R v Xie (No 20)

[2015] NSWSC 2131

Supreme Court

New South Wales

Medium Neutral Citation:	R v Xie (No 20) [2015] NSWSC 2131
Decision date:	18 August 2015
Jurisdiction:	Common Law - Criminal
Before:	Fullerton J
Decision:	Evidence admissible
Catchwords:	CRIMINAL LAW – admissibility of covertly recorded conversations with an undercover officer – whether evidence capable of amounting to evidence of consciousness of guilt and/or admissions under s 85 of the Evidence Act – discretionary exclusion under ss 90, 135 and 137 of the Evidence Act
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Pavitt v R [2007] NSWCCA 88; 169 A Crim R 452 R v Swaffield; R v Pavic [1998] HCA 1; 192 CLR 159
Category:	Procedural and other rulings
Parties:	The Crown Lian Bin (Robert) Xie (Accused)
Representation:	Counsel: M Tedeschi QC / K Ratcliffe (Crown) G Turnbull SC / L Fernandez (Accused)   Solicitors: Director of Public Prosecutions (Crown) Kidman Legal (Accused)
File Number(s):	2011/147183

Judgment

1. HER HONOUR: Evidence has been led in the Crown case that an undercover police officer, who has been referred to in the evidence by the pseudonym “Harry Samios”, was incorporated as part of the police strategy that was deployed by Witness A (a prison informer) in the various conversations he had with the accused whilst they were both inmates at Long Bay prison.

2. Witness A gave evidence that he first contacted police in December 2011 and offered to assist them in the ongoing investigation into the murders of the deceased after the accused had progressively revealed to him information about the murders and, by inference, his role as the murderer.

3. With the agreement and encouragement of police, the strategy involving Harry was deployed by Witness A from early 2012 with a view to the accused making admissions as to his involvement in the murders.

4. The primary pretence was that Harry was Witness A’s friend and that he knew a corrupt police officer in the Strike Force investigating the murders who could provide information to the accused about the case against him. Part of the police strategy in utilising this pretence was for Witness A to suggest to the accused that the police had probably not disclosed in the brief of evidence all of the evidence implicating him in the murders, and that Harry could be a conduit through whom the accused could get access to that information.

5. As part of this strategy, Witness A was to suggest to the accused that police may not have disclosed CCTV footage of him purchasing the hammer (the murder weapon) before the murders and disposing of it after the murders, and that Harry’s contact in the Strike Force would know whether that was the case. Witness A also gave evidence that he was instructed by police to suggest to the accused that Harry had been told by the corrupt police officer of the existence of additional statements from a DNA expert in South Australia in the expectation that the accused would reveal information to Witness A confirming that he knew the DNA from the garage floor was in the blood of the deceased and that he was aware of the consequences of the DNA report confirming that fact.

6. Witness A has given evidence that he was encouraged by police to raise the subject of Harry, and what Harry could do for the accused, in the expectation that in showing a keen interest in obtaining access to information from a corrupt police officer, the accused would disclose something about the murders the police were unaware of and, in this way, implicate him as the killer.

7. These various stratagems in which Harry was nominated by Witness A as someone who could assist the accused were employed to some effect in both the recorded conversations Witness A had with the accused and in the evidence Witness A gave of other conversations with the accused which were not recorded. Mr Turnbull also cross-examined Witness A in respect of a large number of recorded telephone conversations he had with police in which the police were actively engaged with him (and he with them) in devising and deploying the strategy, including by the tender and playing of a large number of the conversations between Witness A and the officer-in-charge where it was discussed.

8. The second pretence devised by the police came to be known or referred to as “Plan B” – on one view of the evidence, a nomenclature that the accused may have been the first to use. Simply put, Plan B involved Harry or someone that he deputised or that the accused nominated (including Witness A at one point), planting incriminating evidence on a corpse that the accused was led to believe Harry had access to from his work at a crematorium. The accused was also to be given to understand by Witness A that a sample of DNA could be taken from the corpse and planted on the murder weapon, or a hammer of the same kind as the murder weapon, the location of which would be disclosed to the media, thereby securing the accused’s release and the withdrawal of the charges against him. The deceased person was referred to in conversations between Witness A and the accused as “the candidate”. Witness A gave evidence that he discussed with the accused that “the candidate” would be a man of Asian ethnicity, and of an age similar to a person with whom the deceased Lily Lin may have been having a romantic liaison at some time within 12-months of her death. A key to 55A Boundary Road was also to be cut and planted in the home of the dead man, together with a photograph of Brenda Lin and a mobile phone programmed to replicate the contents of a secret phone that Lily used which the accused told Witness A he burnt after killing her.

