R v Tofilau (No 2)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 10 of 2004

THE QUEEN
	v.
LEMALUOFUIFATU ALIPAPA TOFILAU

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JUDGES:	CALLAWAY, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 - 21 September 2005
DATE OF JUDGMENT:	21 April 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 40

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Criminal law – Murder – Application for leave to appeal against conviction – Applicant involved in purported criminal activity with undercover police operatives – “Scenario evidence” – Confessions made to undercover operatives – Whether confessions voluntary – Whether made to persons in authority – Whether properly admitted having regard to discretionary considerations – Admissibility of scenario evidence – Directions to be given to jury – Questions that may be asked on voir dire – Application refused - Crimes Act 1958, ss. 398A, 464 ff., 568(1).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. with Ms S.E. Pullen, S.C. and Dr S.B. McNicol	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C. with Mr L.C. Carter	Victoria Legal Aid

CALLAWAY, J.A.:

I agree with Vincent, J.A. There are three points I wish to add. One relates to s.398A of the Crimes Act 1958 and the directions that need to be given when the Crown relies on scenario evidence. Neither of those topics was expressly addressed below or on appeal, in this case or the four cases that were heard with it[1], but that is not to say that the prejudicial character of scenario evidence was overlooked or that no warnings were given. The second point relates to s.85 of the Evidence Act 1995 (Cth). The third point is a caveat concerning the majority view in Wong Kam-Ming v. R.[2]
[1]R. v. Hill [2006] VSCA 41, R. v. Marks [2006] VSCA 42, R. v. Clarke [2006] VSCA 43 and R. v. Favata [2006] VSCA 44.
[2][1980] A.C. 247.

Propensity Evidence

Where the Crown relies on a confession obtained by the mode of investigation exemplified by these five cases, attention must be given to the admissibility not only of the confession but also of the evidence of the scenarios leading up to the confession and to the directions that need to be given to the jury relating to the scenarios. The scenario evidence will show the accused as a willing participant in what he or she believed to be criminal activity. As these cases illustrate, that activity may include despicable crimes like blackmail[3] and crimes of violence.
[3]Compare R. v. Hadjou (1989) 11 Cr.App.R. (S.) 29 at 30.

Such evidence is “[p]ropensity evidence” within the meaning of s.398A of the Crimes Act, as that expression was interpreted in R. v. Best.[4] It is for the Crown to show that it is admissible, rather than for the accused to persuade the judge to exclude it pursuant to the Christie[5] discretion.[6] The test of admissibility is whether the probative value of the scenario evidence is such that it is just to admit that evidence despite any prejudicial effect it may have on the accused. The scenario evidence will usually be admissible for the same kind of reason that evidence of uncharged acts to prove relationship is usually admissible in cases of sexual offences.[7] It is received in order to show how the confession came to be made.
[4][1998] 4 V.R. 603 at 604, 606-608, 616 and 620.
[5]R. v. Christie [1914] A.C. 545.
[6]R. v. TJB [1998] 4 V.R. 621 at 632 and R. v. Loguancio (2000) 1 V.R. 235 at 236 [1], 243 [22] and 245 [29].
[7]R. v. Best at 604, 611-612 and 620; R. v. GAE (2000) 1 V.R. 198 at 200 [1], 206 [20]-[22] and 217 [64]-[67] and R. v. Loguancio at 238 [7]-[20].

The analogy with relationship evidence in cases of sexual offences does not stop there. The jury should be directed as to why the evidence of other purported criminal activity is admitted and warned against using it in an impermissible fashion.

In R. v. BAH(No. 2)[8] this Court reaffirmed the three elements of the direction that should be given to a jury when the Crown relies on evidence of uncharged acts to prove a sexual relationship. The second element is unlikely to be important in relation to scenario evidence, but the first and third elements are just as important. To adapt the language of King, C.J. in R. v. Dolan[9], it is incumbent upon the trial judge to direct the jury as to the use which they are entitled to make of the evidence of other purported criminal activity and, even more importantly, the use to which such evidence must not be put. The jury will have learned that the accused was a person willing, and in some cases eager, to participate in organized crime. They need to understand the limited purpose for which that evidence is before them and that they must not engage in propensity reasoning. That is a real risk in cases like this, especially where the scenarios involve apparent violence.
[8][2005] VSCA 197 at [14]-[15].
[9](1992) 58 S.A.S.R. 501 at 503.

It should therefore be explained to the jury that –

(a)the evidence of the accused’s participation in other purported criminal activity, and his or her attitude to that activity, is admitted solely to establish the context and setting in which the alleged confession came to be made; and
(b)the jury must not reason that, because the accused was a willing participant in what he or she believed to be other criminal activity, the accused is the kind of person who is likely to have committed the crime charged.

There are no doubt other directions that will prove to be necessary or desirable in relation to confessions obtained in this way. The common law develops in response to experience and I do not claim to foresee what that experience may show, but it will often be appropriate to direct the jury that –

(a)the manipulation involved in this technique of investigation has the capacity to undermine the probative value that might otherwise be given to a confession;
(b)a person who believes that it is in his or her interests, and safe to do so, may well make an untrue statement; and
(c)the jury should consider any explanation for the confession put forward by defence counsel or by the accused in the course of his or her evidence or record of interview.[10]

[10]Compare Re Applications by Chief Commissioner of Police (Vic.) (2004) 9 V.R. 275 at 289 [33] and R. v. Marks (2004) 150 A.Crim.R. 212 at 226 [81].

As in R. v. Grech[11], those are not intended as model directions but as guides to the substance of what is likely to be required. The strength of directions to the effect of (a), (b) and (c) in [7] may well depend on the circumstances of the instant case.
[11][1997] 2 V.R. 609 at 614.

Uniform Evidence Act

Section 85(1) and (2) of the Evidence Act provides:

“(1)This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:
(a) in the course of official questioning; or
(b)as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

(2)Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. “

The expression “another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued” may be narrower than the concept of “a person in authority” as understood by the common law, but s.85(1)(b) appears to make the knowledge or perception of the defendant irrelevant: if an admission is, in fact, made as a result of an act of such a person, evidence of the admission is not admissible unless the test in sub-s.(2) is satisfied.

It is important to understand that, if s.85 is adopted in Victoria without modification, a case such as this and the other four cases that were heard with it might be decided differently. They would certainly have to be analysed differently. For example, if a person in authority[12] is capable of acting through an agent (and it is difficult to see why that should not be so[13]), an admission may be made by a defendant as a result of an act by a person in authority behind the scenes controlling the covert operatives.[14] At common law, other things being equal, such an admission would still be regarded as admissible, because the defendant would not be aware of the existence, or the role, of the person in authority.[15] It might not be admissible under s.85.
[12]I am using this expression as convenient shorthand for a person described in s.85(1)(b).
[13]Quite apart from ordinary legal principles, if it were not so, a member of the police force or other person in authority could easily circumvent s.85.
[14]In some cases the covert operatives themselves might satisfy the description in s.85(1)(b).
[15]At common law it is the effect on the mind of the confessionalist that matters: see [172]–[173] below. That is why it has been unnecessary in these five cases to consider whether the controller of the covert operatives was a person in authority.

Questions on Voir Dire

In R. v. Hammond[16] the accused was asked on the voir dire whether the impugned confession was true. He said that it was. After further questions, he was asked the following questions and gave the following answers:
[16][1941] 3 All E.R. 318.

“What you are now saying is that you were forced into saying what was true by something that was done. Is that right? – Yes, sir.
So you did kill Mr Roberts? – Yes, sir.”

The trial judge held that the impugned confession was voluntary, it was admitted in evidence and the accused was convicted. The English Court of Criminal Appeal refused leave to appeal against conviction for the following reasons:
“This appeal is brought on the sole ground that the question which was put by counsel for the prosecution in cross-examination of the accused was inadmissible. In our view, it clearly was not inadmissible. It was a perfectly natural question to put to a person, and was relevant to the issue of whether the story which he was then telling of being attacked and ill-used by the police was true or false. It may be put as it was put by Viscount Caldecote, L.C.J., in the early part of the argument of counsel for the appellant, that it surely must be admissible, and in our view is admissible, because it went to the credit of the person who was giving evidence. If a man says, ‘I was forced to tell the story. I was made to say this, that and the other,’ it must be relevant to know whether he was made to tell the truth, or whether he was made to say a number of things which were untrue. In other words, in our view, the contents of the statement which he admittedly made and signed were relevant to the question of how he came to make and sign that statement, and, therefore, the questions which were put were properly put. They were admissible, and they could not, therefore, have wrongly affected the mind of the judge.”

Their Lordships went on to point out that, in any event, the trial judge had not decided on the admissibility of the confession as a result of the admission made by the accused on the voir dire.

The Court did not say that a confession that was not shown to be voluntary might nevertheless be admitted because it was true.[17] Although their Lordships said that the questions asked went to the credit of the accused, the example they gave and the rest of the passage I have set out in [11] above show that they considered that the questions went to the issue on the voir dire, namely whether the impugned confession was voluntary.[18] That is how R. v. Hammond was understood by Barwick, C.J., Gibbs and Mason, JJ. in Burns v. R.[19] Their Honours said that, in R. v. Hammond, the Court of Criminal Appeal took the view “that evidence that showed that a confession was true was relevant to the question whether the confession was voluntarily made”. They referred to cases in Tasmania and Canada[20] where a similar view had been taken, as well as to its having been suggested that there are strong discretionary reasons why the judge should prevent the accused from being cross-examined as to his or her guilt. The passage that followed shows that they accepted the reasoning in R. v. Hammond[21] or at all events were prepared to say that it supported their conclusion.
[17]Compare Wong Kam-Ming v. R. at 256–257.
[18]I confine these observations to the issue of voluntariness on a voir dire. As Davies, J.A. and Mullins, J. pointed out in R. v. Semyraha [2001] 2 Qd.R. 208 at 209 fn.3, there may be other issues on the voir dire, such as the fairness of admitting the confession. See also R. v. Schaeffer [2005] VSCA 306 at fn.21.
[19](1975) 132 C.L.R. 258 at 263. See also Jacobs, J. at 265 and Murphy, J. at 269.
[20]R. v. Toomey [1969] Tas.S.R. 99 and DeClercq v. R. [1968] S.C.R. 902.
[21]In MacPherson v. R. (1981) 147 C.L.R. 512 at 524 Gibbs, C.J. and Wilson, J. said that Barwick, C.J., Gibbs and Mason, JJ. had “agreed with the view taken in R. v. Hammond that evidence that shows that a confession, if made, was true is relevant to the question whether it was made”. That appears to be a reference to a passage further down on 263 in Burns v. R. where the reasoning in R. v. Hammond was applied to evidence at the trial.

