accused was interrogated by M as to all relevant circumstances.

These circumstances give rise to the further questions whether the elicitation was unfair or improper:

(a)having regard to the stage of the investigative process at which the conduct occurred; and
(b)having regard to the form of elicitation adopted.

In Canada it would appear the stage of the investigative process is regarded as a critical consideration. In R v Hebert McLachlin J specifically noted that the right to remain silent guaranteed by s.7 of the Canadian Charter "applies only after detention" and went on to say:

"The jurisprudence relating to the right to silence has never extended protection against police tricks to the pre-detention period. Nor does the Charter extend the right to counsel to pre-detention investigation. The two circumstances are quite different. In an undercover operation prior to detention, the individual from whom information is sought is not in the control of the state. There is no need to protect him from the greater power of the state. After detention, the situation is quite different; the state takes control and assumes the responsibility of ensuring that the detainee’s rights are respected."[51]

[51](1990) 57 CCC (3d) 1 at 41

In Australia the High Court has applied the Canadian concept of the accused's freedom to choose to speak in a broader way, and in Swaffield and Pavic applied that concept to non-custodial situations. Nevertheless it is apparent that the stage of the investigative process at which the confessional statements are obtained must be a relevant circumstance bearing both upon the fairness of the means by which any admission was elicited and whether such means were acceptable having regard to contemporary community standards.

In R v Carter[52] it is clear that the Court of Appeal had regard to the stage of the investigative process there in issue. Charles JA said:

"… At this time there was merely a police inquiry into the whereabouts of a missing person. The police had attempted unsuccessfully to obtain information from the applicant, but had no further ability to interview her. At this time the police did not know (although they doubtless suspected) that Rebecca Parkes was dead. The applicant had made some limited statements to the police but refused to go further. In these circumstances the Eyleses made an offer to the police to find out what had happened, as relatives of the missing woman. While the death of the missing woman was an open possibility, there was not then on foot a police investigation for a crime, and the applicant was not, in the true sense, a suspect of a crime. What took place in the first conversation was that the applicant, believing she was in the company of friends, volunteered a series of admissions in which she first confessed to having the deceased killed at her behest. …"[53]

[52][2000] 1 VR 175

[53]Ibid at 189 (para 49)

Insofar as the stage of procedure involved in the present case is concerned:

(a)this is not a case where the accused was in custody and therefore subject to the compulsion of the State as in both Hebert and Broyles; R v Foster and Victorian cases such as Lewis[54]; Dewhirst[55]; Juric[56]; Roba[57]; Franklin[58]; and Chimirri[59];
(b)it is also not a case where the accused had unequivocally exercised his right to silence when interviewed by the police as in Swaffield and Pavic, Juric, Heaney, and Chimirri. Although he had given some incidental and selective non-responsive answers to police, he had voluntarily made an initial statement, corrected that statement in a subsequent interview, and co-operated in answering extensive questions about his actions prior to and at about the time of the killing. The lapse of time since the interview with police in July 1999 does not change this starting point;
(c)it is a case where the accused actively co-operated in the functional equivalent of an investigative interrogation believing that he was speaking to criminals rather than the police;
(d)the elements of interrogation in the relevant conversations were patent and entirely consistent with the roles the undercover agents were playing at the time. The interrogation effectively emphasised and reinforced the character of the roles which the accused understood those speaking to him were playing;
(e)the elicitation occurred when the police had not charged the accused and had no proper basis for charging the accused. The case (if any) against the accused was weak. This is not a case where the accused was a "gold plated A grade suspect"[60]. I accept the evidence of the investigating police officers that they held a genuine belief that the accused was "a poor suspect" until the confessional statements were obtained. Police believed he had not been fully frank with them, but simply did not know what involvement (if any) he had in the deceased's death. The elicitation of statements as to the true facts can thus fairly be regarded as a necessary step in the investigation of the crime;[61]
(f)it is not a case to which s.464A and following of the Crimes Act applied.[62]

[54][2000] 1 VR 290

[55](2001) 122 A Crim R 403

[56][2002] 4 VR 411

[57](2000) 110 A Crim R 245

[58](2001) 3 VR 9

[59][2002] VSC 555

[60]Novosel (Roba (2000) 110 A Crim R 245)

[61]cf R v Lewis (2000) 1 VR 290 and R v Franklin [1998] VSC 217.