9. An arrangement was also discussed with police whereby Witness A was to introduce the accused to Harry in the visits area at the prison and, in the course of that meeting, Harry would discuss with the accused his access to the corrupt police officer and/or Plan B with a view to those conversations being recorded by a listening device to be worn by Harry. The plan to have the accused meet with Harry for this purpose evolved over the course of Witness A’s discussions with police from about February/March 2012, up to and including the weeks immediately preceding the commencement of the accused’s committal in August 2012. They continued during the committal which was convened at broken intervals between August and December 2012. Although Harry visited Witness A at Long Bay jail on a number of occasions at the insistence of police on the pretence of being Witness A’s friend, the accused did not meet with Harry and speak with him at that correctional facility. Witness A gave evidence that on one occasion in early June 2012 the accused was in the visiting area and was introduced to Harry but they only exchanged words of greeting.

10. Recorded conversations between the accused and Witness A in May and June 2012 include the accused expressing to Witness A his concern that he should not be seen to meet with Harry face-to-face at the prison lest he draw attention to himself by meeting a person apparently unconnected with his case. The accused does, however, acknowledge in one of the recorded conversations in evidence, that Witness A has advised him that Harry has sent a letter, or will send a letter, where importing and exporting goods from China are raised for the accused’s consideration. Witness A gave evidence this was designed as a front to give the accused comfort that there would be the appearance of some legitimate context to his meeting with Harry should the suspicions of the authorities be aroused. It would appear from evidence led by the accused in cross-examination of Witness A that the police had sent the letter (which had in fact been scripted by Witness A and signed “Harry Samios”) but that it was not ultimately received by the accused and that it needed to be resent. The evidence led to date in the trial does not reveal whether the letter was resent by police and/or received by the accused.

11. Detailed discussions between Witness A and the accused about the various iterations of Plan B were not recorded on any of the listening devices worn by Witness A as part of the assistance he provided to police whilst an inmate at Long Bay prison (cf the recording of 11 November 2012, see [14]). They were, however, detailed in handwritten notes of conversations he had with the accused which he forwarded to the police from time to time during the currency of that phase of the police operation.

12. Witness A also forwarded to police various documents that he said the accused had given to him from the brief of evidence he had stored in his cell, including documents relating to the locking mechanisms of the front doors of 55A Boundary Road, together with the accused’s notations concerning the specifications which would enable a duplicate key to the front door(s) to be cut as part of the planning for, and execution of, Plan B. Witness A rejected the proposition put in cross-examination that he had stolen these documents from the accused’s cell.

13. According to Witness A, the accused also instructed him upon his release from custody to purchase a hammer of a particular construction and specification to be used as part of the execution of Plan B. He was instructed to purchase the hammer from a cash outlet, being careful to ensure that there were no barcode identifiers on it. This conversation was not recorded on any of the listening devices.

14. In a recorded conversation on 11 November 2012, the accused and Witness A openly discuss Plan B (without any accompanying detail as to what was precisely comprehended by it) in the context of the accused’s stated preference, at that time, for Plan B to be deferred until after his part-heard committal proceedings. Witness A gave evidence, also reflected in the same recorded conversation, that the accused expected not to be committed for trial or, if that were to occur, that he would be granted bail (being “Plan A”) and, that being the case, Plan B may not need to be executed at all. The accused was refused bail on 24 December 2012.