Three years later, in Wong Kam-Ming v. R., the majority of the Privy Council held that R. v. Hammond was wrongly decided.[22] Their Lordships answered the question, “During the cross-examination of a defendant in the voir dire as to the admissibility of his challenged statement, may questions be put as to its truth?”, “No”.[23] Lord Hailsham dissented. He deprecated the practice of asking the accused, almost as a matter of course, whether the confession was true but pointed out that there are cases in which truth is relevant to the issue of voluntariness. All the members of the Board considered that, if a confession were admitted and the accused gave evidence before the jury, he could be cross-examined on statements he had made on the voir dire. In MacPherson v. R. Gibbs, C.J. and Wilson, J. said that both the points dealt with in Wong Kam-Ming v. R. remained to be decided by the High Court[24]. Mason, J. accepted that, where the confession is admitted, the accused can be cross-examined on discrepancies between his answers given on the voir dire and the evidence he gives before the jury.[25]
[22]That is what their Lordships said at 257, sed quaere. It will be recalled that the trial judge did not decide on the admissibility of the confession in R. v. Hammond as a result of the admissions made on the voir dire.
[23]At 254-255 and 257. The passage at 257 shows that the majority went so far as to say that there was no case in which the prosecution could properly cross-examine the defendant on the voir dire regarding the truth of his challenged statement.
[24]At 524.
[25]At 535.

Unqualified answers to general questions that may present themselves in a variety of different contexts invite criticism. There is room in the law for black and white rules and “bright line” distinctions but, as Lord Hailsham said in his dissenting opinion, questions of relevance can seldom be decided a priori. The decision of the majority has been cogently criticised, first by Brinsden, J. in Frijaf v. R.[26] and more recently by Davies, J.A. and Mullins, J., in whose reasons McPherson, J.A. agreed, in R. v. Semyraha.[27] Both Lord Hailsham’s dissent and the Western Australian and Queensland judgments repay study and would provide a useful starting point if this Court had to determine the exact status of Wong Kam-Ming v. R. since the abolition of appeals to the Privy Council.[28] Although there was reference to this topic in the course of hearing these five cases, there is no need to decide it.
[26][1982] W.A.R. 128 at 147–149. Compare Wickham, J. at 134 and Wallace, J. at 144-145.
[27]At 209 [5]–[12].
[28]In 1981 Brinsden, J. accepted Wong Kam-Ming v. R. as binding. In 2000 the Queensland Court of Appeal plainly did not. In Grimley v. R. Martin, C.J., Mildren and Thomas, JJ. said that they were not satisfied that it was of universal application in Australia. I should not think that any Victorian judge would be bound by a decision on appeal from Hong Kong in 1978 reversing a previously understood rule of practice and procedure that had been accepted to the extent it was by the High Court in Burns v. R. See fnn.19 and 21 above. For an even more unqualified view of the position since the Australia Acts, see Hawkins v. Clayton (1986) 5 N.S.W.L.R. 109 at 136–137 per McHugh, J.A. in dissent, especially at 137E.

As at present advised, I think it would be open to a trial judge to permit questions as to the truth of a confessional statement, or at least parts of it, to be asked

on the voir dire if the prosecutor demonstrated both that the questions were relevant to voluntariness and that they needed to be asked in order properly to test the evidence given by the accused in the particular circumstances of the case.[29] If the judge did admit the statement and it was held on appeal that the majority view in Wong Kam-Ming v. R. was correct, it would not follow automatically that there had been a “wrong decision of any question of law” within the meaning of s.568(1) of the Crimes Act. That expression refers to a wrong decision on a question such as whether a particular piece of evidence is admissible and not to an error in the chain of reasoning leading to such a decision.[30] If it were otherwise, the proviso would too readily be engaged.[31]

BUCHANAN, J.A.:

[29]It is a separate question whether cross-examination should then be permitted, in accordance with the second part of the decision in Wong Kam-Ming v. R., if the statement is admitted and the accused gives evidence before the jury. If that part of the decision is correct, there would still be a discretion not to permit such cross-examination.

[30]The “wrong decision” of which s.568(1) speaks must be such that, subject to the possible application of the proviso, the judgment of the trial court should be set aside. That would not be so if there were no more than an error of law in a chain of reasoning leading to a decision that was itself correct.

[31]See, for example, R. v. Hill [2006] VSCA 41 at [1].

I would refuse the applicant’s application for leave to appeal against his conviction for the reasons stated by Vincent, J.A. I also agree with the observations of Callaway, J.A. with respect to the evidence of propensity constituted by the applicant’s participation in the apparently illegal activities arranged by the undercover police officers.

VINCENT, J.A.:

This applicant was found guilty by the jury empanelled in his trial of the murder, on 20 June 1999, of Belinda Loree Romeo.

He has sought leave to appeal against that conviction on the following grounds:

1. The learned trial judge erred in:
(a)not ruling as inadmissible the evidence of what the Crown asserted were confessional statements made by the applicant to:
(i)covert police operative “P” on 17 March 2002...;
(ii)covert police operative “M” on 17 March 2002
on the basis of involuntariness; or, in the alternative,

(b)not excluding in the exercise of his discretion the evidence of what the Crown asserted were confessional statements made by the applicant to:
(i)covert police operative “P” on 17 March 2002...;
(ii)covert police operative “M” on 17 March 2002; and, as a consequence,

(c) not ruling as inadmissible:
(i)the evidence of the [second] Record of Interview conducted with the applicant on 18 March 2002;
(ii)the evidence concerning the work of covert police operatives with respect to carrying out the various “scenarios”, including the evidence of the Crown witness Detective Senior Sergeant Mark Robert Caulfield; and
(iii)the evidence of the covert police operatives carrying out the various “scenarios” with the applicant and the conversations with the applicant whilst carrying out these scenarios.

The Background

The deceased, who was approximately 24 years of age at the time of her death, was severely hearing impaired and suffered learning difficulties. She derived some income from hand delivering copies of “Melbourne Weekly” magazines, bundles of which were delivered to the complex in which she lived, each Monday and stacked inside the front door. In order to earn additional money, she engaged in prostitution. In that activity and socially, she used the name “Daniella”.

Ms Romeo resided in a set of units in Prahran operated by the local council to provide housing for persons with disabilities. The building was secured with a permanently locked front door and entry could be gained by pushing a button which triggered a loud buzzer. This would alert the residents, one of whom would then respond. Otherwise entry was achieved by using the key issued to each tenant.

The deceased’s mother, Kim Romeo, who maintained regular telephone contact with her, stated that about five or six weeks prior to her death her daughter told her that she had met a person called “Alipapa”. Over that five or six week period, Mrs Romeo spoke to her on a number of occasions. On one of them, the deceased said that she had arrived home one afternoon after shopping and was disturbed to find “Alipapa” inside her flat.

Between September and December 1998, Robert Anthony De Sarro made contact with the deceased through a telephone introduction service. He then visited her at her flat on two occasions. In about April 1999, De Sarro telephoned Ms Romeo late one evening and then went to visit her. On arrival, he saw a dark skinned man, who appeared to be aged between twenty-two and twenty-six years, leaning against the corridor wall outside her door.

The deceased’s next door neighbour, Bernadette Canny, stated that in the two months prior to 20 June 1999, the applicant became a regular visitor. Normally he would press the front door bell and one of the other tenants would admit him. However, in the evenings, he often had to persist before anyone responded. Canny recalled an occasion on which the applicant entered the rear yard and knocked on the windows of other flats, including that of Canny, as well as the back door of the building. In order to gain entry to the rear yard, it was necessary to climb over a fence.

Madeleine Prasad was a friend of the deceased. She recalled two Saturday nights when they attended the Bridge Club in Richmond. On one of them, Ms Romeo met up with “Alipapa” and they talked for a while. In the following week, Prasad received a telephone call from the deceased who said that “Alipapa” was coming to see her. From her discussions with the deceased, Prasad concluded that Alipapa was possessive towards her and did not want her going to the Bridge Club. She told Prasad about an occasion on which the applicant had hidden her house keys and said that she had to enter and leave her flat through a window. Prasad stated that the deceased had complained that the applicant would order her to make pancakes for him.

Joyce Dianne Suniula met the applicant in May 1999 at the Bridge Club, which she attended every weekend. On that occasion, she saw him speaking to the deceased, whom she knew as “Daniella”. Suniula subsequently went to lunch with the applicant. On 13 June 1999, he borrowed her mobile telephone.

Michelle Coe met Ms Romeo at the Bridge Club in March 1999 and they became friends. Coe attended there every week, usually on Saturday nights. She became aware that the deceased was keeping company with the applicant, who was known to Coe as “Alipapa Hicks”. She last saw the deceased on or about Friday 18 June 1999 at the Footscray Hotel. Coe stated that on that night, Ms Romeo said that she did not want the applicant living with her any more, remarking that he would flirt with other women.

19 and 20 June 1999

On Saturday 19 June 1999, a male friend, Viangi Tiotala, who had met the deceased at the Bridge Club in the past, contacted her by telephone and she met him in the city. They later travelled back to the deceased’s flat, arriving there at about 3.00 or 4.00 p.m. During the evening, Ms Romeo answered a telephone call from a person she referred to as “Alipapa”. Tiotala overheard the deceased tell the caller that she did not want him to contact her again and to leave her alone. The telephone rang again and was picked up by the deceased who said “leave me alone” and hung up. This process was repeated about three or four times. Late in the evening, she left the flat, requesting Tiotala to remain there until she returned. He went to sleep and was awakened when she arrived early on the following morning.

In the meantime, Ms Romeo had attended at the Bridge Club where she met up with various witnesses, including Prasad, who recalled that the deceased wore a blue scarf with a butterfly motif.

Sarpena Peters arrived at the Bridge Club between midnight and 12.30 a.m. on that night. He was playing pool when he was approached by Ms Romeo who put a piece of paper, on which she had written her telephone number, into his pocket and asked him to ring her.

