Ridley v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0166

LIAM RIDLEY (A PSEUDONYM)	Applicant
v
THE KING	Respondent

---

JUDGES:	TAYLOR JA and FOX AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2024
DATE OF JUDGMENT:	11 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 308
JUDGMENT APPEALED FROM:	DPP v [Ridley] (County Court of Victoria, McInerney J, 2 September 2024).

---

CRIMINAL LAW – Interlocutory appeal – Pending trial for aggravated home invasion – Admissions to police undercover operatives in cells and in a record of interview – Admissions alleged to have been made after an earlier, unrecorded interview – Failed police recording – Whether the trial judge erred in refusing to exclude the admissions – No error – Application for leave to appeal refused.

Evidence Act 2008 ss 85, 90.

Em v The Queen (2007) 232 CLR 67 – R v Em [2003] NSWCCA 374 – House v The King (1936) 55 CLR 499 – DPP (NSW) v Sullivan [2022] NSWCCA 183, considered.

---

Counsel
Applicant:		Mr H Rattray
Respondent:		Mr D Porceddu and Mr M Turner
Solicitors
Applicant:	Malkoun & Co Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

Having had the advantage of reading in draft the reasons for judgment of Fox AJA, I agree with them and the order proposed.

FOX AJA:

Introduction

The applicant faces trial in the County Court on one charge of aggravated home invasion and six other charges arising from an incident that occurred on 24 April 2023. It is alleged the applicant, together with three co-offenders, forced his way into a house in Melton South. The occupants of the house were assaulted, shots were fired, and a car and other items were stolen.
The applicant is jointly indicted with one of the co-offenders, KL. The applicant is also charged with two charges of possessing a drug of dependence, arising from the execution of a search warrant at his premises on 23 May 2023. He intends to plead guilty to those charges.
On 23 May 2023, the applicant was arrested in relation to the aggravated home invasion and conveyed to the Geelong police station. During the course of the day, the applicant participated in a record of interview, which occurred in three stages. He was also lodged in the police cells on two occasions, where it is alleged he made certain admissions to two undercover operatives.
The applicant applied to exclude what has been called the ‘third interview’. The applicant also applied to exclude the evidence of what he said to the undercover operatives on the two occasions he spoke with them in the police cells.
On 2 September 2024, the trial judge refused the applications (‘the interlocutory decision’). On the same day, the trial judge certified the interlocutory decision pursuant to s 295(3)(a) of the Criminal Procedure Act2009 (‘CPA’). The applicant seeks leave to appeal against the interlocutory decision on a single ground formulated as follows:
The learned trial judge erred in refusing to exclude evidence of admissions made by the applicant on 23 May 2023 during the third interview, and during two separate interactions with undercover police officers in the Geelong police cells.
Particulars
(a)The use of the admissions would result in an unfair trial;
(b)The reliability of the admissions was a relevant factor capable of affecting the unfairness of the use of the admissions at trial; and

(c)The circumstances in which the admissions, contained in the third interview, were made were not ‘such as to make it unlikely that the truth of the admissions was adversely affected’.

For the reasons that follow I would refuse the application for leave to appeal.

The prosecution case

The prosecution allege that at the time of the incident, one of three complainants, MG, was residing at a house in Fraser Street, Melton South. In the early hours of the morning of 24 April 2023, MG and her boyfriend, AS, were asleep in the front bedroom. Another woman, JF, was sleeping on the couch in the living room. The applicant, KL and two other males kicked in the front door and entered the house. The applicant had with him a handgun, KL had a rifle and one of the unknown co-offenders had a knife. The offenders demanded keys, drugs and money. At one point, the applicant pointed his handgun in the direction of AS and discharged the firearm at least twice. AS was not shot, but he was struck in the face by the applicant using the handgun, and slashed on the left arm by an unknown co-offender using the knife. The premises had external CCTV cameras which captured the offenders entering the residence. There was also an internal CCTV camera, which captured the person alleged to be the applicant pointing his firearm towards AS and discharging at least two shots.
The offenders took a safe from the address and carried it outside. They re-entered and took possession of MG’s handbag, the keys to a Polo motor vehicle and assorted jewellery. KL and the two unknown co-offenders left in the Polo. The applicant ran from the scene and entered a waiting white Mazda CX5 (the ‘Mazda’), belonging to the applicant’s girlfriend, RM. It is alleged RM was waiting in the Mazda, and the applicant drove them both away from the scene. Police, who happened to be patrolling nearby, observed the Mazda had no front number plate attached. They commenced a pursuit of the Mazda, which began travelling at speeds in excess of 150 kmh. Police ceased their pursuit due to the high speeds. The Mazda was photographed by a traffic camera. It had a distinctive sticker on the rear windscreen, and a rear registration plate PHZ607.