[62]cf Pollard v R (1992) 176 CLR 177

Turning to the form of elicitation a threshold question is whether the use of such undercover role playing is necessarily unfair in the investigation of serious crimes. In my view it is not. No illegality or breach of police standing orders has been established before me. In such situations it must ultimately be open to police to employ undercover techniques when all other processes of investigation fail. It is inherent in such methods that they will involve subterfuge and are unlikely to produce admissions as to serious crimes unless a relationship of trust is created between the accused and the undercover operatives. In many cases they will require some active "elicitation" to be adopted. In R v Lewis the Court of Appeal stated:

"No doubt there is always a degree of deception involved in the use of an undercover operative but, as has been frequently said, investigation of serious crimes (our emphasis) cannot always be played out in accordance with a sportsman's code of conduct."[63]

[63](2000) 1 VR 290 at 314 and see Swaffield and Pavic per Brennan CJ at 185-6

Likewise in R v Carter the Court of Appeal accepted the accused was deceived and significantly misled by subterfuge and that she was to some extent manipulated in the process of making admissions[64].
[64](2000) 1 VR 175 per Charles JA with whom Chernov JA and Hedigan AJA agreed

In Unger's case the Court addressed the realities of the type of situation in issue. It was submitted that the impression left with the accused when the leader of the group expressed approval of his "whacking" somebody was that the group was looking for a murderer. The Court commented:

"But the inducement (and the Crown readily conceded that it was an inducement) must be understood in the context of the entire undercover operation. As noted by Constable Tremblay:
'The problem we ran into in this particular investigation is the crime itself was quite gruesome. It's human behaviour, normal behaviour that you won’t talk anything serious with somebody selling ice cream, for example. We were talking about a serious crime. We had to establish ourself [sic] to a level that Mr Unger would feel comfortable discussing such a serious matter'."

When an undercover operation of the sort here in issue proceeds there is a real sense that the language and terms of the conversations become in large part dictated by the roles the undercover operatives assume. The fundamental subterfuge and the elicitation ultimately become inextricably intertwined because of the logic of the roles which are created. The operatives cannot behave as police officers would if they are to remain true to their roles. The distinction between facilitating and eliciting a confession is not necessarily easy to observe in these circumstances. The situation differs from an isolated encounter which is set up in custody or elsewhere. Thus the controller of the operation gave evidence as to P's role on 17 March 2002 as follows:

"Why didn't you simply say to P again allow target to tell his story with nothing more than natural prompting?---… P still has to play the role that he is playing, and on this occasion we have a situation where in P's mind he has been told by the accused on several occasions that he has already provided his blood for DNA. Now when he rings and tells P he has got this form, it is quite obvious that he has lied to P, that he has not provided his blood. Now P has to play the role of somebody in that position. It is a slightly different situation, he can't just arrive there and listen to what he says and do nothing about it.
Why can't you just listen to what he said with a bit of prompting? Why can't P say to him, as he did, you have told me that you gave DNA years ago, and the accused would no doubt say, as he did, that he had not given DNA, and P can say to him, 'What's the story? What's going on?' What's wrong with that?---It is not realistic. P and the accused had run around Melbourne for nearly three months committing all sorts of major crime, purported or simulated major crime. They built up a very strong relationship. A relationship was based on trust, honesty and loyalty, and that was – truth, honesty and loyalty, that was the mantra that P relayed to him on every occasion they met. Then to be told by this person who is your close friend you have committed these acts with that he had not given his blood; he actually didn't say he had not given his blood, it only came to light because of this form. P had to play the role of somebody who had a great relationship that has just been undermined by a fairly significant lie."

It is presumably because subterfuge may be acceptable that s.464 of the Crimes Act expressly excludes undercover operatives from the definition of "investigating official". This is a significant legislative recognition of the potential legitimacy of covert operations in the course of investigation.