15. On a number of occasions in the course of cross-examination, it was put to Witness A that he applied pressure to the accused to accept a visit from Harry, despite the accused’s continued protestations that he did not wish to meet and/or speak with him. Witness A denied that he applied any pressure of any kind, although since the setting up of the meeting between the accused and Harry was part of a predetermined police strategy, Witness A agreed that he did raise the subject of a meeting between Harry and the accused with the accused more than once. Witness A gave evidence (also consistent with the telephone conversations with police introduced by the accused in cross-examination) that the accused was non-committal as to whether he would meet with Harry before his committal proceedings, at that time scheduled to commence in August 2012, with his ultimate position being that he would await the outcome of the proceedings before taking the matter further. It is at least an available inference that it was in this context that the accused nominated those arrangements as a backup plan/Plan B in the recorded conversation in November 2012.

16. It was also put to Witness A in cross-examination that he was lying when he said that the accused showed an active and ongoing interest in Plan B. It was put to Witness A that the accused had done nothing “to take up the Harry option”, but he simply tolerated Witness A’s repeated suggestions and entreaties that he utilise what Harry had to offer. Witness A gave evidence that if, at any time, the accused had said “I don’t want to talk to you, go away”, that would have been the end of it. He rejected the proposition that the accused ever made any excuses or deflected the conversation to avoid talking about Harry in respect of either of the pretence scenarios that were under discussion. He did agree that on some days the accused was more receptive to what Harry had to offer than other days.

17. Witness A also rejected the suggestion put to him in cross-examination that he understood that the accused believed that Harry was in fact somebody with whom he could actually do business upon his release from jail, or that the accused actually believed that Harry had any legitimate business interests in importing or exporting goods from China. As Witness A explained it, regardless of what he spoke with the accused about when speaking about Harry, that is, whether it was in the context of either of the two pretence scenarios, including the pretence that they were potential future business associates, “none of it was innocent because Harry was always put forward as someone who was not an innocent man …”. Witness A did agree, however, that the accused’s apparent interest in commercial trade of one sort or another was a subject he used as a hook to get the accused talking about “the case”, but rejected the suggestion that, in that way, he was applying pressure on the accused to discuss his case, or to take up the offer of Harry as a corrupt conduit of information from police, or as someone who could assist him to plant evidence implicating another person as the murderer - the central feature of Plan B.

18. The accused was transferred from Long Bay prison to Parklea prison on 21 February 2013. Witness A was released from custody on 3 May 2013. There is no evidence of any contact between Witness A and the accused after these dates.

19. On each of 26 April and 9 and 24 May 2013, Harry attended on the accused at Parklea prison as “a visitor”. He was wearing a listening device on both occasions. The Crown does not seek the admission of the recording on 9 May 2013 (in which Mrs Lin participated) being, on the Crown’s assessment, a recording which is almost wholly indecipherable with a good part of what can be heard (albeit in snippets) with Harry and the accused discussing “business”. It is no part of the Crown case that Mrs Lin was made aware of what the accused had been told by Witness A were Harry’s corrupt connections or Plan B. The Crown does not seek to rely on the unrecorded conversation Harry had with the accused set out in his statement of 26 April 2013.

20. The Crown does tender the recording of 24 May 2013 and a transcript of the conversations recorded through Detective Sergeant Maree, as Harry is not available to be called by the Crown. Mr Turnbull objects to the tender. No issue appears to be taken to the Crown having informed me (and the defence) from the bar table very early in the trial that Harry is unavailable to be called as a witness for “medical reasons”. I do not understand that there is any objection to the Crown’s reliance upon a notice served under s 65 of the Evidence Act 1995 (NSW) to allow some parts of Harry’s various statements to be led on a hearsay basis through Detective Sergeant Maree. These statements relate to Harry’s attendance on the accused as a visitor on 24 May 2013 and being processed through the Parklea prison for admission in that capacity, but are only relevant if the recorded conversation is admitted.

21. The evidence led on the voir dire into the admissibility of the recording included the tender of statements from both Harry and Corrective Services officers and the evidence of Detective Sergeant Maree. Neither of the Corrective Services officers were required for cross-examination. Mr Turnbull advised me in submissions that a different system obtained where an inmate was a protected prisoner, and because the accused was classified in that way, he was unaware that Harry had scheduled a visit with him before he was notified he had a visitor and was escorted to the visits area. There was nothing in the evidence before me on the voir dire to suggest protected inmates were treated differently from other inmates in this respect.