Arrest of KL

KL was arrested on 4 May 2023 after fleeing from the driver’s seat of a vehicle which had been involved in a police pursuit. A rifle, alleged to be the one used by KL during the aggravated home invasion, was located in the vehicle. Two fraudulent number plates PHZ607 were also located. KL declined to be interviewed in relation to the Melton South incident.

Investigation and arrest of the applicant

In early 2023, the applicant was a person of interest in relation to the discharge of a firearm in Lalor. On 15 March 2023, a Firearm Prohibition Order compliance search was conducted by police at the applicant’s address. A white Mazda CX-5 was observed to be in the driveway with registration 1FA3NC. The vehicle was registered to RM and had a distinctive ‘B&M Autoworx’ sticker on the rear windscreen. The prosecution allege this is the same Mazda, but with false plates attached, that was used on the night of the Melton South offending.
Police obtained mobile phone and cell tower records, which placed the phones of the applicant, RM and KL in the Melton area at the time of the alleged offending. On 15 May 2023 police released to the public, via the media, the external CCTV footage of the aggravated home invasion and information about the Mazda. The information included that the Mazda had a distinctive sticker on the rear windscreen. Two days later, the Mazda was captured by the Automated Number Plate Recognition System travelling on Port Arlington road. The rear windscreen sticker had been removed. It is alleged the applicant removed the sticker after seeing the media release.
On 23 May 2023, police and members of the Special Operations Group executed a search warrant and arrested the applicant and RM at their address in Newcomb. The Mazda was in the driveway with the correct plates attached, but did not have the sticker on the rear windscreen. There was also a second vehicle at the property, which had a ‘B&M Autoworx’ sticker affixed to the rear windscreen. It is alleged this is the same sticker that was originally on the Mazda.
Once the applicant was at the Geelong police station, the following occurred:
(a)A record of interview between Detective Senior Constable Jovel (‘informant’) and the applicant commenced at 2:08 pm. The applicant was ‘put on tape’; that is, he was told he was to be interviewed in relation to an aggravated home invasion that occurred on 24 April 2023 in the Melton South area, and given his caution and rights. The interview was suspended at 2:11 pm (‘first interview’).
(b)The record of interview recommenced at 4:58 pm. The applicant answered a number of questions, and the interview was suspended at 5:48 pm. This interview was not recorded due to an equipment failure (‘second interview’).
(c)The applicant was lodged in the police cells, where he met and spoke with two undercover operatives, ‘Luca’ and ‘Frankie’ (‘first undercover interaction’).
(d)The applicant was returned to the interview room and at 6:48 pm, the record of interview recommenced. The police did not then know of the earlier equipment failure. The interview was recorded and concluded at 7:11 pm (‘third interview’). At the conclusion of the interview, the applicant was told he would be charged with aggravated home invasion.
(e)The applicant was then interviewed by different police officers in relation to a different incident. Detective Senior Constable (‘DSC’) Gilbert questioned the applicant about an alleged incident that occurred on 16 February 2023, in which a firearm was discharged at an address in Lalor (‘Gilbert interview’). The applicant answered ‘no comment’ when questioned about the incident itself.
(f)At around 8:00 pm, the applicant was returned to the police cells and again interacted with the same undercover operatives (‘second undercover interaction’).
At 8:10 pm, police learned that the second interview had failed to record. They did not conduct any further interviews with the applicant. Both the undercover interactions are audio recorded, and there is video (but not audio) footage from the police cells showing the interactions. The undercover operatives had seen the media releases about the incident prior to interacting with the applicant, but had no detailed information about what police alleged or what evidence police had obtained.
The informant and corroborator took notes during the second interview, which they later transcribed after learning the recording had failed. The notes are reasonably detailed, but are not a complete account of what occurred during the second interview. The prosecution do not seek to rely on anything said by the applicant during the second interview. The prosecution seek to rely on admissions (including implied admissions)[1] made by the applicant during the third interview, first undercover interaction and second undercover interaction.
[1]A Notice of Incriminating Conduct dated 17 August 2024 was filed and served on day four of the pre-trial hearing.