Having regard to both the stage of the investigation at which the elicitation of statements occurred and the form of such elicitation I am of the view that the procedure adopted in the present case was not so unfair or improper as to justify the exercise of the Court's discretion to exclude the resulting confessional statements. In this regard I find the following to be relevant:

(a)The elicitation did not seek to circumvent an express refusal by the accused to talk to the police;
(b)It did not take advantage of any vulnerability of the accused created by custody;
(c)It had effect by reason of a relationship which the accused entered into freely and it did not exploit some pre-existing or collateral relationship with the accused;
(d)It resulted from conversations occurring in that relationship which were entirely consistent with the roles the accused believed the undercover operatives were playing;
(e)It occurred at what can properly be regarded as the investigative stage of the proceeding and so occurred in circumstances where other avenues of investigation had proved unsuccessful. A legitimate investigative purpose has been held to justify procedures which might otherwise have been inappropriate in cases such as Franklin, Lewis and Carter;
(f)The crime in issue was murder. In Cleland Murphy J stated:
"A 'rule of reason' also should be followed. Evidence obtained by unlawful or improper conduct should be almost automatically excluded on trials of minor offences, but otherwise in trials for the most serious crimes. For example, when dealing with real evidence, if a murder or kidnapping is discovered by an unlawful entry, it would be unreasonable to exclude evidence of the discovery. So also would evidence of voluntary confessions."[65];

(g)The undercover operatives emphasised the need to tell the truth;
(h)The undercover operatives did not materially mislead the accused as to the position of the police investigation as in cases such as Amad, Foster, Heaney and Novosel (Roba);
(i)In the words of Callaway JA in R v Bernath: "This was not a case of the serpent's beguiling or of a trap for the unwary innocent as opposed to a trap for the unwary criminal"[66];
(j)The means of elicitation employed in the circumstances which prevailed were not so disproportionate to the problem confronting the police as to be inherently unfair or contrary to public policy;
(k)It is apparent the Crown case is dependent on the confessional statements.
[65](1982) 151 CLR 1 at 17
[66][1997] 1 VR 271 at 277.

Unfair Forensic Advantage

In Swaffield and Pavic the joint judgment states:

"… There may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence. Thus, in McDermott, where the accused did not admit his guilt, but admitted making admissions of guilt to others, it was hypothesised by Williams J that it might have been unfair to admit his statement if the persons to whom the admissions were made were not called as witnesses. In R v Amad, Smith J rejected admissions which were voluntary and which the accused accepted were true because the manner in which he was questioned led to apparent inconsistencies which might be used to impair his credit as a witness. And the significance of forensic disadvantage is to be seen in Foster where the inability of the accused to have his version of events corroborated was taken into account."[67] (citations omitted)

[67](1997) 192 CLR 159 at 197-8

It was submitted on behalf of the accused that evidence of the confessional statements would necessarily cause unfairness to him because it would incidentally involve narration of the accused's willingness to become a gang member involved in serious crime. It might also be thought (although it was not expressly contended) that confessional statements formulated by reference to the capacity of the head of the gang to "fix" the situation with the police were doubly prejudicial.

It is apparent that the references to the accused's involvement in the preliminary scenarios prior to the confessional statements could be edited from the confessional statements and indeed it would be open to wholly exclude the first such statement to P, if it was thought that such editing otherwise produced an artificial result. Mr Hayden submitted, however, that this could not be done because the accused's explanation for the confessional statements was that he made untrue statements for the purpose of gaining entry into the gang and resultant monetary rewards and thus would need to put relevant statements by P to the jury.

If the matters said to be prejudicial are not excluded because they are on balance regarded by the defence to be more advantageous than disadvantageous to the accused the potential prejudice involved can be addressed in two ways. First, they will be subject to forensic attack directed to the extent to which they reflect conduct which was manufactured by the police and/or was entirely fictional. Secondly, the prejudice can be addressed by appropriate directions to the jury as to the manner in which the evidence can be used. In my view the matters complained of do not justify exclusion of the confessional statements in this case. It cannot be said that the prejudicial elements of the context of the confessional statements outweighs their probative value. Nor will the matter complained of be necessarily prejudicial in effect as the position of the defence demonstrates. It is not the preliminaries to the confessional statements or the context of those statements or collateral references made in them which may create forensic devastation in the present case. If such statements are to be regarded as forensically devastating, that result derives from the full and circumstantial nature of the admissions made.