Suniula was also at the Bridge Club in the early morning of 20 June 1999 when the applicant returned her mobile telephone to her. She saw the deceased in company with Prasad and another woman and recalled that Ms Romeo was wearing a grey/blue scarf. Suniula approached her to ascertain the nature of her relationship with the applicant. The deceased requested Suniula to ask him to stop calling her and going to her flat, and to leave her alone. The two women then approached the applicant together to convey the deceased’s wishes to him. This was the first occasion on which Suniula had spoken to Ms Romeo. However, Suniula stated that the deceased did not appear to be upset.

When Prasad left the Bridge Club at about 4.00 a.m., she encountered the applicant outside. He requested her to go back into the club and to ask the deceased to talk to him, but she refused and went home.

As earlier mentioned, Tiotala was woken when the deceased returned to her flat in the early morning. He left at about 8.00 a.m.

At about midday on the same day, after attending a Sunday morning rugby match, Joe Poe went to the home of his sister and brother-in-law, Pou Tufuga, in Sunshine. Among those whom he found to be present in the house was the applicant, whom he recalled using a telephone in the kitchen[32]. Shortly before Poe left to drive home, his brother-in-law asked him to give a lift to the applicant. He agreed and Poe was directed by the applicant to the intersection of Punt Road and Commercial Road where he was dropped off at a point approximately 150 metres from the deceased’s flat[33].
[32]Pursuant to s.149A of the Evidence Act 1958, the applicant admitted making a telephone call to the deceased’s flat from the Tufugas’ telephone at 2.59 p.m.
[33]Pursuant to s.149A of the Evidence Act 1958, the applicant admitted making a telephone call, at 4.53 p.m., to the deceased’s flat from a public telephone in Alfred Street, Prahran, which was approximately 150 metres away from the flat.

Peters also telephoned the deceased on that Sunday afternoon. This was some time after 4.00 p.m. The deceased said that he could come round to her home at some stage. However, Peters did not know where she lived and he had no further contact with her.

Renee Anne Simmons also gave evidence concerning the applicant’s movements on Sunday, 20 June 1999. She stated that at about 6.00 p.m., her boyfriend and the applicant, who had gone there to collect a bag of rugby clothes that he had left behind on the previous day, arrived at her flat in Collingwood[34]. Soon afterwards, Simmons went to play basketball. Upon returning to the flat at approximately 8.00 p.m., she found that the applicant was no longer there[35].
[34]Pursuant to s.149A of the Evidence Act 1958, the applicant admitted making a telephone call to the deceased’s flat from Renee Simmons’ telephone at 5.37 p.m.
[35]Pursuant to s.149A of the Evidence Act 1958, the applicant admitted making two telephone calls to the deceased’s flat from his home at 8.56 p.m. and 9.17 p.m. respectively.

21 – 28 June 1999

Robert Atherton made a delivery of a consignment of “Melbourne Weekly” magazines to the deceased’s complex on Monday 21 June 1999. A co-resident, Brett Leach, found that the bundles were obstructing the front entrance to the complex and moved them to a position near the deceased’s front door where they remained. Leach stated that another consignment of magazines arrived about one or two days later.

Canny, who was Ms Romeo’s neighbour, stated that she would normally speak to the deceased at least every couple of days. As she did not see or hear from Ms Romeo, or hear any sound coming from her flat in the week following 20 June 1999, Canny stated that on 28 June 1999, she contacted the Prahran/Malvern Community Housing Association to express her concern.

The deceased did not visit her father on the weekend of 19 and 20 June 1999, as earlier arranged with him, and made no telephone call to cancel the arrangement. Nor did she make any telephone calls to her mother or otherwise attempt to contact her.

29 June 1999

On Monday 29 June 1999, Mrs Romeo went to the complex at about 11.50 a.m. She had a spare set of keys. She noticed bundles of Melbourne Weekly magazines inside the front door of the complex and further bundles blocking the doorway to her daughter’s flat which she moved to one side. She entered the flat and went to Ms Romeo’s bedroom. On seeing her daughter’s feet protruding from her bed, she immediately went to Canny’s unit where Canny contacted the police.

On examination of the flat, police found no sign of forced entry or of a struggle having taken place, but various blood stains were located. The crime scene examiner, Senior Constable Hradek, retrieved items of clothing from a plastic basket in the bathroom, including a blue top. No set of keys, which operated the locks relevant to the premises, were found in the building or in the surrounding area. The ringer switch of a fixed line telephone found in the unit, was in the “off” position. The telephone memory recorded ninety-nine unanswered calls[36]. No money was found.
[36]This was the total number that the memory could hold before it started automatically deleting the least recent calls.

Forensic Examination of the Deceased’s Body

Dr Shelley Robertson, a forensic pathologist, performed an autopsy upon the body of Ms Romeo. She gave evidence that it showed signs of moderately advanced decomposition, consistent with Ms Romeo having been dead for several days. There was a double ligature mark encircling the front of the neck consistent with the application of a thin scarf. Other injuries included a bruise to the right hand side of the jaw consistent with the deceased having been struck with a closed fist at or before the time of death; an abrasion below the main ligature mark on the front of the neck consistent with the application of someone’s finger or fingernails at the time the ligature was applied[37]; a round, small, red bruise on the lower right mandible consistent with the application of blunt force by a punch with a closed fist or with falling to the floor; and a faint bruise on the front of the left upper arm consistent with a finger grip. A series of small bruises were found on the front of the lower leg that had many possible causes; and the deceased had sustained a fracture of the posterior horn of the hyoid bone immediately above the larynx with bruising around the area of fracture. Dr Robertson stated that it would take considerable force to produce this type of fracture of the hyoid bone in a person of Ms Romeo’s age.
[37]That injury, she considered, could only have occurred while Ms Romeo was still alive.

Dr Robertson found no evidence of sexual assault and concluded that the deceased had died by ligature strangulation.

Questioning of the Applicant

The Informant, Detective Senior Sergeant McIntosh, first spoke to the applicant about this matter at 11.15 p.m. on 30 June 1999, in the Homicide Squad Office.

On 14 July 1999, McIntosh attended at the applicant’s workplace. The applicant was then conveyed to the Homicide Squad Office where he made a statement, the content of which can be summarised as follows:

The applicant met the deceased at the Bridge Club halfway through March 1999. He knew her as “Daniella”. They commenced a sexual relationship. The applicant moved into the deceased’s unit the day after they had met and remained there for two weeks. He then left the unit and returned to his relatives’ premises in Carlton. His reason for leaving was that he missed his family who lived at the Carlton address and he was fearful that the deceased’s father would be angry that she was living with a man. He had never been given a key to the deceased’s unit and to gain entry he would telephone her from a nearby telephone box and request that he be admitted. The last time that he saw Ms Romeo was on the morning of Sunday 20 June 1999 at about 2.00 a.m. at the Bridge Club. At that time she invited him to her unit. As he was still drinking with his friends, he did not accept the invitation. He believed that the deceased left at about 4.00 a.m. He asked her what she would be doing on the following evening. She told him not to call in as she was having a friend over for dinner and invited him to visit her on the next night. The applicant remained at the Bridge Club until about 9.00 a.m. before leaving with friends and travelling to Footscray to attend a party. He left that party at approximately 6.00 p.m. and travelled to a friend's premises in Collingwood. He walked home to Carlton at about 9.00 or 10.00 p.m. and slept until 7.00 a.m. the next morning. He attempted to telephone the deceased when he arrived home on the night of 20 June 1999 but her telephone was not answered. He repeatedly attempted to ring the deceased over the following week with no result. He stated that the deceased wore pyjamas to bed. He had had sexual intercourse with Ms Romeo in the week preceding 20 June but not on the night of Friday 18 June, when he stayed the night. He did not wash any dishes in the flat on that night. The last time he was present in the deceased’s flat was on Saturday 19 June 1999 at 9.00 a.m. when he left to play rugby.

To confirm the applicant’s claim that he did not have a set of keys to Ms Romeo’s unit, he was asked for his permission for a search of his cupboards to be undertaken. Investigators then attended the applicant’s home and made what was described as a cursory examination of his room. McIntosh noticed a couple of newspapers bearing reports of the deceased’s death. Nothing was taken from the premises on that occasion and no relevant keys were found.

Simmons stated that about two weeks after 29 June 1999, the applicant came to her home. He produced two copies of the Herald Sun newspaper and showed her articles relating to the death of Ms Romeo. He said that he had been spoken to by the police about this matter. He told Simmons that his girlfriend had been strangled and that the police had told him that she worked in a brothel.

In the course of their investigations, on 29 June 1999, the police searched an apparently abandoned motor car in a parking area at the rear of the complex in which the deceased resided. Inside the vehicle, the police officers found a thin light blue scarf with blood stains.

David Gerard Moore, the registered owner of this car, stated that it had been broken into in April/May 1999 and that the thieves had smashed the driver’s side window. The matter had been reported to the police. In order to protect the vehicle’s interior, he had placed a deflated airbed over the broken window. He checked the car everyday, as he lived nearby, but usually in a cursory fashion. Moore gave evidence at the trial that he had never seen the scarf discovered by the police in his vehicle and that, at the time he made his statement to the police in 1999, he was not told that one had been found.

Arrest and First Interview – 29 July 1999

On Thursday 29 July 1999, the applicant was arrested and a search was conducted at his home from which the police took a number of articles, including the clothing that he said he had been wearing on Sunday 20 June 1999, some other items that appeared to be blood stained and a green Collins’ brand diary[38].
[38]One entry read:
“We met on Sunday morning at the Bridge Club on 19” then a cross out “We lived together from that day”, another cross out “until 2 weeks when I changed my mind to move back home”. On the next page was the inscription: “Belinda’s birthday on 22 July We planned to go out and have a party and I going buy a nice present for her. She want microwave”.