22. The evidence on the voir dire establishes that the visits area at Parklea prison is overseen during the course of scheduled visiting hours by an administration support officer. An inmate receives a visit is that the intended visitor makes a booking by phone or in person to visit an inmate at a particular time and date. A visits list is published daily within the various wings of the prison. Those lists are forwarded to each wing by the administration support officer one day prior to the scheduled visit. This is intended to allow sufficient time for any inmate to decline to participate in the visit. An inmate may verbally advise either the wing officer or visit supervisor on the scheduled day that they do not wish to participate in the visit. At the scheduled time, an inmate who has been notified of a scheduled visit assembles behind the visiting area where they receive white overalls which they are to wear during the visit and advised of the table they have been allocated in the visits area.

23. The visits officer who was on duty on 24 May 2013 said in his/her statement that the accused made no application at any time before that day to have a visitor removed or banned from making bookings. She/he also recalls the person (who must be Harry) visiting the accused on 24 May and participating in the visit in accordance with the protocols. No application was made by the accused after the visit to ban Harry from further attendance. Another Corrective Services officer provided information in his statement that he also recalls the visit from Harry as it was part of his responsibilities as the VDU Operator to oversee the visit between the accused and Harry. He said he did not discern any concern by the accused before or after the visit, or by anything the accused said before, during or after the visit that would have occasioned him to remove Harry from the visiting area or ban him from future visits. He said he returned the accused to the wing after the visit.

24. Mr Turnbull objected, on a number of different bases, to the recording of the conversation between Harry and the accused on 24 May 2013, and to the jury having access to the transcript Detective Sergeant Maree prepared from what he was able to discern of the conversation.

25. His primary submission was that the evidence was not relevant. He submitted that the quality of the recording is such that, even with the assistance of a transcript prepared by Detective Sergeant Maree, the notations on the transcript of wholly indecipherable exchanges between Harry and the accused, and Detective Sergeant Maree’s further notation of indecipherable words and phrases in some passages interspersed with audible words and phrases, does not constitute evidence which is capable of rationally effecting the jury’s assessment of the probability of the existence of a fact in issue. He submitted that for the Crown to be forced to isolate discrete passages, or parts of passages, as capable of showing the accused’s willingness and preparedness to discuss the detail of Harry’s offer to assist him to deploy Plan B, and then relying upon that as evidence of a consciousness of guilt, merely compounds the Crown’s failure to make the audio recording relevant. He submitted, even if relevant, the probative value of the evidence was low, it should be excluded in the exercise of discretionary exclusion under s 137. He further submitted that other parts of the same passages relied upon by the Crown (or those contextual to them) are capable of bearing an interpretation equally consistent with the accused maintaining an interest in Harry’s friend as a source of information about the Crown case against him, and a concern about ongoing delays in the service of evidence, which was not capable of evidencing a consciousness of guilt and that was an additional reason for rejecting the Crown’s tender of the recording.

26. With the consent of the parties, I listened to the recording of the conversation in chambers. I was provided with a DVD player and high-performance headphones, together with the transcript prepared by Detective Sergeant Maree. That transcript had been the subject of repeated refinements in the pre-trial phase and early in the trial, including some amendments suggested by the Crown and further changes identified by Detective Sergeant Maree as the argument on the admissibility of the recordings proceeded at broken intervals over the last week or so.

1. In the course of preparing these reasons for judgment, I was furnished with a transcript prepared by Detective Sergeant Maree by email from the ODPP dated 13 August 2015. I understand that version incorporates some of the amendments suggested by the Crown and is otherwise the final form of the transcript upon which the Crown proposes to rely if the audio recording is admitted. I should also make clear that I have been able to discern words additional to those that are incorporated in the most recent transcript. However, since if the recording is to be admitted it will be a question for the jury as to what they are able to discern from the audio record with the assistance of the transcript (if it is, in their view, capable of assisting them to discern what is recorded on the audio recording in whole or in part), I do not propose to rely upon any of those additional words in determining the question of admissibility.