The Overall Discretion

For the above reasons I am not satisfied that either the circumstances in which the confessional statements were elicited or the possibility of prejudice to the accused in the course of his trial taken individually justify the exercise of the Court's discretion to exclude such statements.

Ultimately, the Court must exercise an overall discretion balancing the individual and public interest in protecting the rights of the accused against the public interest that serious crime be the subject of effective law enforcement. Having regard to all the circumstances I have enumerated, I am not satisfied that the confessional statements have been elicited in a manner which is unacceptable in light of prevailing community standards.

In Unger the Court referred to what Canadian authorities describe as "the community shock test".

"In Rothman, Lamer J, who agreed with the majority in the result, first referred to what has become widely known as the 'community shock' test. Specifically, he said (at p.74):
'It must also be borne in mind that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community.'

This test was subsequently adopted in numerous decisions as the appropriate standard in matters of this kind. Commentators have referred to the distinction as being between mere tricks on the one hand, and dirty tricks on the other. For example, in Collins, Lamer J, writing for the majority, said (at p.21):
'I still am of the view that the resort to tricks that are not in the least unlawful let alone in violation of the Charter to obtain a statement should not result in the exclusion of a free and voluntary statement unless the trick resorted to is a dirty trick, one that shocks the community. That is a very high threshold, higher, in my view, than that to be attained to bring the administration of justice into disrepute in the context of a violation of the Charter.'

Courts should not be setting public policy on the parameters of undercover operations. The Crown's position, with which we agree, is that the public would endorse rather than be shocked by the efforts of the undercover agents in this case.
Hewak C.J.Q.B. rightly concluded that the evidence in question was admissible. We agree with his comments when he said (at p.253):
'In my view, on the facts of this case, the undercover officers acted in a way consistent with the need to investigate a very brutal crime. Their actions were, without doubt, different from the standard procedures, but they had to be, given the various previous attempts made by them to investigate, bearing in mind the circumstances of case, and lack of hard evidence. They had information that pointed in the direction they should follow, and in the circumstances they devised and followed a plan that was appropriate to continue with their investigation.
I find it difficult to accept that a reasonable dispassionate person, aware of the difficulties in the investigation of the case, would consider the undercover operation and use of tricks by the officers, as being unfair or so unacceptable, indecent, and outrageous, that the evidence that was derived from that operation, if admitted as evidence in the trial of the accused, could bring the administration of justice into disrepute.'

The Crown did not engage in dirty tricks. Their conduct, viewed in totality and objectively, particularly in light of the fact that honesty was stressed by Tremblay and Forbes, would not shock the informed community. There was no unfair inducement in the circumstances; indeed, there is no evidence to substantiate this given the failure of Unger to testify on the voir dire."[68]

[68](1993) 83 CCC (3d) 228 at 248-9

In my opinion there is much to be said for the above observations as to the reality of prevailing standards among what the Court refers to as the "informed community". In my opinion, prevailing community standards would not support the exclusion of the confessional statements in the circumstances of the present case. They do not lead to the conclusion that the behaviour of the police has brought the criminal justice system into disrepute (as submitted to me) or that the evidence was obtained at too high a price in terms of the rights of the accused. The appropriate course is that the statements be submitted to a jury to assess their probative value.

Conclusion

For the above reasons I rule that the confessional statements of 17 March 2002 are admissible and that they should not be excluded in the exercise of the Court's discretion. As I understand it, it is accepted that if these are admitted then statements made in the course of the conversations between undercover police operatives and the accused over the preceding months as a prelude to the conversations of 17 March 2002 should also be admitted in evidence, and I am of the view that this is the correct approach. In the first instance counsel should seek to agree as to how this might most efficiently be done.

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CERTIFICATE

I certify that this and the 37 preceding pages are a true copy of the reasons for ruling of Osborn J of the Supreme Court of Victoria delivered on 6 June 2003.
DATED this 13th day of September 2004.

Jennifer Trewhella
Associate to Osborn J

APPENDIX A

"Q524 On the Saturday when you were at Sunshine ---
A Mm'm.
Q525When did you decide where you were going to go? The man was going to drive you, Joe was going to drive you. When did you decide where you – where you wanted to go?