The applicant took part in a videotape-recorded interview at the Homicide Squad Offices. The content of that interview can be summarised as follows:

He confirmed the contents of the statement he had made on 14 July. He maintained that he had not travelled to the deceased’s premises on Sunday 20 July 1999 and he had been dropped off at his friend’s home in Wellington Street, Collingwood. The police put to him Poe’s statement that the applicant had been dropped off at the intersection of Punt Road and Commercial Road, Prahran. He responded that he must have forgotten what had happened. He agreed that he made a telephone call to the deceased’s home from a telephone located in the vicinity. Initially he stated that he did not speak to the deceased and then that he had done so and was told not to go to the flat at that time. He caught a tram to Collingwood. He had last slept with the deceased on Friday 18 June 1999. They had a meal of Italian pancakes with lemon and drank lemonade. The applicant and the deceased went out that night with friends to the city and returned home at about 3.30 a.m. On most occasions he would attend the deceased’s home after 11.00 p.m. when she had finished work. He would telephone first and then come to the front door and ring the bell. She would then admit him.
On the morning of Saturday 19 June 1999, he went to his home to collect his equipment and he played rugby that day. After the game, he remained at the rugby club drinking with fellow members. At about 3.00 a.m. on Sunday 19 June 1999, he attended the Bridge Club in Richmond. He saw Prasad outside and spoke with her for about ten minutes. She told him that she was going home and was catching a taxi. Madeleine was attempting to cause trouble between the deceased and him. He entered the hotel where he saw and spoke to the deceased and other people. He did not return to her flat that morning.

Scenario Evidence

It appears that there was no further fruitful avenue of investigation open and that little progress was made in the investigation for almost two years until the Informant approached the Police Undercover Unit. “Operation Pink” was then mounted and ran from 21 November 2001 to 18 March 2002. The police constructed a series of sixteen “scenarios” in which undercover operatives, posing as members of an organised criminal gang, interacted with the applicant[39].
[39]A chronology of these scenarios was tendered during the trial as Exhibit ”T”.

During his evidence, Detective Senior Sergeant Mark Caulfield, who was in charge of the team, indicated that he was provided with only basic information about the circumstances surrounding the death of Ms Romeo and very little was given to the covert operatives. This course was adopted to prevent any leading questions being asked by operatives that might affect the reliability of any admissions they obtained and to ensure that they did not inadvertently disclose to the applicant that they knew anything about the matter. The operatives were required to report everything that they were told without knowing whether any statement made by the applicant, was relevant or of value.

The early scenarios involved approaches or meetings in which the operatives made themselves known to the applicant. They then proceeded to offer opportunities to participate, at a low level, in criminal activities in return for small cash payments, with the promise of greater rewards if he was accepted as a member of the gang.

The process included the placing of considerable emphasis on a code of truth, honesty and loyalty that was asserted to exist between all gang members and which required complete honesty with respect to any past crimes and activities in which they had been involved and which potentially could cause problems for the group or the individual concerned. The applicant was told that the gang had connections with corrupt police members, sufficient influence to prevent a person being charged with a criminal offence and the ability to have any continuing police investigation curtailed.

There is no need to set out the detail of the various techniques employed to induce in the applicant a sense of confidence that association with the gang would be to his considerable benefit both in terms of financial and personal rewards and the ability of the gang leader to protect him against police investigation. They involved the establishment of personal relationships and the commission of staged crimes of a quite serious character. One of the scenarios, for example, to which I need to return, involved the apparent theft and subsequent disposal of a quantity of diamonds. The applicant was present when the sum of $10,000, represented as his share of the proceeds if he were accepted as a gang member, was placed into a safe deposit box.

On what appears from the material to have been the seventh contact, the first possible mention of the murder of the deceased was made by the applicant. One of the operatives, “P”, and the applicant conversed[40] as they were driving past the Richmond Police Station. The applicant mentioned that he had been to that station as a result of carrying an invalid public transport ticket. “P” reiterated the code that gang members did not lie to each other, but “we tell the cops nothing”. The applicant replied, “Nothing, that’s right. That’s what I’m doing, I want to protect myself.” He then remarked:

“I should be in jail for a long time, a couple of years ago (inaudible) …I’m smart (inaudible) you know? I should be in jail for a long time, you know what I mean? (inaudible) … Protecting myself (inaudible) … Cause I won’t tell them noth, you know tell the truth, I told them nothing - … (inaudible) Okay they leave me alone … .”

[40]The conversation was recorded as Track 1 on Exhibit “F”, which was tendered during the course of the trial.

As part of the process of manipulation of the applicant, he was taken by “P”, on 1 March 2002, to the Grand Prix for the purpose of meeting “the boss”, “M”. He also met “M’s right hand man”, “T”, and another person, “R”, an operative posing as a corrupt police member. A conversation took place between the applicant and “T”, after the applicant had finished talking with “the boss”. “T” enquired about the girl concerning whose death the applicant had been interviewed. The applicant told him that the police had taken his fingerprints and a DNA sample and that she had been strangled. At that point, “T” said that he did not want to talk about the matter and they moved on to another topic. The operative stated that he terminated this discussion, as he realised that there was no tape recording being made of their conversation.

“M” also spoke to the applicant on that day. He advised him that he was being “checked out” by the gang, using a corrupt police member. They discussed the possibility that the applicant could assume “P’s” role in the group, emphasizing their motto of trust, loyalty and honesty. The applicant told “M” that he wanted to be a member and expressed interest in assuming “P’s” role.

In a later conversation with “T”, which was recorded, the applicant told him about a woman with whom he had lived and who had been killed. He said that this woman was a prostitute. “T” asked the applicant whether he had been going out with her. The applicant said that he had, but was not doing so by the time of her death. He said that he did not know that she was a prostitute and that she had told him that she worked as a chef[41].
[41]Exhibit “F2”.

On 6 March 2002, after participating in a staged criminal activity that involved the apparent beating of a female prostitute and the demanding, with menaces, of money from her boyfriend, “P” and the applicant went to an hotel. “P” raised the subject of the applicant’s past problem. The applicant said, “I had a problem but I’m clean now.” “P” responded “If there’s any problem, we’ll sort it out”. The applicant related some matters about the deceased and the investigation into her death, indicating that police had gone to his work place “every day” for a period. “P” assured him that he could be protected, saying, “we will make sure that there’s no problem” and “my boss will make sure there’s no problems for you”. The group had their “own cops” who could “fix” things. When asked when this “problem” had arisen, the applicant responded that it was about three years previously. His fingerprints and his DNA had been taken and the police told him that the girl was a prostitute.

Towards the end of that meeting, the applicant provided personal details (his proper name and date of birth) so that a check of his background could be made by a corrupt police officer with whom “the boss” was associated.

The scenario involving a burglary in which diamonds were purportedly stolen from a safe, was staged on 11 March 2002 (I have already referred to this episode.). On this occasion, the applicant was given the task of keeping watch from a bus stop. He was provided with a mobile telephone and told to ring if any police presence was detected. Coincidentally, a patrol car containing police members, who had no knowledge of the scenario, did pass by. They stopped and spoke to him. He told them that he was waiting for a friend to pick him up, as he had just finished work. They then left. The applicant’s handling of this situation received the approbation of his associates.

Upon the completion of the burglary, “T” and the applicant drove together to a “safe house” in St Kilda. “T” asked about the problem that the applicant had mentioned he had earlier had with the police. The applicant complained that they had gone to his work place everyday and taken him away for interviews. He said that he had lived and slept with the girl who had been killed for about two weeks and was not aware that she was working as a prostitute. He stated that the police stopped coming and that he did not know what happened thereafter. He believed that they thought he had killed the deceased, but he had told them the truth. “T” confirmed that the applicant was still being “checked out” and they were awaiting the completion of these enquiries. “T” asked him whether he was aware of the manner in which the deceased had met her death and he responded that someone had strangled her. “T” told him that they would be seeing “the boss” later that night and that he would be very happy about the success of the burglary. “T” assured the applicant that he would be looked after, and asked whether there was anything else that they needed to know about him. The applicant said that he did not have a driver’s licence. “T” told him that this too could be fixed. When further asked about the death of the deceased, the applicant said that she had died in a flat in South Yarra and he described the security arrangements for Ms Romeo’s flat.

After leaving the “safe house”, “P” and the applicant drove to the applicant’s home. On the journey, the applicant told “P” that he had met the deceased at the Bridge Club and she had given him her telephone number. He said that, after making contact, he went to her flat and they had sex. He remained with her for about two weeks. He believed that she was working as a chef in a restaurant, but, after the police became involved, he learned that she worked in a brothel. He said that the police had told him that someone had strangled her. When “P” asked him with what she was strangled, he replied that he did not know. “P” repeated that they were still awaiting the results of the police checks into his background and that the applicant had to be careful and to think about whether he had told them the entire truth. He reminded the applicant of the $10,000 in the safe deposit box, pointing out that it was a large sum.

On 14 March 2002, “P” and the applicant met the “corrupt policeman”, “R”, who said that a difficulty had emerged concerning the check that he was conducting. The applicant enquired as to the nature of this problem and “P” told him not to worry about it.

On 16 March 2002, “P” received a telephone call from the applicant at 11.46 a.m. The applicant asked “P” whether he could call in at the applicant’s home because he wanted to show him something. The applicant told him that when he returned from work, he found a document from the police underneath his door. “P” asked him what it was and whether it was about him (“P”). The applicant said, “No, the other thing”. “P” asked “what?” The applicant replied, “three or four years ago”.

The applicant read the document over the telephone.[42]
[42]It was a copy of an application for an order directing the applicant to undergo a compulsory procedure and provide a blood sample and buccal swab.

“P” told the applicant that the document meant that the police wanted his DNA, pointing out that he had previously said that a sample had already been supplied. The applicant responded that he had only given fingerprints and that he had told “T” something about some clothing that the police had collected.

The applicant requested “P” to advise him about the document. “P” said that he could not see him until about 4.00 p.m.

“P” attempted unsuccessfully to contact the applicant by telephone at 4.50 p.m. He then received a voicemail message at about 5.15 p.m. advising that the applicant was going to a friend’s home.

On 17 March 2002, at about 12.48 p.m., “P” received a telephone call from the applicant informing him that he was at a friend’s home in Wattle Park. “P” told him that the “boss” was flying down from Queensland and that he had spoken to him on the previous evening. “P” and the applicant arranged to meet later at the applicant’s home.

At about 2.14 p.m., “P” picked up the applicant, as agreed, and they went to a park in East Richmond. The applicant had with him the Notice of Application served by the police[43]. “P” confirmed that the gang leader would arrive in Melbourne later that day to talk to him. He said that, if the applicant had killed the deceased and his DNA incriminated him, he had better tell “the boss” immediately so that they could do something about it. “P” emphasised that it was vital for him to tell the truth, if he wanted “the boss’” protection.
[43]The conversation which took place on this journey was recorded and its transcription tendered as Exhibit “G1”.