2. The fact that the quality of the audio recording is generally so poor that without reference to the transcript there is little that can be meaningfully discerned of the content of the conversation, is not determinative of the admissibility of the audio recordings as the evidence of what was said if, with the assistance of the transcript, and after close and attentive listening, I am satisfied there is both a discernible context in which the accused and Harry are engaged in conversation, and the terms of the conversation is also reasonably discernible and that what is said (or not said) by the accused is relevant.

3. Even after listening to the recordings on a number of occasions, I am of the view that the overall quality of the recording is best described as variable, with words, phrases and whole sentences being indecipherable, even after attuned listening. However, on repeated listening, and with the transcript providing a basis upon which to seek an appreciation and understanding of what is being said (in terms and in context), I am satisfied that significant parts of the conversation are sufficiently audible to yield, in a meaningful way, both the context within which the meeting was conducted and the subjects which were discussed. In particular, I am satisfied it would be open to the jury to find that the accused was aware of who Harry was (or pretended to be); that he was conscious that Harry was aware of what he had been discussing with Witness A whilst they were inmates at Long Bay prison, including, although not limited to, planting evidence on “the candidate”; and that Harry could execute that arrangement as part of Plan B. I am also satisfied in that connection that the jury could conclude that the accused expressed concern that if a substitute weapon was to be utilised to falsely incriminate another person (assuming the murder weapon was “unavailable”), it would need to be of a configuration that was capable of producing the wounds revealed on autopsy. I am also well satisfied that when Harry informs the accused that the “paperwork” he gave to Witness A to enable the key to Boundary Road to be cut proved to be unsuitable, the accused raises no query but simply demurs to what he is told. Independent of the proposed use of the key, being at one time part of Plan B, this evidence also has the capacity to support Witness A’s evidence that he was given this material by the accused, meeting the accused’s allegation that Witness A stole the material from his cell.

4. That being so, the Crown has satisfied me that what is said by the accused, in the context in which these exchanges with Harry take place, informed by the attitude, demeanour and tone of the conversants, is post-offence conduct capable of being considered by the jury as evidence of a consciousness of guilt, it being a question for the jury, under direction, as to whether they are satisfied they should utilise any part of the audio recording in that way.

5. In addition, another fact put in issue by the defence in counsel’s cross-examination of Witness A, is whether the accused was at any time willing to meet with Harry with a view to discussing Plan B and, if not, whether he was willing or open to meeting with him at some future time. As I have already noted, the Crown led a great deal of evidence from Witness A of various conversations he had with the accused where Harry was the subject of discussion and what Harry could do to assist the accused was discussed in detail. This evidence was not the subject of objection. I assume it was accepted by the accused that Witness A’s evidence in this respect was admissible, not only as constituting admissions by the accused but as capable of evidencing a consciousness of guilt, in the sense that he discussed with Witness A ways of deflecting police attention from him as the person charged with murdering the deceased, ultimately with a view to wholly exculpating him as the murderer.

6. Throughout the record of the meeting at Parklea prison on 24 May 2013, which extends over 80 minutes, I can discern nothing in the accused’s demeanour when the visual surveillance device is active, or in the parts of the conversation he had with Harry that are audible and comprehensible, to suggest any disinterest on his part when Harry raises with him the prospect of utilising “the candidate” upon whom to plant DNA, or any disinclination to discuss that subject with him. Whilst I accept that the accused does not expressly endorse or adopt what Harry is proposing in any unqualified way (in particular, he does not suggest that he can get access to the murder weapon, but appears to dismiss this as an option), on an available interpretation of what the accused says and is seen to do he shows a willingness, on one view, perhaps even an eagerness, to talk about it, despite what he sees as the risks associated with the plan and his fear of being caught. Even were there evidence on the voir dire which raises a question about the accused having advance notice of Harry’s visit, and even if the conversations also involved the accused discussing “his case” and “the Crown case” in general terms, I remain of the opinion that when the conversation does turn to Plan B and “the candidate”, the accused shows no hesitation to discuss it and no disinclination to consider what Harry is saying to him.