The disputed admissions

The alleged admissions made by the applicant during the first undercover interaction include:
(a)He was in his ‘missus’ new car’. He used a false number plate, but police had taken photos of the car a month prior. The vehicle was a CX5, which had a sticker on it at the time, but he removed it. He does not know what happened to the sticker, and described it as a mechanic’s sticker.
(b)His girlfriend was with him at the time but she was not involved. They parked around the corner and then the boys ran up and did it.
(c)He was ‘flying’ during the police chase on the way back from ‘the job’, and he told police he would plead guilty to evading police.
(d)One of the boys’ cars ‘fucked up’, and they were broken down by the side of the road, so he thought he would go and pick them up in his ‘missus’ car’.
During the third interview the applicant made the following alleged admissions:
(a)On the night in question, he was giving people a lift.
(b)He and his girlfriend were in the area, but he did not go into the house.
(c)One person came back to the car. He drove away because he wanted to help this person out.
(d)He gave a lift to four people into the area, and one came back with him.
During the second undercover interaction, it is alleged the applicant made the following admissions:
(a)‘Three or something’ shots went off there. The shots were from the ‘small’ not the ‘long one’.
(b)He wonders why the police did not find the pistol. When he got up this morning, the black box was just next to him, so he threw it in that.
(c)He did not get rid of the ‘small one’ because he loves it.
(d)It doesn’t matter that he used it, because they (the police) can only match it if you leave a shell and the shells don’t come out.
(e)His mate got done with the ‘long one’.
(f)They were going to use Magnums and he thought ‘every cunt’ was going to have a kick at the door.
(g)His missus was there at the time, and the police are trying to tell him that she can be seen on the video.
(h)He didn’t want to do it, but his mate wanted to do it just to ‘fuck the dealer up’. His mate got him to go there with him and now it’s ‘fucked’. He didn’t get much out of ‘Lappers’ (KL).
(i)The dealer was pushing ‘smack, gear, coke – everything’. He had it all. The safe was full but it had nothing good in it. They didn’t ‘crack’ it open because it was already open.
(j)He doesn’t know who the person they attacked is. KL got told by other people to go and do it in Melton.
(k)He did hit him and his mate was standing on his nuts (the inference is that the applicant is referring to AS). He ‘gave it to him’, and AS was crawling to grab his pistol. His mate tried to make AS take him to where the ‘shit’ is. The applicant said he was watching and, ‘I’m like, pow’.
(l)They had a ‘longie’ and a ‘small’. He said, it’s like say you come running through a door at me, ‘Just turn, pow’. He agreed that he had ‘skimmed him’. The police tried to say in the interview that they sliced his face open. His mate had a knife.
(m)He knows he’s lucky he didn’t shoot the ‘cunt’ in the head, and he’s lucky he didn’t kill anyone.
(n)He took his missus’ car and parked it around the corner. The others left in another car, it was a Polo.
(o)The guy kicking the door was Jackson Raymond. He didn’t even know the other guy they went with.
(p)He was at least 400 metres away and he was running hard when they left. The other boys just walked out and jumped in the car. They took the car belonging to the owner.

The hearing below

The pre-trial hearing occupied five-and-a-half days. The applicant tendered a report of Dr Laura Anderson, psychologist. Dr Anderson conducted a neuropsychological assessment of the applicant in July 2024, including an assessment of his cognitive functioning. The applicant was 21 years old at the time of the Melton South incident. He has a lengthy Children’s Court criminal history which included dispositions of Youth Justice detention. This is his first time in adult custody. His general intelligence fell in the ‘very low to low average’ range for his age. Dr Anderson considered it plausible that Autism Spectrum Disorder or Social (Pragmatic) Communication Disorder may be a ‘more appropriate conceptualisation’ for the applicant’s difficulties, but it was beyond the scope of her assessment to provide a definitive diagnostic opinion. Dr Anderson also considered it highly probable that the applicant met the diagnostic criteria for ‘Language Disorder’, and was of the ‘firm clinical opinion’ that the applicant demonstrated significant weakness in his verbal skills. Dr Anderson ‘hypothesised’ that the applicant tends to ‘go along’ with discussions, or redirect discussions, to cover up his underlying cognitive and comprehension difficulties. She considered it ‘entirely probably (sic) that [the applicant] engaged in conflated or embellished discussions with undercover operatives who he perceived at the time to be potential ‘peers’’. Dr Anderson gave evidence on a voir dire consistent with her report.
DSC Gilbert and the informant were called by the prosecution at the request of the applicant. The informant said the CCTV from the front door of the Melton South residence was the only CCTV footage shown to the applicant during the second interview, and he was very sure about this. The informant was cross-examined over several days and questioned at length about what he could recall about the second interview. He said he had a limited memory of what occurred during the second interview beyond what was recorded in his notes. He said the purpose of the third interview was to question the applicant about matters that had arisen since the execution of the search warrant, and ‘reiterate’ matters raised in the second interview.