The applicant then told “P” that Ms Romeo and he had argued:

“ … and she 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”.

He said that he entered the building after the deceased had admitted him and that he had strangled her with something that she wore around her neck.

“P” told the applicant that his problem could be handled, and that he would speak to the “boss” about it. The applicant would then be able to discuss the situation with “the boss” and a method of dealing with it would be devised. The applicant was congratulated for having finally disclosed what he had done. He was told that it was now known that he could be trusted.

The applicant told “P” about the investigation that had followed the death of the deceased and the answers that he had given to the police at the time. In the course of their conversation “P” repeatedly asserted that “the boss makes problems like this go away”. “P” then made a telephone call to Detective Senior Sergeant Caulfield and purported to be speaking to “the boss”. He related what the applicant had told him. During this conversation, “P” asked the applicant to confirm that he had strangled the deceased and with what. The applicant said that he had and with something that she wore around her neck. “P” suggested “Like a tie thing or something?” The applicant agreed and said that he did not know the English language word for the article.

They arrived at Crown Casino, where the meeting with “the boss” was to take place, and met operative “D”. The applicant was taken to a room in the Crown Towers Hotel where “M”, posing as “the boss”, and “T” were present[44].
[44]The meeting in the Crown Towers Hotel room was videotape-recorded. A transcript of the conversation was tendered as Exhibit “H1”.

“P” explained that the applicant had told him that he had had an argument with a girl and then asked, “What did you say, you said you’d strangled her?” The applicant replied, “Yeah”.

“P” asked, “With something, what?” The applicant said, “I just strangled with that, that thing, I forgot to say in English, like the girl I was like – it’s like a … .” “M” said, “Like a tie thing or something?” The applicant responded, “Yeah, like girls they usually put round their neck, make good looking”. “P” left the meeting, leaving the applicant alone with “M”.

“M” said that he was expecting this disclosure, as he had had the applicant “checked out” by a corrupt police officer and had learned that he was a prime suspect for a murder.

The applicant told “M” that he killed the deceased on a Sunday afternoon at about 5 or 6 o’clock, because they had an argument and she had made him very angry. He said that he had strangled her with a thin scarf and that she struggled for a short time. He then hid the scarf in an old car parked at the rear of the building where she lived. He did not know if the vehicle was still there and did not think that the police would have found the scarf as he had heard nothing about it since that time. He said that he had provided his fingerprints and that the police had taken his clothing, but that he did not give a blood sample. When asked whether any of his blood was in the flat, the applicant said that there was not and that, if there was any blood from the deceased in the premises, it would have been on the carpet. He said that she bled only slowly. No one saw him enter the flat and he thought that no one saw him leave or hide the scarf. Before going to the flat, he called the deceased from a public telephone near a milk bar about one hundred to one hundred and fifty metres away. He went to the main entrance of the block and she admitted him. He took some food with him in a plastic container, which he left behind. He said that he had sexual intercourse with the deceased and that he had been drinking beforehand. He put the clothing that she was wearing into a washing basket in the flat because there was blood on it. He did not wipe his hands on anything. He took some handcuffs from the flat and threw them away. He did not take any money and he did not know whether there was any there. He took the deceased’s keys and placed them inside a corned beef can that he disposed of in a rubbish bin. He then went to a friend’s home in Collingwood by taxi, although he said that he had told the police that he went to Collingwood by tram. When asked whether he had informed anyone else of what he had done, the applicant said that the only persons he had ever told about it were “P” and “M”. The applicant stated that the deceased had bled from her mouth and her nose. “M” asked him whether she had put up a fight. He responded that she did not because he was too strong. He had checked to ascertain whether she was dead before he left. He did have a key to the deceased’s flat, but had not taken it with him on that occasion, and he disposed of it along with the keys he had taken. The car into which he had thrown the scarf had flat tyres and a broken window with plastic over it. He did not know whether the police had found the scarf or not. The scarf was still on the deceased’s neck when he argued with her and became angry. He removed her clothes as there was blood on them. He then dressed her in a night gown and pulled the bedclothes or blanket over her. He withdrew the telephone plug before he killed the deceased, knowing that he was going to strangle her and in case someone telephoned while he was still there. However, he may have replaced it before he left. He knew the deceased as “Daniella”, but the police told him that her real name was “Belinda”.

After “M” made a telephone call, “P” returned to the hotel room. It was suggested that “P” take the applicant downstairs for a drink with “the boys” while “M” made some calls[45].
[45]The recording tendered as Exhibit “G” ends with “P” and the applicant in a noisy and crowded bar at the Crown Casino.

The applicant was subsequently dropped off at his home. “P” told him that he would ring him on the next day.

The Informant, Detective Senior Sergeant McIntosh, stated that on 15 March 2002, he served the Notice of Application earlier mentioned by pushing it under the door at the applicant’s home. He further said that, apart from the provision of an initial briefing to Detective Senior Sergeant Caulfield, he had no dealings with the undercover operatives in this matter until the morning of 17 March 2002 when he became aware that “M” was involved and posing as “the boss”.

At 1.30 p.m. on the following day (18 March 2002), the applicant was arrested at the Metropole Hotel in Brunswick Street, Fitzroy. He was taken to the Homicide Squad Office where a tape-recorded interview[46] was conducted, in the course of which he was shown the scarf found in the car at the rear of the deceased’s block of units. He denied having seen it before, as well as ever having seen the deceased wearing it. He agreed that when he was arrested, he was with “P”, whom he claimed to have met a couple of months before at a work-related Christmas party. The applicant was asked whether he had spoken to anybody and confessed to the murder of the deceased. He denied having done so. When asked what he had done on the previous day, he claimed that he had remained at home except for a period when he went to eat at the Salvation Army Centre in Gertrude Street, Brunswick. He denied attending Crown Casino. The recording made of the conversation between the applicant and “M”, on the previous day, was played to him. He identified his own voice and the other voice as that of “the boss”. When asked whether he knew the identity of “the boss”, the applicant replied, “I don’t know if he’s a cop or not”. The applicant was informed that “M” and “P” were policemen and was asked whether his statements to them, about strangling the deceased, were true. The applicant replied, “Yes”. He was then asked, “So did you strangle Daniella?” The applicant replied, “No, I didn’t strangle her.” He said that he decided to pretend that he had committed a murder so that he could work in the gang and he fabricated what he had told them.
[46]A videotape recording of the interview was tendered as Exhibit “P” and its transcript as Exhibit “P1”.

It was put to the applicant that he had told operatives about throwing the scarf into the car at the back of the block of units. He was asked how he could explain how he knew where the scarf had been found, if this was all an invention. The applicant declined to comment.

It was pointed out to the applicant that he knew that a plastic container of food had been left behind in the flat; that the deceased’s clothing had been put into a laundry basket; and that she was dressed in pyjamas. The applicant declined to comment further.

Summary of Applicant’s Evidence and Cross-examination[47]

[47]The applicant gave evidence which was transcribed at pages 1012 – 1121 and 1134 and 1138 of the trial transcript.

The applicant gave evidence at the trial.

Examination-in-chief

He stated that, in 1999, he resided with relatives named “Hicks”. He met Ms Romeo at the Bridge Club and she gave him her telephone number. He made contact and they lived together for about two weeks. He moved out because his cousin was upset about his absence from their home; he was missing his family; and he was concerned that the deceased’s father would object to her living with a man. However, he continued to visit her and maintained a sexual relationship with her. He played rugby at Box Hill on Saturday 19 June 1999. In the preceding week, he had stayed at the deceased’s flat from Monday until the Saturday morning. On that day, he took his bags and went to play rugby. After the game, he commenced drinking at a local club. Eventually, in company with fellow members, he went to the Bridge Club. He recalled seeing Joyce Suniula and returned a mobile telephone that he had borrowed from her. He was drinking with his friends, when someone told him that the deceased was looking for him. He located her and they started talking. She wanted the applicant to go home with her but he refused, indicating that he wanted to continue drinking with his companions. However, he told her that he would visit her on the following day. The applicant and his friends left the Bridge Club when it closed at about 7.00 a.m. and went to a local souvlaki shop. At about 9.00 a.m., after purchasing some alcohol from a bottle shop in Carlton, they went to Footscray and drank at a friend’s home before continuing on to a party in St Albans.

During the day, the applicant received a telephone call from Ms Romeo. She told him not to call in as she had a visitor. He nonetheless decided to do so because he was affected by alcohol and was reluctant to return home being aware that his cousins, who were Mormons, would not approve of him drinking on a Sunday. He made a series of calls from a public telephone in Prahran to the deceased, but they were not answered. Eventually, however, he contacted her and said that he wanted to call in and stay overnight. She rejected his request, but indicated that he would be welcome at some other time. He then caught a tram to the University in Carlton and another to Collingwood. He recalled that Renee Simmons gave him a lift back to his cousin’s home. He did not see the deceased again. Over the following few days, he made telephone calls to her flat which went unanswered. The contents of the statement that he made to the police on 14 July 1999 were true as he remembered them, and his answers in the interview conducted by them on 29 July 1999 were also true. However, the statements implicating himself in the death of Ms Romeo made to the undercover operatives, on 17 March 2002, were false. He said that he had no money at that time and believed that he needed to impress “the boss” before he could be admitted to the gang and immediately receive $10,000 in cash. He had not previously been in possession of the large amounts of money that he saw or had in his custody during the scenarios, and indicated that he was very impressed by what was presented as a very successful operation. He explained that, when subsequently interviewed, he had denied his presence at Crown Towers and that he had spoken about the deceased, because “the boys” had told him not to talk to anyone about them.

The applicant claimed that he knew about the use of a scarf to strangle the deceased from information gleaned from the newspapers, television and the police, and that he was told about the car in which it was found by “P” who said, “Ali, I guess I believe my boss believes someone killed this bitch by this scarf and dumped the scarf in the old car”. He was able to provide details concerning the plastic container of food because the police had questioned him about a container of Chinese food found in the deceased’s unit.

Cross-examination

During cross-examination, the applicant conceded that his relationship with the deceased may have commenced in May 1999 rather than in March of that year as telephone records indicated that calls placed from the applicant’s residence to the deceased’s home commenced in May. This was inconsistent with his statement to the police on 14 July 1999, but he stated that he was uncertain and had estimated the time of the commencement of the relationship by reference to a trip that he had made to Samoa at around that time.