A                  No answer with that.
Q526           No answer?
A                  Yeah.
Q527You said in your statement that you normally ring Daniella on the phone to see whether you can come around, is that right?

A I have no answer.
Q528No answer. Are you aware of the derelict car, a bomb car, that's parked out the back of Daniella's flat?

A                  I have no answer.
Q529           No answer. Do you understand what I'm saying?
A                  No.
Q530           You don't understand what I'm saying.
A                  …
Q531Would you be able to ask Alipapa if he knows of a – an abandoned car …?

Interpreter …
A (suspect) Yeah.
… … …
Q551Do you know which street you were in in South Yarra or Prahran?

A I have no answer there.
Q552Is it possible you could have caught a taxi from that intersection?

A I have no answer.
Q553No answer. Did you have much money in your pockets at that time?

A                  Can't remem-, I have no answer.
… … …
Q559           Do you remember what you said to Madeline?
A                  No answer.
Q560           Right. Do you understand what I mean?
A                  Yeah, I understand what you mean, yeah.
Q561Yeah. Can I put it to you that you said to Madeline, "can you get Daniella to come outside to –" what do you say to that?

A No answer. She's wrong.
… … …
Q568Saturday morning. Did you eat any food on Friday night at Daniella's?
ANo. I have no answer … Positive no.
Q569You're positive that you didn't eat any food?
ANo.
Q570Do you remember having dinner on Friday night?
AI have no answer to that one."

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APPENDIX B
"PAli, this is very serious. This could fuck everything up. Okay? This is, this is, I can't tell you how serious this is alright? This could put a lot of things in jeopardy and you know I don't care okay and I've always done the right thing by you okay? Now Ali look at me, did you do this?