Applicant’s submissions to the trial judge

The applicant contended that all the alleged admissions should be excluded pursuant to s 90 of the Evidence Act 2008 (‘EA’). The applicant noted that undercover operatives are excluded from the definition of ‘investigating official’[2] and s 85 could have no application to the undercover interactions. Somewhat belatedly, the applicant sought to rely on s 85 of the EA to exclude the third interview, but essentially relied on the same matters when addressing both ss 85 and 90.
[2]EA Dictionary pt 1 (definition of ‘investigating official’).
The applicant argued that the failure to record the second interview, while not deliberate, casts real doubt on the reliability of the applicant’s later admissions. During the second interview, the police told the applicant a great deal of information about the aggravated home invasion and the evidence they had gathered. However, the precise detail of what the police said, and how the applicant reacted, is lost. This loss has deprived a jury of the ability to compare what the applicant was told by police, and the content of his later admissions. This is significant, as defence will seek to suggest that the admissions made by the applicant in the second undercover interaction are based on information he learned from the police, and should be rejected as untruthful and unreliable.
The applicant also argued that by interposing the Gilbert interview, the reliability of the applicant’s admissions was jeopardised. There is a real risk that some of the admissions are ambiguous, and it may be the applicant was referring to the Lalor matter and not the Melton South incident.

The interlocutory decision

The learned trial judge provided written reasons for his decision. He dealt first with the submission to exclude the third interview pursuant to s 85. His Honour found that the third interview took place ‘to discuss matters which had arisen from the execution of the search warrant’ and ‘revisit’ matters that had been raised in the second interview. His Honour found no indication of ‘oppressive questioning, threats or promises’[3] (none was suggested). The failure to record the second interview was ‘obviously not to be desired’,[4] but not the fault of any police officer. His Honour noted that the applicant had denied involvement in the aggravated home invasion, but admitted to other matters such as being in the location, driving people to the scene and involvement in a police pursuit. His Honour was satisfied, on balance, that the truth of the admissions was unlikely to have been adversely affected by the circumstances relied on by the applicant. Those circumstances included the failure to record the second interview.
[3]DPP v Ridley (a pseudonym) (County Court of Victoria, McInerney J, 2 September 2024) [20] (‘Ruling’).
[4]Ibid [16].
Still dealing with the third interview and turning to s 90, the trial judge referred to what this Court had said in DPP v James (a pseudonym),[5] and observed that s 90 provides a residual or ‘safety net’ discretion and the onus rests on the applicant.[6] His Honour noted that the applicant did not give any evidence, and in so far as counsel relied on submissions as to the applicant’s mental state at the time he made the admissions, the court can only rely on inferences drawn from circumstantial evidence which falls well short of the best evidence. His Honour observed that in the third interview, the applicant continued to make selective ‘no comment’ answers; corrected the informant as to when the sticker was taken off the Mazda; and complained bitterly about police behaviour.[7] His Honour considered the opinion of Dr Anderson, but found the applicant did not adopt matters put to him in the third interview. His Honour found there was no indication that the applicant confused the third interview with the matters put in the Gilbert interview. (The Gilbert interview occurred after the third interview, so the applicant could not have done this in any event).
[5][2016] VSCA 106.
[6]Ruling [25]. His Honour also referred to Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 (‘Em’).
[7]Ibid [40].

The trial judge detailed his findings as to how the applicant behaved during the undercover operative interactions. He described the applicant as a ‘robust responder’ who initially denied any role in the aggravated home invasion. Prior to the second undercover interaction, the applicant had provided strong ‘no comment’ answers during the Gilbert interview, and he clearly understood the difference between the Lalor and Melton South allegations. In the second undercover interaction, the applicant is laughing, including laughing at what he sees as the inefficiency of the police when they searched his property under warrant. The applicant goes on to make detailed admissions.
His Honour accepted Dr Anderson’s view of the ‘need for caution’ when considering all the admissions made by the applicant, and stated:
I have no hesitation in Finding that the defence have not proved that [the applicant] has, as a result of discussions with the undercover operatives or the Informant, adopted any behaviour put to him in the undercover conversations or in the third record of interview, whereby he has falsely implicated himself by his admissions, in the sense of being “so overborne”, as referred to in James [[23]–[24]], despite there being no impropriety alleged.
In this regard I reject Dr Anderson’s probable scenario.[8]
[8]Ibid [42]–[43].
Finally, the trial judge emphasised that when considering s 90, the focus must be upon the fairness of using the evidence at trial. Whether the statements made by the applicant are in fact admissions, and whether they are reliable, are ultimately matters for the jury to determine. The question of whether the admissions are themselves unreliable is not a matter for the trial judge, but if he were asked to determine that matter, he would find no unreliability in any of the admissions.[9]
[9]Ibid [58].