He was asked how he could characterize his relationship with the deceased as “pretty good”, when Prasad and the Romeo family indicated the contrary. The applicant responded that their evidence was untrue and the suggestion that the deceased thought the relationship was not going well, was new to him. He insisted that his association with her was a very happy and loving one. When challenged about the absence, in his statement of 14 July 1999, of any reference to the fact that in the early hours of 20 June 1999 there had been a confrontation with Suniula and the deceased at the Bridge Club, he responded that the incident had slipped from his memory.

It was put to the applicant that, according to his statement, he spent each night from Monday 14 June to Friday 18 June 1999 at the deceased’s flat. The prosecutor asked whether he could assist the jury as to what time he arrived there on each evening. The applicant said that he was unable to recall specific times, but that the usual course of events was that he would call the deceased to let her know that he would be visiting her so that she could await his arrival and admit him.

The applicant was asked by the prosecutor whether, on 30 June 1999, he knew that the deceased was dead. The applicant replied that all that he knew was what he had learned from the police when they attended his home, as well as what had been said to him when they attended his workplace. The information given, according to the applicant, included the fact that the deceased had been strangled.

The prosecutor observed that, on Thursday 17 June 1999, there were two phone calls from the applicant’s phone to the deceased’s telephone at 11.44 p.m. and 11.45 p.m. which had a total duration of approximately 140 seconds. It was put to the applicant that in the first of them the deceased told him not to visit and hung up the phone. The applicant, the prosecutor suggested, then called back. He responded that that was not true. When queried as to the reason for the second phone call, the applicant responded that he could not remember why it was made. The prosecutor then asked the applicant whether he remembered the evidence given by Tiotala, who was present in the deceased’s flat on the following Saturday evening. The applicant stated that he did. The prosecutor observed that it was Tiotala’s evidence that he heard that the calls came from the applicant and that the deceased hung up on him. The applicant responded that the deceased never hung up on him and they had respect for each other.

The prosecutor suggested that the telephone records showed much persistence on the part of the applicant as he was calling the deceased regularly in the period before her death. The applicant responded that he called often to show her that he loved her[48]. The prosecutor then made reference to the morning of Friday 18 June on which the applicant made a call to the deceased at 7:47 a.m. that went unanswered. He asked the applicant why he would call her, if he had just spent the night with her. The applicant responded that he “just love[d] to talk to her”. Similarly, on Saturday 19 June, the prosecutor observed that, according to the applicant’s statement to the police on 14 July, he left the deceased’s home at approximately 9.00 a.m. after spending the night there in order to attend his rugby game. He then queried why the applicant would call Ms Romeo at 9.08 a.m. The applicant answered that he liked contacting her as an expression of love. A further phone call from the applicant to the deceased, on that same day at 10.16 a.m., was registered in the South Yarra area. The prosecutor questioned how it was that the applicant was still in the area more than an hour after he claimed to have left the deceased’s home to attend his game. The applicant stated that he called the deceased and she said that she was sleeping so he stopped calling her. The applicant agreed that, on that day, nine phone calls were made by him, using various mobile phones and land lines. The prosecutor then questioned why, after 20 June, there were significantly fewer calls from the applicant to Ms Romeo[49]. The applicant said that he tried to call her a few times, but as there was no answer he reasoned that she had gone overseas or was visiting her family. The prosecutor then suggested to him that he made the phone calls, after 20 June 1999, in order to create the impression that he was unaware that she was dead. The applicant responded that this was not true.
[48]In this context the prosecutor drew attention to the number of phone calls between the applicant and the deceased which included: 23 calls from the applicant to the deceased on 5 June; 10 calls from the applicant’s home landline to the deceased’s home, on 14 June; 13 calls from Suniula’s mobile, and also one phone call from his workplace phone to the deceased’s phone on 17 June; and a further 12 calls from Suniula’s mobile, on 18 June.
[49]Three calls from the applicant to the deceased on 21 June; one call on 22 June; one call on 24 June; no calls on 25 June; one call on 26 June; two calls on 27 June; one call on 28 June; and one call on 29 June.

In relation to the applicant’s statement to “P”, on 17 March 2002, the prosecutor asked the applicant how he knew that the deceased died on Sunday 20 June 1999, between 5.00 and 6.00 p.m. The applicant stated that he obtained that information from the undercover police and “P” himself. The prosecutor put to the applicant that “P” was not challenged about this aspect of his evidence and suggested the applicant’s answer was untrue. The applicant denied this, but, a little later, said that “it was a guess”.

The prosecutor pointed out that in the applicant’s statement of 14 July 1999, he omitted being dropped off by Poe in South Yarra on 20 June; the phone call made earlier that day from the Tufugas’ house, and the phone call at 4.53 p.m. from the milk bar phone box. The applicant stated that he had tried to remember everything, but he was not sure about how he travelled home on that day, as he was “a bit” drunk and sleep deprived. The prosecutor also put to him that there was nothing in that statement that placed him in the vicinity of the deceased’s flat on the Sunday afternoon. The applicant accepted that this was so.

With respect to the applicant’s interview on 29 July 1999, the prosecutor suggested to the applicant that he did not change his statement, in reference to his presence in the vicinity of the deceased’s unit, until the Informant told him that he had a statement from the person who had dropped him off at the corner of Commercial and Punt Roads. The applicant rejected this interpretation and stated that he had tried to remember how he travelled home and who dropped him off. He was able to provide more detail in the interview, once he was reminded of what had occurred.

The applicant claimed that he had gained knowledge of the finding of a scarf from the Informant, McIntosh, during his interview, and from “P”. However, it was observed by the prosecutor that McIntosh, who had been questioned by defence counsel at length on this matter, stated that he had not mentioned that a scarf had been found in the seemingly abandoned car. The applicant, in response, stated that he could not remember what McIntosh had said about it. He was then asked directly whether, before the commencement of the recorded interview, McIntosh had informed him that the deceased had been strangled with a scarf that was then left in an abandoned car. The applicant stated that he could not remember, but that it might have been McIntosh who told him where the scarf had been placed.

The applicant said that “P” had told him about the scarf on an occasion when they were together in a restaurant. It was then put to him that there was no reference to a scarf in any of the transcripts of their conversations. He responded that there had been other meetings between “P” and himself. The prosecutor then drew his attention to the evidence that all save one meeting (on 10 January 2002) had been recorded. The applicant claimed that “P” visited him at his home on “maybe 20” occasions. It was then put to him that none of the “additional” meetings were ever mentioned to “P” during his evidence, and that this suggested that the claim he was now making was untrue. The applicant disagreed. The prosecutor pointed out that, in a conversation between “P” and the applicant on 11 March 2002, which concerned this matter, there was not only no mention of the scarf but, by contrast, a suggestion by the applicant that the deceased was strangled with “the hands or something”. The prosecutor put to him that it was clear from that conversation that the applicant could not have been in possession of information about the scarf from “P” at that time. The applicant stated that he had known, but could not remember the word “scarf”. The prosecutor then moved to the applicant’s interview with McIntosh on 18 March 2002, in which he was asked about the disposal of the scarf, to which the applicant replied “I have no idea”. The prosecutor then asked the applicant why he had not told McIntosh that he knew of the scarf’s whereabouts, when he claimed to have been told by “P”. The applicant stated that he wanted to obey the gang’s request not to tell the police anything. With respect to the applicant’s description of the scarf as “little”, the prosecutor questioned the applicant concerning the source of his knowledge of its dimensions. The applicant stated that “P” had described the scarf as “thin” on one occasion. The prosecutor asked the applicant how he knew where the vehicle in which the scarf was found had been parked. The applicant stated that he had also received that information from the police.

The prosecutor then drew attention to changes that the applicant had made in his version of events. These included his statement, when initially interviewed, that he did not speak to the deceased again after the Bridge Club, when telephone records clearly indicated the contrary. The applicant’s response was that he had called the deceased almost everyday during their relationship. Another change, the prosecutor suggested, was that, although he said when interviewed that he last spoke to the deceased by telephone from the Tufugas’ residence in Sunshine, when he was further questioned by the police as to whether he spoke to her again that day, the applicant’s answer was “definitely not”. The applicant said that he could not remember using those words and thought that he may have said that he could not remember.

The applicant was asked why he did not return to the flat after 20 June 1999. He stated that he did not have the deceased’s permission to do so and always called before he went to visit her. The prosecutor also observed that the applicant did not return to collect some of his clothes which had been left there. He responded that he considered that they were safe and could be picked up later.

The prosecutor then referred to a number of items seized from the applicant’s home, including the small green diary in which reference was made to “Belinda’s birthday on [the] 22^nd”. The prosecutor suggested to the applicant that that entry was made as part of his attempt at practising the story to be given to the police. The applicant denied that this was the case. A little later the prosecutor queried why the applicant had referred to the deceased as “Belinda” when he had previously stated that he only knew her as “Daniella”. He answered that he remembered an occasion when he had been at the deceased’s flat and her sister called, asking to speak to “Belinda”.

The prosecutor then referred to the applicant’s first record of interview in which he stated that he had never entered the deceased’s housing complex from the rear. It was conceded by the applicant that Canny was correct in her evidence that he had done so.

The prosecutor put to the applicant that in his interactions with the gang the applicant was told many times that he could walk away without any repercussions. He responded that he always said “yes”, but that he did not have a clear understanding of what that expression meant. The prosecutor then gave the applicant some examples of occasions on which he was told by “P” that he did not want the applicant to do anything that made him feel uncomfortable or did not want to do. The applicant then confirmed those occasions.

The prosecutor suggested to the applicant that, when he received the request for a forensic sample under his door, on 15 March 2002, he went to the gang and asked for help. It was also suggested that the applicant was told by “P” that in order to obtain assistance, he had to tell the truth and that it was never suggested to him he should lie. The applicant stated that he did lie and told “P” what he thought he wanted to hear. He was eager to become a member of the gang and to “look good” in the eyes of “the boss”, but expected his check to be “clear”. The prosecutor queried the applicant as to why he would lie to an organisation that emphasised honesty, truthfulness and loyalty among its members. The applicant stated that he understood that that was the foundation upon which it operated, but was “really tempted” by the prospect of obtaining large amounts of money which he wanted to send home to his family in Samoa.