7. On the assumption that the recording satisfies the test of relevance, and even if the Crown eschewed any reliance on the contents of the conversation as constituting admissions as defined in Part 1 of the Dictionary to the Act, Mr Turnbull submitted that I would find that it was reasonably open to view the conversation, or parts of it, as including admissions and, that being the case, that s 85(2) of the Evidence Act should result in the exclusion of the evidence.

8. An admission is defined in the Dictionary to mean “a previous representation” that is:

(a) made by a person who is or becomes a party to a proceeding (including [an accused] in a criminal proceeding), and

(b) adverse to the person’s interest in the outcome of the proceeding.

35. The Crown does not tender the recording as containing any admission by the accused, as defined. Rather, as already noted, the Crown relies upon the context in which the meeting occurred, including, necessarily, that the accused must be taken to have known in advance of entering the visits area who he was meeting and why, as evidencing a consciousness of guilt on the same basis that evidence was led from Witness A of his discussion with the accused about who Harry was and what he could do for the accused.

36. Even were the recorded conversation, or parts of it, also capable of being construed as containing admissions (a finding I am prepared to make for present purposes under s 88 of the Evidence Act), it is clear that s 85 has no application in the current context. Section 85 provides:

85 Criminal proceedings: reliability of admissions by defendants

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:

(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or

(b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, 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.

(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and

(b) if the admission was made in response to questioning:

(i) the nature of the questions and the manner in which they were put, and

(ii) the nature of any threat, promise or other inducement made to the person questioned.

37. An investigating official, being the person to whom or in who’s presence an admission has been made, is defined in the Dictionary, relevantly so far as the trial is concerned, as follows:

(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or

(b) …

38. Since Harry is a police officer acting in that capacity, s 85 has no application. On reflection, Mr Turnbull accepted that was so. He did, however, maintain his reliance upon the discretion to exclude what he submitted were reasonably capable of being viewed as admissions in s 90 of the Act. That section provides that the Court may refuse to admit evidence of an admission (or to refuse to admit the evidence to prove a particular fact) where the two preconditions for the enlivening of the discretion are met. Mr Turnbull submitted they were both enlivened in this case, in that:

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

(b) having regard to the circumstances in which the admissions were made, it would be unfair to [the accused] to use the evidence.

39. The criteria relevant to the exercise of the discretion in s 90 are not fixed. It would seem to be the case, however, that an infringement of an accused’s rights and privileges in the obtaining or eliciting of an admission would be a relevant consideration in the exercise of the discretion, as would any unlawfulness or impropriety on the part of police in obtaining or eliciting the admissions. I am not persuaded that either criterion has any relevant application here.

40. Harry’s false representation that he has both access to a corrupt police officer and could provide a means by which evidence might be “planted” to falsely implicate another person and deflect police attention from the accused (and all that predated the accused’s discussion with Harry about that subject, including what Mr Turnbull submitted was the persistence of Witness A in raising these subjects with the accused over many months when they were inmates at Long Bay prison) were identified as the primary triggers to unfairness. Mr Turnbull submitted that once the accused had exercised his right to silence when arrested by police in May 2011, the fundamental protection afforded to him both at common law and by statute was infringed by Harry’s unsolicited attendance on him at the prison on repeated occasions in April and May 2013, and when there raising with him in the conversation on 24 May 2013 his friend (the corrupt police officer) and Plan B, both scenarios that Harry was repeatedly prompting the accused to discuss when neither were initiated by the accused.

41. At the time of his arrest in May 2011 the accused declined to be further interviewed by police after he had voluntarily participated in a lengthy interview with police in May 2010 after being cautioned. Whilst it is self-evident he would not have spoken to Harry at all were he aware he was an undercover police officer, in this case I do not regard that as determinative. Neither is the fact that Harry visited the prison in the expectation that the accused would pursue his interest in Plan B, and in the hope that he would make further admissions as to his role in the murders in the process - see generally R v Swaffield; R v Pavic [1998] HCA 1; 192 CLR 159. In Pavitt v R [2007] NSWCCA 88; 169 A Crim R 452, Adams J observed of that decision:

[168] Although the [High] Court was divided as to the disposition of the appeal in Pavic (Kirby J dissented), it seems that the whole Court accepted that the appropriate approach was “to think of admissibility as turning first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards” (see 192 CLR at 194-195 per Toohey, Gaudron and Gummow JJ, Brennan CJ at 181-182, Kirby J at 208).