Applicant’s submissions in this Court

In this Court the applicant abandoned any reliance on s 85 of the EA and relied exclusively on s 90.
The applicant submitted that the proper exercise of the unfairness discretion necessarily involved analysing whether the applicant’s trial could be conducted fairly if the evidence of the admissions was put before the jury. The jury would need to determine whether the alleged admissions constituted truthful admissions by the applicant of his involvement in the crime, or lies amounting to implied admissions that he committed the crime. The applicant conceded there is evidence of the admissions themselves, and other evidence of the alleged offending. However, because the second interview was not recorded, the defence can only rely on ‘unsatisfactory evidence’ to make good their argument that the applicant’s admissions, and in particular the admissions made during the second undercover interaction, are neither reliable nor truthful. The applicant faces ‘unfair forensic disadvantages in the conduct of the defence’, as a jury cannot know what occurred during the unrecorded second interview.
Further, the applicant will be faced with an ‘impossible forensic decision’ concerning the Gilbert interview. The applicant submitted the Gilbert interview ‘jeopardised the reliability of the applicant’s admissions in that it created real scope for ambiguity’. On the one hand, it would be helpful for the applicant to refer to the Gilbert interview in order to ‘contextualise and explain’ the admissions made to the undercover operatives. However, the interview contains otherwise inadmissible and highly prejudicial allegations of other alleged offending involving a firearm which the applicant would not want to put before the jury.
It was submitted that the applicant ‘may well’ have played the role of ‘hardened criminal’ when he made the admissions to the undercover operatives, as ‘in the applicant’s mind’ it would have served no purpose to deny the alleged offending to two people who had seen the footage on the news and had said, admiringly, that the people who kicked in the door were ‘mad cunts’. This is particularly so given they were older men, and the applicant thought he was to be remanded with them.
The applicant submitted that the reliability of an admission could be considered when assessing whether it would be unfair for the prosecution to rely on the admission at trial. The applicant relied on what was said by a single judge in DPP v Natale,[10] where Bell J stated:
Of section 90 it is therefore correct to state, as T Forrest J recently did in R v Kerr (Ruling No 1), that the ‘unreliability of the admission is an important consideration but it is not conclusive, or a necessary prerequisite of exclusion. In the application of s 90, assessing the unreliability of an admission as a factor affecting the unfairness of its use at trial by reference to the circumstances in which it was made is different to assessing (although it may encompass considering) whether those circumstances were such as to make it unlikely that its truth was adversely affected.[11]
[10][2018] VSC 339.
[11]Ibid [33] (Bell J).
The applicant submitted the trial judge was thereby wrong when he refused to consider the reliability of the alleged admissions. Further, the applicant argued the trial judge wrongly imposed a positive onus on the applicant to prove that his admissions to the police and to the undercover operatives were due to his will being ‘overborne’ in the way suggested by Dr Anderson. The applicant submitted he bears no such onus.
The applicant submitted that the conduct of the undercover operatives, while not alleged to be improper, may nonetheless have impacted on the reliability of the applicant’s admissions. The trial judge was wrongly of the view that such a matter could not be considered pursuant to s 90 of the EA. The applicant submitted the behaviour of the undercover operatives may have contributed to the risk that his admissions may be unreliable, and this should have been considered by the trial judge in the exercise of his discretion.

Respondent’s submissions in this Court

In written submissions, the respondent submitted that ‘even if reliability can be considered under s 90, there is no unfairness in these admissions being admitted’. In the course of the hearing and in answer to a direct question, the respondent submitted that reliability is a matter which may be considered under s 90.
The respondent submitted that the failure to record the second interview has not disadvantaged the applicant or created any forensic disadvantage. Indeed, the applicant has the advantage that the second interview, including any admissions he made, cannot be used against him. Further, if it is relevant to establish what occurred during the second interview, this can be done through cross-examination of the informant. The second interview is also ‘recapped’ in the third interview.
The respondent submitted there is no evidence to support the applicant’s assertion that he learned about his alleged offending during the second interview, and then used this information to make false admissions to the undercover operatives after he learned he would be charged. The admissions were volunteered by the applicant. They were not made in response to leading questions, and the applicant admitted details that were not known to the police at the time.
The respondent submitted the trial judge fairly considered the opinion of Dr Anderson, and was correct to conclude that the applicant was not influenced by the police or the undercover operatives to make untrue admissions. The decision to interpose the Gilbert interview did not result in any unfairness to the applicant. The applicant does not conflate the Lalor and Melton South incidents, and in the second undercover interaction, clearly distinguishes between the two incidents. The applicant maintains he is innocent of the Lalor shooting, while giving various incriminating responses about the Melton South incident.