When the prosecutor questioned the applicant as to how he was aware that there was none of the assailant’s blood in the flat, he said that he did not know that that was the case and his statement was a fabrication. When asked as to how he knew that there was blood from the deceased on the carpet, the applicant claimed that this statement also was an invention. He said that he based his version on information gleaned from the police who, according to him, questioned him in relation to whether he had seen any blood, and from what he had learned from the television program “Australia’s Most Wanted”. He also claimed that he was shown a video recording of the crime scene depicting the deceased on the bed. However, he agreed that, at no stage, was McIntosh asked, by defence counsel, whether that had occurred.

The prosecutor pointed out that the applicant had said that the deceased bled from her mouth and nose area and that he was also able to identify the very area of the deceased’s face from which it originated. The applicant stated that he invented this detail in order to become “one of the boys”.

In relation to the applicant’s statement to “the boss” that he placed the deceased’s clothes in a washing basket due to the presence of blood, the prosecutor asked the applicant why he referred to putting clothes in a washing basket at all. The applicant responded that he was asked questions about clothing during the course of the investigation and decided to include this detail in his conversation in order to assist his family in Samoa with money.

It is upon this aspect that the submission with respect to the voluntariness of the evidence has been primarily focused in the present case.

[68](1948) 76 C.L.R. 501 at 511-512.

From at least the middle of the eighteenth century, the courts have expressed concern that a self incriminating statement may have been made in consequence of some inducement held out by a person in authority. Whether or not it developed as a reaction to the possible unreliability of a statement made in such circumstances, or by reason of the importance attributed to the individual’s right against self incrimination, can be a matter of debate[69], but it is clear that, at the present time, both considerations weigh heavily with respect to the admissibility of such evidence. It also must be borne in mind that, whilst potential unreliability is a raison d’etre for the rule, save to the extent that perceived unreliability may suggest involuntariness, the judge does not decide whether a confession is likely to be true[70]. As the rule is designed to address induced statements, it follows that if the inducement is removed before the statement is made or if the statement can be seen to have been made independently of it in any event, it has no application.
[69]R. v. Hodgson [1998] 2 S.C.R. 449; Mirfield – Confessions (1985) Chapter 2; Wigmore - Evidence (Chadborne Revision) Vol. 3 [827] et. seq.
[70]Sinclair v. R. (1946) 73 C.L.R. 316 at 323; Basto v. R. (1954) 91 C.L.R. at 628 at 640; R. v. Swaffield; Pavic v. R. (1998) 192 C.L.R. 159 at 171.

The inducement may be constituted by a wide variety of threats or promises and even what have been regarded as suggestions of temporal benefit have, on occasions, sufficed to attract the operation of the rule[71]. Over the years, the issue has arisen in many different sets of circumstances, but all have involved the notion that, viewed from the perspective of the maker of the statement, the person holding out the inducement was, by reason of their status vis a vis that person or with respect to the investigative or prosecution process, in a position to influence his or her situation in relation to the investigation or the prosecution of some criminal offence.
[71]R v. Dixon and Smith (1992) 28 N.S.W.L.R. 215 at 225 per Wood J. and authorities there cited.

It is not to the point to enquire whether the person in authority has abused their position in holding out the inducement. Sometimes, actual abuse is involved, but it is not necessary that that be the case or even that the profferor is aware that an inducement is being held out. Frequently, there is no practical capacity in the person holding out the inducement to enforce the threat or provide the promised advantage. However, from the perspective of an individual who fears prejudice by reason of the apparent ability of the proferror to act to their detriment, the situation could be quite alarming and the inducement regarded as very powerful. Similarly a person who, from the viewpoint of the maker of the statement, appears to possess authority may be perceived as able to influence the course of events in relation to a prosecution or possible prosecution favourably to the maker. The prospect of release on bail, the dropping of charges, the non-charging of other persons or the making of representations for leniency on his or her behalf may all operate as powerful pressures upon an individual to speak.

It is clear that, viewed from the perspective of the applicant, the promises of significant advantage held out to him were inducements within the common law rule. And it can hardly be gainsaid that they impacted upon him. After all, there would seem to be no room for argument concerning his response to them. The question which then arises is whether they were held out by persons in authority.

The applicant thought he was dealing not with police, but with criminals who were associated with some police who were also criminals. He was manipulated into believing that he was involved with persons acting outside the law who had the capacity through their association with corrupt members of the police force to derail the investigation into a murder, the commission of which he was suspected, and who also held out the promise of substantial financial and personal benefits to be derived from participation in unlawful activities. What power these persons possessed, he understood to arise from their ability and preparedness to defy lawful authority and not because he regarded them as possessing any colour or cloak of legitimacy at any level whatever.

The trial judge rejected the contention that the operatives, to whom inculpatory statements were made in these circumstances, could be regarded as persons in authority, stating in his ruling that:

“… 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”.[72]

[72]R. v. Tofilau (2003) 149 A. Crim. R. 446 at 460.

The argument was advanced that his Honour fell into error in approaching the question in this fashion. What is important, counsel asserted, is not whether the inducement has been held out by a person that the accused knew or believed possessed some ability by reason of lawful status or conferred role to influence the course of the prosecution or the manner in which the accused could be treated in respect of it, but whether he regarded the person as possessing the practical capacity, or power, to exercise such influence. In other words, the source or nature of the power or capacity is irrelevant. What matters is whether the accused may have accepted that the person holding out the inducement might have been able to do what he or she claimed was within their power. To test this proposition, I enquired of senior counsel for the applicant whether a criminal, who offered the inducement of shooting or intimidating a crucial witness, was to be regarded as a person in authority for the purposes of the exclusionary principle. He responded that, as such an individual, viewed from the perspective of the person to whom the inducement was held out, could well be perceived as possessing the ability to influence the outcome of the prosecution, that would be so. Setting to one side the fact that there is no support in any of the numerous authorities for this extreme position, its inherent absurdity is, in my view, apparent.

There is no exhaustive definition of a person in authority for the purpose of the rule. It has been held, on occasions, sometimes I would add with doubtful correctness, to include the victims of crimes, the parents of a victim of sexual offences, a prison officer, an aboriginal liaison officer, in addition to members of the police force, teachers and others[73]. I consider that there is a deal of force in the following view expressed by Thomas, J.A. in Burt[74] with respect to this line of cases:

“On the subject of involuntariness, some recent cases in New South Wales and South Australia have extended the ambit of the term ‘person in authority’ so that it readily includes persons such as complainants in sexual cases. In my view these decisions unduly expand the ‘involuntariness’ ground to take over other areas under which the courts have ample and more relevant powers to exclude such statements. The trend of these cases is to impose a load upon this rule that it was not designed to carry, and they ought not to be followed. I agree with White J. that the proper approach in determining whether a confession is involuntary is to examine the viewpoint of the accused person. If the accused would see the person asking the questions as a person in authority, the courts have perceived an unacceptable risk of expectation by the accused of advantage by co-operating or of disadvantage by failing to co-operate, thereby inducing answers which might otherwise be withheld. The risk of one’s will being overborne by a person in authority would seem to be the basis of the rule against reception of confessions unless they are voluntarily given.
In circumstances such as those in the present case, I am quite unable to see how this accused man could have regarded his daughter from whose company he had been separated since 1978 when she was 14 years old, as ‘a person in authority’. The artificiality of the concept would produce considerable difficulty in application of the principles under this strand of the law. Even if she were to be regarded as a secret police agent at the time (which I do not think she was) she cannot have been seen by the appellant as a person having any authority over him whatsoever. Of course every human being has the capacity to influence another, but I do not think that factors of that kind are the basis of this particular rule of exclusion of otherwise admissible evidence. If such evidence is to be excluded it must surely be on the basis of unfairness or impropriety.”

[73]In some of these cases, the admissibility of the evidence would have been more appropriately addressed by reference to the principle of basal volntariness, while in others, the resultant unfairness to the confessionalist may well have justified the exclusion of the evidence in the exercise of discretion.

[74]R. v. Burt [2000] 1 Qd.R. 28 at 32-33.

Be that as it may, I am aware of no case in which a person who did not appear to be cloaked with some legally conferred or held power or right, but claimed only the power of a criminal to breach the law and defy lawful authority, has been regarded as a person in authority. It would, as I have earlier suggested, be extraordinary if the situation were otherwise.

In Scofield, Wood, J. had to consider whether the mother of the alleged victim of a sexual assault was a “person in authority” for the purpose of the application of Section 410[75] of the Crimes Act (NSW). He stated:

“[I]t needs to be borne in mind that a child of tender years would rarely, if ever, be the moving party in the institution of a criminal prosecution.
In almost every such case the child will make an initial complaint to a school teacher, a parent or a relative, normally it will be the parents who initiate subsequent investigation by the police because the child is in their lawful control. Where it is a parent who initiates the investigation and causes the prosecution to commence, it seems to me that he or she does at the time answer the description of a ‘person in authority’, since it is within his or her power to place the wheels and a prosecution in motion. That power is one of some substance which could be capable of abuse.”[76]

[75]This is the equivalent of section 149 of the Victorian Evidence Act.

[76]R. v. Scofield (1988) 37 A. Crim. R. 197 at 200.

The mother in that situation undoubtedly was lawfully entitled, and may well have been under an obligation, to report the matter. She was in a position to exert legitimate influence, which could be abused, with respect to the initiation of an investigation into the accused’s conduct and she was regarded as being at that time, although probably not once the process of investigation commenced, a “person in authority”. Wood, J. held that the question was not determined by whether she held some official warrant or position, but whether she possessed some lawfully held right or power to set the investigation and prosecution in motion.

Whatever may be the limits with respect to who is categorised as a person in authority, it appears to me to be fundamental to the ambit of operation of the inducement principle that the offeror of the inducement, viewed from the perspective of the confessionalist, possesses, by reason of some lawfully held or conferred status or relationship with the maker of the statement, the capacity to influence “the course of the prosecution, or the manner in which he is treated in respect of it”. As Wood, J. stated and I have earlier pointed out, of course such a power, status, or relationship, may be abused. Indeed the fear that that may occur, whether or not the possibility be intended or deliberately conveyed, could constitute a powerful motivating factor for the making of the incriminating statement. The prospect that the holder of authority may abuse his or her position and therefore act unlawfully or beyond the limits of legitimate authority held does not alter the relationship of the holder with the confessionalist, save for the potential to increase the impact of the inducement.