42. Another feature of unfairness relied upon by Mr Turnbull to invoke the discretion under s 90 was that the conversation with Harry was the functional equivalent of an interrogation, being the culmination of a deliberate strategy employed by the police, first to have Witness A introduce Harry to the accused as a corrupt agent, and thereafter to initiate and then maintain the accused’s engagement and interest in discussions about Plan B by sending Harry to visit the accused in prison (a visit that was, in his submission, unsolicited and unannounced) with the intention of eliciting verbal admissions from him. He submitted that Harry’s persistent questioning concerning the accused’s knowledge as to the whereabouts of the murder weapon, including how it could be obtained or a replica acquired to incriminate “the candidate”, was interrogative in style. For the reasons I have also given, I do not interpret either Harry’s conduct or behaviour (or the attitude of the accused in engaging in open dialogue with Harry) as bearing that interpretation.

43. Mr Turnbull did not accept that the evidence from Witness A allowed for me to find that Plan B was a plan of which the accused was aware and even less that he had styled the plan as “Plan B” by that nomenclature. Mr Turnbull submitted it was not to the point that on what he submitted was a strained interpretation of the recorded conversations between the accused and Witness A, they discussed Plan B remaining open after his committal for trial. The unfairness the subject of the application for exclusion of the evidence under s 90 was, in his submission, in the police continuing to promote Plan B in April/May 2012 by sending in an undercover police officer to ignite the accused’s interest, in circumstances where he had not shown any interest in the proposal before that date. He submitted that the unfairness was compounded when, in the conversation with Harry that ensued, the accused did not initiate any discussions about Plan B and actively sought to refuse Harry’s entreaties to discuss it.

44. Mr Turnbull did accept, however, that if I were to find that Witness A’s evidence was consistent with the accused actively participating in conversations about Plan B, then his submission that there was unfairness in those conversations continuing in a face-to-face setting with Harry would not have any force. It was his submission that I would not be satisfied from Witness A’s evidence that there was any meaningful engagement by the accused in what Witness A was promoting as part of the police strategy, beyond him simply tolerating Witness A’s importuning and entreaties in a prison yard from which he had no means of escape. For reasons already given, I am unable to accept that submission.

45. Mr Turnbull sought to invoke the principles set out most recently in Pavitt where, at [70] in the judgment of McColl JA and Latham J (Adams J dissenting on the question), a number of propositions concerning the admissibility of covertly recorded conversations were set out. It was from the summary of propositions in that case upon which Mr Turnbull relied when nominating Harry as an agent of the state and that his conversation with the accused was akin to an interrogation. That paragraph reads:

In our view, without being exhaustive, the following propositions relevant to the present case can be extracted from the authorities to which we have referred concerning the admissibility of covertly recorded conversations:

(a) The underlying consideration in the admissibility of covertly recorded conversations is to look at the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned: Swaffield (at [91]) per Toohey, Gaudron and Gummow JJ; (at [155]) per Kirby J.

(b) If that freedom is impugned, the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted: Swaffield (at [91]); a conclusion that some or all of the Broyles factors were present did not lead to the admissions being excluded in either Pavic or Carter's cases;

(c) Even if there is no unfairness the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards: Swaffield (at [91]).

(d) The question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and/or improper include whether the accused had previously indicated that he/she refused to speak to the police;

(e) The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required:

(i) as a threshold question, was the evidence obtained by an agent of the state?

(ii) was the evidence elicited?

(f) A person is a state agent if the exchange between the accused and the informer would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents: Broyles (at [30]);

(g) Absent eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police: Hebert ;

(h) Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the state agent for the conduct of the conversation may also be important: Broyles.

(i) The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful.