A No.
PCause I've got to tell you all, I don't fuckin know anymore. I don't know. Now this looks very bad okay, it looks very bad. These police, they don't give up, they don't, they keep going, he's from the Homicide Squad it says here. They just keep going and going and if they want your blood, they think you've done it –
AYeah.
POkay? Now if they think you've done it, you could get charged alright? If, if you get charged, that fucks everything up and there's no way, I can't see my boss being able to help you if you, if you don't want help. Do you know what I mean?
AMmm.
PIf, my boss can help you okay but if you've got problems like this, my boss might not want you in the group. My boss might say so because he thinks that you could get charged and my boss will tell me no and I've, I've put myself on the line for you. I've absolutely told my boss you, you're fantastic and you'll do the right thing but if we can't, if we can't help you then how, how can my boss let you be in the group and be one of the boys if, with this, with this sort of police attention? Okay? Now Ali I don't give a fuck alright? I can understand why you would say no –
AMmm.
PI can understand it okay because I would too alright but we, if we're going to help you, we have to help you soon or it could be too late. Okay?
AMmm.
PIt, it could be too late if you tell me in a months time, after they've taken this blood and for you to tell me I need your help now P. Okay? It could be too late then alright? If they've taken your blood, they must have something to match it up against. Now if, if they do that, or I think they must, if they do that, then –
AYeah.
PHow can we help you then? Now I've done a lot of things with you okay? I've trusted you so much with me and you could put me in jail for a long time, do you think so? Talk to me Ali, do you –
AYeah –
PThink so?
AYeah.
PNow I tell you what I think okay? I think you were obviously rooting this bird, I think that you found out she was a prostitute and you lost your temper and you fuckin killed her. That's what I think. Now I don't give a fuck, I don't care about her, I couldn't –
AMmm.
PGive a fuck the world. My only care is you and the boys. I can't have trouble coming to the boys –
AYep.
PAnd I don't want you getting into trouble but you've got to be able to help yourself Ali. Do you understand? My boss –
AYeah.
PIf he sees this and he knows something about this, he knows something about this. If you, if you don't want to tell my boss the truth, then he, he might not be able to help you. Do you understand what I'm saying –
AYep.
PAnd, and this is where I'm coming from (inaudible) I don't care and remember when I first met you –
AYeah.
PAnd you told me about something –
AYeah.
PAnd I understand, I understand why you'd say no, I understand that but for fucks sake Ali this is, this is big trouble. It could be big trouble for you and, and my boss is in a position where he could help you if, if you want to be helped but it could be too late down the track. If you're going to, if you could get charged and you could go to jail, then my boss, how can he help you when you, if, if that happens? Oh come on Ali. I can understand, look we've been through so much together you and I, is that true?
AYeah it’s true.
PAnd I can understand why you would say no, I could understand in the past if you've said it wasn't you, I can understand cause you didn't know maybe this was going to come up but this could fuck us up. The ten thousand dollars next week, my boss could say no. The two and a half thousand dollars on Wednesday, no. The money every time we do a collect, my boss could say no. He could say no the, we can't have there's too much, there's pressure because, look Ali if you've done this, I’ll, I'll say, I’ll say it again. If you haven't done this, then give your blood, there's no problems is there? Okay?
AMmm.
PBut if you have done this and you want help, we can help you but you can't have it both ways Ali. You have to be able to tell me the truth and you have to be able to trust me –
AYeah.
PAnd it will never be spoken of again. You, if you want to trust me okay?
AYeah.
PAnd I've, God knows you think you can I hope, if you want to be able to trust me, it will go no further. I will say to the boss we need help. You sit down with the boss and you will never ever speak of it again okay?
AYeah.
PIt will never be spoken of again. As long as you want help but it can be, it could be too late for that help down the track. If you want help tell us and we'll be able to help you okay and I understand why you'd say no, I understand that but if, if ever there's a time for you to say maybe I want to talk to you P, then today's that day cause it could be too late down the track. Do you –
AMmm.
PUnderstand?
AYeah.
PNow I don't give a fuck about her Ali, I don't care about her, I care about you.
AYeah.
PI care about myself and my brothers okay and I want you to be one of the brothers.
AOh.
PThat's what I want. Do you understand I don't care, do you understand that?
AYep.
PI don't care what you've done but let's fix it so it doesn't become a problem for you and because if, if this is a problem, then you won't be one of the boys. I, I think my boss will do that cause my boss seems to know something about this. He's flown down to speak to us today okay? You have a chance today to be able to help yourself okay but down the track, it could be too late. Do you understand?
AMmm.
PNow for fuck sake Ali, tell me what happened? Let's fix this problem.
ANo we (inaudible) together for her for two years, I mean two weeks and after that I just move out but before this thing happen and later on (inaudible) in a couple of months or (inaudible) and then police came to my place at work and take me, do, do you know this girl, I say yeah we're living together cause the cops they found my I.D. in her room.
PAli, I'm asking you now to help yourself –
A(inaudible)
POkay? I'm asking that and I'm, I'm not going to keep on saying you've got a chance here cause after today, you might not have that chance alright? You might not have that chance and if my boss talks to you and you, and you want help, you want to talk to him and you want to talk to me and we'll, it'll never be spoke of again. Only you, you, talk to me what you want to talk to me about and then sit down with my boss and maybe he'll aah he'll let you help himself okay but if you want to, if you want to have, have it both ways, if you want to tell me –
AOh just you know, just the things I didn't tell the truth because I, sometimes I was nervous and you might be –
PI understand that.
A(inaudible) someone's going to (inaudible) straight and then –
PI understand that –
AYes and then I'm not to do this business with you.
PBut if, if you, if you tell us –
AYeah.
PWhat happened –
AI should tell (inaudible)
PIf you tell us what happened –
AYeah.
PThen my, then my, my boss won't mind –
AYeah?
PHe doesn't care about that sort of shit.
AYeah.
PHe only cares about the boys –
AMmm.
PThat's all he cares about. He doesn't care about –
A(inaudible)
PAnything else. That's why I'm asking you to say, to talk –
AYeah.
PTo tell the truth and, and, and you, and not half truths Ali, we're –
AMmm.
PI'm, I'm only asking to tell the truth.
A(inaudible)
PSo we'll –
A(inaudible)
PAnd, and we'll never speak –
ATrust me again.
PWe'll never speak of it again.
AMmm.
PNow please honestly, tell me what happened?
AOh and we're having an argument with her and then I just, and I say something bad to me and then, but I was so drunk you know, we drink (inaudible) I, I was did the job, I done the job."

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