Standard of review

At the hearing, a question arose as to whether the standard of review by this Court of a trial judge’s decision to exclude evidence under s 90 is the ‘correctness standard’[12] or subject to the principles stated in House v The King[13] (‘House’). The applicant submitted the principles stated in House apply. The respondent was inclined to agree, but sought and was granted leave to file further material addressing the question. In that further material, the respondent stated somewhat impenetrably that, having reviewed both House and Moore (a pseudonym) v The King,[14] (‘Moore’), the respondent confirmed that ‘the correct test is that outlined in House, as applied in Moore’.
[12]Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531.
[13](1936) 55 CLR 499; [1936] HCA 40 (‘House’).
[14][2024] HCA 30 (‘Moore’).
In Moore, the High Court considered whether, in hearing an interlocutory appeal concerning a trial judge’s refusal to exclude evidence under s 137 of the EA, the Court of Appeal was required to apply the principles in House applicable to the review of discretionary decisions or the ‘correctness standard’. The High Court held that the Court of Appeal was obliged to apply the correctness standard. The determination turns on whether the decision is a ‘discretionary decision’, such that a range of outcomes are tolerated, or whether the decision demands a unique outcome.[15]
[15]Ibid [15] (Gageler CJ, Edelman, Steward, Gleeson and Beech‑Jones JJ).
The applicable standard on an interlocutory appeal from a decision made pursuant to s 90 remains to be authoritatively determined. While the better view might be that the correctness standard applies,[16] it is not necessary to decide this issue for the purpose of this appeal, as the result is the same regardless of which standard of review is applied.
[16]In DPP (NSW) v Sullivan [2022] NSWCCA 183 [38] (‘Sullivan’), Beech-Jones JA suggested it may be that the correctness standard applies, at least so far as s 90 requires a determination that it would be unfair to use the evidence. However, his Honour did not decide the question.

Consideration

Section 90 – Discretion to exclude admissions

Section 90 of the EA states:
In a criminal proceeding, a court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution; and
(b)having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.
The section derives from the common law fairness discretion or ‘Lee discretion’.[17] The unfairness may arise in different ways and cannot be described exhaustively.[18] The focus is on whether the use of the evidence at trial would be unfair. As Gummow and Hayne JJ stated in Em:
…the central issue is whether the evidence of admissions should not have been admitted because, having regard to the circumstances in which they were made, it would be unfair to the defendant to use the evidence. That question requires consideration of whether there was identified some aspect of the circumstances in which the admissions were made that revealed why the use of the evidence, at the trial of the person who made the admissions, ‘would be unfair’. That is, the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as ‘fair’ or ‘unfair’.[19]
[17]R v Lee (1950) 82 CLR 133; [1950] HCA 25; Haddara v The Queen (2014) 43 VR 53, 56 [3] Redlich and Weinberg JJA; [2014] VSCA 100.
[18]Em (2007) 232 CLR 67, 89 [56] (Gleeson CJ and Heydon J), [109] (Gummow and Hayne JJ).
[19]Ibid 103 [107] (Gummow and Hayne JJ).
The defendant bears the burden of persuasion.[20] The section is not limited to admissions made by an accused,[21] although that is most commonly the situation. The question of why the prosecution want to adduce the evidence — that is, the use the prosecution seek to make of the evidence — will not ordinarily be a relevant consideration. Whether the prosecution seek to use the admission as to credit, or as an implied admission to the crime, or for some other purpose such as to establish a motive or contradict a proffered alibi, is not a relevant inquiry.[22]
[20]Ibid 91 [63] (Gleeson CJ and Heydon J).
[21]Ibid 101 [94] (Gummow and Hayne JJ).
[22]Cf Sullivan, where Beech-Jones JA considered that the use for which the prosecution wish to use the evidence may be relevant, as it may be tied to the question of unfairness.
The probative value of the admission has little or no bearing on the exercise of the discretion.[23] If, having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence, then the admission would be excluded even if its probative value is high. Similarly, if the defendant fails to establish that, having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence, then the fact the evidence may have low probative value is not a reason to exclude it pursuant to s 90.
[23]R v Em [2003] NSWCCA 374, [110] (Ipp JA, Hulme and Howie JJ).
‘Unfairness’ has been described as a ‘highly fact-specific concept’.[24] Relevant considerations include whether the admission was voluntary; the means used to obtain the admission; whether there has been illegal or improper conduct on the part of an investigating official;[25] the defendant’s mental or emotional state, or state of sobriety; and whether the defendant has been effectively robbed of his right to silence. The unfairness associated with the use of an admission might extend to forensic disadvantages that an accused might suffer at trial.[26]
[24]DPP v Myles (2021) 293 A Crim R 166, 175 [27] (Priest, T Forrest and Walker JJA); [2021] VSCA 324.
[25]Section 138 of the EA addresses this question. However, arguably, there may be conduct that does not result in the exclusion of an admission pursuant to s 138, but does lead to, or at least contribute to, the exclusion of the admission in the exercise of the s 90 discretion. See also R v Weaven (Ruling No 1) [2011] VSC 442 (Weinberg JA) at [38], where his Honour noted the potential overlap between ss 90 and 138.
[26]Haines v The Queen [2018] NSWCCA 269, [271] (Hoeben CJ at CL, Davies and Button JJ).
In Em, Gummow and Hayne JJ stated that when considering s 90, it is necessary to read the EA as a whole, with particular reference to ss 84, 85, 86, 137, 138 and 139.[27] The admissibility of the out‑of‑court admission must first be considered under those sections, and s 90 will be engaged only as a final or ‘safety net’ provision.[28]