46. Their Honours went on to find that there was no unfairness in that case in admitting the recorded admissions made to a complainant by telephone pursuant to a warrant issued to police to enable them to listen to the telephone call. Their Honours were not satisfied that the complainant was an “agent of the state” merely because of his relationship with the police. However, even if they were wrong about that, their Honours were satisfied that there was no exploitation of the accused/appellant or that the conversation would have been materially different if the police had not arranged for it to take place and to have recorded it as it occurred. The Court was also not satisfied that the conversation was the “functional equivalent of an interrogation” or that the community would disapprove of the police utilising the complainant’s preparedness to talk to the accused as a test of her credibility. In applying the approach sanctioned by the High Court in Swaffield, their Honours were also of the view that the appellant made the admission relied upon by the Crown voluntarily and the circumstances in which it was made did not cast doubt upon its reliability. Finally, their Honours were not satisfied that the conversation took place in circumstances which led to the conclusion that its admission against the accused/appellant, or a conviction obtained in part reliance on it, was bought at a price which was unacceptable having regard to contemporary community standards (see Toohey, Gaudron and Gummow JJ in Swaffield at [124] and [127]). I am not persuaded that the decision in Pavitt, or their Honours articulation of principle, compels me to a different conclusion in this case.

46. Applying the same analysis and the principled approach to which their Honours referred, to the extent that any part of the Crown’s tender of the conversation between the accused and Harry on 24 May 2013 contains admissions, I would not exercise the discretion in s 90 to exclude the evidence. In my review of the recorded conversation, there is nothing in what the accused says to Harry about Plan B or how Plan B might be styled, or his dilations upon the case against him which is suggestive of unreliability, in the sense that is customarily given to that concept at common law when the admissibility of an admission by an accused is under challenge. Neither am I satisfied that the use of Harry as an undercover officer, briefed to engage the accused, if possible, in further discussions about Plan B by the means he adopted might result in a conviction obtained at a price in conflict with community standards.

47. There is some necessary overlap in the operation of the discretions in Part 3.1 of the Evidence Act and the specific discretion to exclude admissions provided for in s 90. Section 135 addresses the danger that evidence might be unfairly prejudicial to an accused, with s 137 also being concerned with evidence, the probative value of which is outweighed by the danger of unfair prejudice.

48. Mr Turnbull’s submissions directed to the operation of s 135 were principally concerned with the quality of the audio recording. In his submission, it was so poor and so lacking in meaningful or intelligible content, that the probative value of what is said by the Crown to be evidence capable of constituting a consciousness of guilt is substantially outweighed by the danger that it will result in an undue waste of time in the jury’s deliberations because of the need for them to listen, perhaps repeatedly, to the recording in order to discern the little of what might be meaningfully extracted from it. He also submitted that there is a danger that the evidence will be both misleading and confusing where it is so bereft of adequate detail that the jury will be driven, despite my direction to the contrary, to adopt the transcript as the evidence and to interpret from the mere fact of the accused’s engagement with Harry a finding adverse to him, contrary to what the audio recordings are capable of revealing as a matter of fact.

49. The same submissions were repeated, in large part, in seeking to invoke the mandatory exclusion provided for in s 137. Mr Turnbull submitted that the discretion to exclude the evidence as “unfairly prejudicial” was invoked even in respect of those aspects of the conversation relied upon by the Crown as supportive of Witness A’s credibility (in particular, with regard to the duplicate key) given his challenge to Witness A’s honesty and reliability in cross-examination, since there is a risk of the jury misinterpreting the acccused’s silence (or murmured assent) when he is told the plan to use the key has been abandoned as an admission or a concession by him that he had provided that “paperwork” to Witness A.

50. I am satisfied that with appropriate direction the jury will approach an analysis of that part of the recording, as with all passages that may be used by them in a way that is adverse to the accused, with appropriate care and caution before drawing the adverse inferences relied upon by the Crown. As I have sought to emphasise, the probative value of the significant passages in the recording of the conversation is not so diminished by the quality of the recording to justify its exclusion as failing to meet the test for admission in s 55 of the Evidence Act or in consideration given to the discretion to exclude the evidence under s 90. Applying the same analysis, qualified necessarily by the question of what is meant by what is discernible being a matter for the jury, I am not of the view that the probative value of the evidence is outweighed by the risk of unfair prejudice to the accused as provided for in s 137 or the dangers with which s 135 is concerned.

**********

Decision last updated: 01 March 2017