In the course of argument before us reference was made to some Canadian authorities in which the meaning of the term “person in authority” was considered. Counsel for the applicant submitted that the approach adopted in that country did not represent the law in Victoria and should not be followed. Whilst there are significant differences in the applicable law between the two jurisdictions, I see no good reason for adopting a different view with respect to the concept of a person in authority for the purposes of the common law rule.

In Canada, there have been several cases in which manipulative techniques of a broadly similar kind to those employed in the present matter have been the subject of attention. Indeed, as I understand the position, members of Victoria Police were sent to Canada for training in their use. Over a century ago, it was held in Manitoba that admissions made to two detectives posing as criminal gang members and proffering the inducement of significant financial benefits from membership of their group were admissible. Bain, J. put the position as follows:

“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.”[77]

[77]R. v. Todd (1901) 4 C.C.C. 514 at 526-527.

This approach was approved by the Privy Council in Deokinanan v. R.[78] and in a number of later Canadian cases[79]. In my opinion, it accords with the reported authorities, principle and common sense.
[78][1969] 1 A.C. 20.
[79]R. v. Grandinetti [2005] 1 S.C.R. 27; R. v. Hodgson [1998] 2 S.C.R. 449.

Interestingly, by reason of the absence in the law of Canada of the concept of basal involuntariness as it has been understood in Australia, it would perhaps have been expected that the ambit of operation of the inducement principle would have been expanded. However that is clearly not the case, save possibly to the extent that in R. v. Hodgson the Supreme Court of Canada, in a majority decision, rejected the notion that the profferer had actually to possess some authority as well as be perceived by the confessionalist to have it in favour of a completely subjective test. There is no need to attempt to resolve that question here.

Certainly, as a matter of policy, I see no need or justification for extending the application of the inducement principle beyond its currently recognized limit in this jurisdiction, even if this Court was entitled to do so. The principle of basal voluntariness together with the various bases available for discretionary exclusion, provide an appropriate range of protections for the individual against statements obtained through compulsion, oppression, unfairness and the abuse of power whilst, at the same time, permitting the necessary investigation of criminal conduct to proceed.

It is, I consider, apparent that the principles underlying the admissibility of self inculpatory statements or the possible discretionary exclusion of such evidence, whatever may have been their origins, now reflect three basic concerns. First, before reliance is to be placed upon a self inculpatory statement, it must be capable of acceptance as reliable. Some situations are perceived as so fraught with danger in this respect that principles of admissibility have developed. These are encompassed by the notion that an admission made as a consequence of an inducement held out by a person in a position to exert authority with respect to the initiation or conduct of a prosecution process is seriously problematic, and the concept of basal voluntariness which addresses a similar problem in circumstances where the application of some external pressure may result in the will of the maker of the statement being overborne. Secondly, there is deeply rooted in the common law an acceptance that, in general, individuals should not be required to incriminate themselves through their own words. This represents an aspect of the relationship that exists between the State and the citizen in a society in which individual autonomy is highly valued. Thirdly, it is apparent that the Courts of this country have, over a number of years, become increasingly conscious of the need to ensure that the integrity of the criminal justice system and which, more broadly, is inherent in the concept of the rule of law, is not compromised by the unlawful or improper conduct of the investigative authorities upon which its operations depend[80]. It is well understood that adherence to these notions sometimes enables guilty persons to avoid the processes of justice, but accepted that departure from them creates the potential for even greater injustice.
[80]As Lord Bridge said in R. v. Horseferry Road Magistrates’ Court Ex Parte Bennett [1994] 1 A.C. 42:
“Whatever differences there may be between the legal systems of South Africa, the United States, New Zealand and this country [and Australia for that matter], many of the basic principles to which they seek to give effect stem from common roots. There is, I think, no principle more basic to any proper system of law than the maintenance of the rule of law itself.”
See also R. v. Ireland (1970) 126 C.L.R. 321 at 334-335 per Barwick, C.J.; Bunning v. Cross (1978) 141 C.L.R. 54 at 74-75 per Stephen and Aicken, JJ.; Cleland v. R. (1982) 151 C.L.R. 1; Pollard v. R. (1992) 176 C.L.R. 177; and Ridgeway v. R. (1995) 184 C.L.R. 19.

In the present case, the applicant believed that he was dealing with a criminal gang acting outside and contrary to the interests of any legitimate authority. The “crime boss” appeared to possess the capacity to influence his financial future and the course of the investigation of the murder. But, as I have pointed out, capacity and authority involve different notions. Both encompass the ability to affect the situation, but the latter incorporates a notion of the origin of the ability. It is apparent from the evidence in this case that, at no stage, until he was arrested and formally interviewed, did the possibility that he may have been dealing or associating with a person who possessed authority, as opposed to criminal capacity and propensity, ever occur to the applicant.

The common law principle of exclusion of statements secured through the holding out of inducements was never directed to situations of that kind and the trial judge was not required to rule the evidence inadmissible on that basis.

Accordingly, the question whether section 149 of the Evidence Act would be applicable does not arise in this situation. In any event, the trial judge found, although it was contested in this Court, that the admissions made by the applicant were not sufficient to constitute a confession within the meaning of the section. It is, of course, by no means clear from the authorities what is required for an incriminating statement or statements to come within this provision but it is not necessary to attempt to deal with this issue.[81]
[81]R. v. Lee (1950) 82 C.L.R. 133 at 146; McKay v. The King (1935) 54 C.L.R. 1 at 9; Attorney-General (NSW) v. Martin (1909) 9 C.L.R. 713 at 726-727; Cornelius v. The King (1936) 55 C.L.R. 235 at 246. There is no need to address this question in a case where there had been no promise or threat held out by a person in authority.

Ground 1(b)

As in the court below, the submissions were made on behalf of the applicant 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. 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        the 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 the prevailing community standards.”[82]

[82]R. v. Tofilau (2003) 149 A. Crim. R. 446 at 463.

Each of these claims was given careful attention by the trial judge in his Ruling. With respect to the first of them, he said:

“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.”[83]
[83]At 464.

He then found:
“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.”[84]
[84]At 466.

And concluded that:
“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’;

(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, J.A. 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’;

(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.”[85]

[85]At 469-470.

It is evident that his Honour approached the issue of the possible exclusion of the evidence by reference to public policy considerations, and, specifically the possibility there had been unfair derogation of the applicant’s right to silence with great care. It has not been suggested that he failed to have regard to any relevant principle or authority, but rather that he attributed inappropriate significance to various considerations. The argument advanced on behalf of the applicant to the effect that the process of manipulation in which the police engaged “completely and deliberately undermined his right to silence”[86] is, in my view, entirely without foundation. This was not a situation in which:

“the procedure employed constituted a deliberate effort to circumvent [or undermine] the [applicant’s] statutorily guaranteed right to silence.”[87]

Nor as I have earlier indicated, can the exercise of that right be regarded as compromised solely because the police members involved engaged in subterfuge in their dealings with the applicant.

[86]This was the expression employed by counsel in his written submissions.

[87]R. v. Marks (2004) 150 A. Crim. R. 212 at 230.

I am far from persuaded that it has been demonstrated that the trial judge fell into error in any of the respects claimed. All of the findings of fact made by him were open on the evidence, indeed most were not the subject of dispute. He directed attention to all relevant considerations and principles and there is nothing which can be seen to arise from the manner of his exercise of discretion which suggests that it may have miscarried.

With respect to the second basis on which the exercise of the trial judge’s discretion was asserted to have miscarried, again his Honour’s Ruling demonstrates that he was conscious of the relevant principles and evidentiary considerations and concerned to apply them correctly. His Ruling contains the following passage:

“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.’

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. [Counsel] 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[88].

[88]R. v. Tofilau (2003) 149 A. Crim. R. 446 at 470-471.

I am unable to detect any error in his approach to the exercise of his discretion on this basis either by reference to the Ruling itself or by inference arising from the manner in which his discretion was exercised.

When addressing the argument that the evidence was obtained at a price which was unacceptable having regard to prevailing community standards, his Honour referred to what Canadian authorities describe as “the community shock test” and quoted passages from Unger[89] and Collins[90].
[89]R. v. Unger (1993) 83 C.C.C. (3d) 228.
[90]R. v. Collins [1987] 1 S.C.R. 265.

He concluded, and I agree, that in this jurisdiction:

“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.”[91]

[91]R. v. Tofilau (2003) 149 A. Crim. R. 446 at 472.

Finally, there was certainly no justification for the exclusion of the evidence in the exercise of discretion by reason of its inherent unreliability. As I have indicated earlier, there could well be cases in which the tactics adopted to secure admissions of themselves could be regarded as so calculated to produce inherently unreliable evidence or in which the particular vulnerabilities of the individual may be such that a trial judge could reasonably form the view that the evidence should be withdrawn from the jury because it would be unjust to act upon it. In my opinion, the evidence in the present case presents no such difficulties. There was, as I would suggest in the summary of evidence and outline of arguments set out earlier, much to support the confessional statements. Whether or not they were accepted as truthful and reliable was finally for the jury to decide.

However it must not be forgotten that the admission of out of court statements against penal interest by an accused person is premised on the notion that, in general, persons do not inculpate themselves with respect to criminal conduct unless they are guilty. Whilst this kind of evidence must always be approached with great care as (inter alia) the premise itself does not always hold true, the issue of reliability can be seen to present particular problems when the individual perceives that it is both safe and beneficial to make the statement.

There has been no complaint concerning the trial judge’s instructions to the jury in this or indeed any other respect, including his directions with regard to the possible prejudicial impact of the evidence that had been presented for their consideration. However I should add that I agree with the views expressed by Callaway, J.A. in his judgment on this aspect. As he has pointed out, the scenario evidence constituted “propensity evidence” within the meaning of section 398A of the Crimes Act 1958, and it is evident in any event that by reason of its potential prejudicial impact careful instruction was required to ensure that it was not used improperly by the jury. Although no problem can be seen to have arisen in the present case, as Callaway, J.A. has also emphasised, in such situations the trial judge will need to direct the jury carefully.

This ground, accordingly, must fail.

Ground 1(c)

Senior counsel for the applicant informed the Court that this ground was relied on only if either ground 1(a) or ground 1(b) succeeded. Accordingly, it need not be addressed.

It follows that the application must be refused.

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[2006] VSCA 40

21 April 2006