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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tofilau

Details

AGLC: R v Tofilau [2003] VSC 188
Case: [2003] VSC 188
Decision Date: 6 June 2003

CaseChat Overview and Summary

In the case of R v Tofilau, the defendant stood trial for drug-related offences. The central issue revolved around the admissibility of confessions the defendant made to undercover police operatives. The case was heard in the High Court of Australia. The crux of the legal matter was whether the confessions were voluntary and if they could be admitted as evidence against the defendant. This hinged on whether the undercover operatives constituted a “person in authority” for the purposes of determining the voluntariness of the confessions. Additionally, the court had to consider whether the confession was basally involuntary, the reliability of the confession, and whether admitting it would be unfair or contrary to public policy.

The court examined the concept of a “person in authority” and concluded that undercover operatives could be considered as such if they induced a sense of compulsion or authority in the mind of the person making the confession. In this case, the court found that the operatives’ actions did not create such a sense of compulsion. The court also considered the doctrine of basal involuntariness, which is a form of involuntariness that occurs at the very foundation of the confession, irrespective of the conduct of the police. However, the court held that the confessions in this case were not basally involuntary. The reliability of the confessions was assessed, and the court was satisfied that they were reliable. The court further considered whether admitting the confessions would be unfair or contrary to public policy, and it determined that it was not.

The High Court held that the confessions were voluntary and could be admitted as evidence. The court rejected the argument that admitting the confessions would be unfair or contrary to public policy. The court therefore allowed the appeals and quashed the convictions, ordering a retrial. This decision clarified the legal standards for determining the admissibility of confessions obtained by undercover operatives and reinforced the importance of ensuring that confessions are voluntary and reliable.

Orders