Section 90 and reliability

[27]Em (2007) 232 CLR 67, 101 [96] (Gummow and Hayne JJ).

[28]Ibid 104 [109] (Gleeson CJ and Heydon J).

In Em, Gleeson CJ and Heydon J held that the reliability of evidence was a factor affecting the fairness of its use.[29] They noted that it is possible for an accused person to invoke s 90 successfully, even if they fail to invoke, or fail to successfully invoke, any other ground of exclusion.[30] Gummow and Hayne JJ held that considerations of reliability may have a role to play if the statement was not made in the course of official questioning (s 85(1)(a)), or 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 continued (s 85(1)(b)). However, if s 85(1) is engaged, and the evidence not excluded pursuant to s 85(2), then considerations of reliability are not relevant to the exercise of the s 90 discretion.[31]
[29]Ibid 93 [72]–[73] (Gummow and Hayne JJ). Their Honours referred to R v Swaffield (1998) 192 CLR 159 at 197 [78] where Toohey, Gaudron and Gummow JJ stated: ‘Unreliability is an important aspect of the unfairness discretion but it is not exclusive’.
[30]Ibid 83 [42] (Gleeson CJ and Heydon J).
[31]Ibid 105 [113] (Gummow and Hayne JJ).
Arguably, there is a possible difference between these two approaches, at least in so far as the interaction between ss 85, 90 and reliability is concerned. If there is a difference, it is not necessary to resolve that here, as the applicant relies only on s 90 to exclude the evidence.
Reliability may be a factor affecting the fairness discretion, but it is not determinative. Whether an admission was made, and whether it is reliable, are ordinarily questions for a jury to determine. However, the circumstances in which an admission is made may call into question the reliability of the admission for the purposes of s 90. In Director of Public Prosecutions (NSW) v Sullivan[32] the respondent, who was highly intoxicated, had fought with the deceased outside a service station. In the course of the fight, the deceased went onto the road and was struck and killed by a passing car. The respondent was charged with manslaughter. A significant issue in the trial was whether the acts of the respondent forced the deceased onto the roadway. The respondent participated in a record of interview. He remembered some matters, but in part, his answers were speculation. He also participated in a ‘walkthrough’ with police. Expert evidence concerning the effects of intoxication on memory was called by both the appellant and the respondent. The trial judge found that the respondent lacked a genuine recollection of what occurred, and the respondent’s answers amounted to no more than him offering a hypothesis as to what might have happened, or engaging in reconstruction, such that it would be unfair to use the admissions at trial. The trial judge excluded some of the answers in the record of interview pursuant to s 90.[33] The NSW Court of Criminal Appeal dismissed an interlocutory appeal by the Director against the ruling.
[32][2022] NSWCCA 183.
[33]The trial judge also excluded evidence of the ‘walkthrough’ pursuant to s 135 of the EA. This was found to be in error. It was unclear whether the trial judge had also considered s 90 of the EA, and the Court of Appeal remitted the question of whether the walkthrough should be excluded pursuant to s 90 of the EA to the trial judge.
Reliability is not a factor that will necessarily favour an accused. There may be matters that positively support the reliability of a particular admission. On the other hand, there may be matters or material that casts doubt on the reliability of an admission. Whether that would be sufficient for a judge to conclude that it would be unfair to an accused to use the evidence will depend upon all the circumstances of the case.

The third interview

By abandoning reliance on s 85, the applicant has arguably conceded that the circumstances were such as to make it unlikely that the truth of the admissions was adversely affected. Section 85 is the provision ‘particularly directed to unreliable confessions’.[34] Here, the applicant pressed the same arguments in support of s 90 that he had previously relied on in support of s 85, which included but were not limited to the potential unreliability of the evidence. The applicant relied, in particular, on the failure to record the second interview.
[34]Em (2007) 232 CLR 67, 83 [41] (Gleeson CJ and Heydon J).
No criticism is made of the way police conducted the third interview. The questions were not leading, confusing or unduly persistent. The applicant answered responsively and voluntarily. He was unaffected by drugs or alcohol, and did not suffer from any impairment or disability. Dr Anderson does not suggest that the applicant was unable to follow or understand the police questioning. There is nothing to suggest the applicant was unable to manage the situation he was in. He was capable of choosing which questions he would answer, and when he would respond with ‘no comment’. He complained about the way police behaved during the execution of the search warrant, and described them as ‘just being dogs’. He wanted to know if they had charged anyone else with aggravated home invasion, and wanted to know who the police suspects were. The Gilbert interview occurred after the third interview, and thus has no relevance when considering the admissibility of the third interview.

Turning to the alleged unfairness caused by the failure to record the second interview. In a different context, the High Court in R v Edwards[35] considered the impact of lost material on the fairness of the trial. In that case, the issue was whether the appellants, who were pilots, had taken off without turning on the necessary runway lights. The lost evidence was the electronic record of the pilot activated lighting system and information recorded on the plane’s flight data recorder. The accused sought a permanent stay on the basis that objective evidence was lost, and that evidence would have resolved the issue of whether the runway lights were active at the relevant time. The primary judge stayed the indictment. The Crown appealed to the High Court. In upholding the appeal, the Court stated:
Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.[36]
[35](2009) 83 ALJR 717; [2009] HCA 20.
[36]Ibid 722 [31] (Hayne, Heydon, Crennan, Kiefel and Bell JJ).
Here, the applicant is able to adequately explore the circumstances of the second interview before a jury, should he wish to. There are notes of what occurred, compiled by both the informant and the corroborator. The informant may be cross-examined as to what occurred during the second interview. The third interview discloses, at least in part, what occurred during the second interview. At no point during the third interview did the applicant contradict or dispute what was put to him about the second interview. The failure to record the second interview has not resulted in any unfair forensic disadvantage to the applicant. Indeed, when confronted with things he had said during the second interview, the applicant used the opportunity to answer ‘no comment’ to matters which it seems he had earlier admitted. For example:
Q 69 You told me that you wanted to make admissions in relation to the evade. O.K.? That yes, you took off from police officers and yes, that — that was [RM’s] car that got through the traffic camera office earlier. O.K.? Do you remember having that conversation?
A No comment.
A jury will be able to assess the applicant’s third interview, and the loss of the second interview does not remove, restrict or unfairly impede a jury’s ability to do so. If necessary, a forensic disadvantage direction concerning the unrecorded second interview can be given. There is nothing in the circumstances which would make it unfair to use the evidence of the third interview in the applicant’s trial.

The first and second undercover interactions

It is convenient to consider the first and second undercover interactions together. During both interactions, the applicant was sober and rational. He was not subjected to threats, inducements, pressure or intimidation. The applicant talks and laughs freely with the undercover operatives, and volunteers information.
During the first undercover interaction, the applicant admits being in the Melton South area, and evading police at high speed in the Mazda. He volunteers the name of his co-accused, KL, and asks the undercover operatives if they know him. There is nothing about the circumstances of the interaction that casts any doubt on the reliability of these representations. When the undercover operatives tell him they saw the footage on the news, and talk admiringly of his criminal behaviour, the applicant does not make admissions to being one of the offenders so as to impress people he believes are older and more hardened criminals. Rather, the applicant says he told police he did not do the aggravated home invasion, but he might have driven people there.
During the second undercover interaction, some of the representations made by the applicant arguably disclosed information that was not known to the police. For example, the applicant told the undercover operatives that a ‘Magnum’ firearm was used and such a firearm does not discharge bullet shells or casings. This is consistent with the crime scene examination, however the type of firearm used was not known to the informant at the time of the second interview. Contrary to the submissions of the applicant, the absence of independent evidence supporting the applicant’s admission does not mean the admission is, or may be, unreliable. In many cases, the subject matter of an admission is known only to the person making the admission.
Section 90 places the onus on the applicant to demonstrate that it would be unfair to allow the prosecution to use the evidence. However, it was not for the applicant to ‘prove’ he adopted the suggestions put to him by the undercover operatives, or prove he made false admissions in order to ‘fit in’ with people he thought were older criminals. To the extent the trial judge suggested otherwise, this was wrong. These were not facts that it was necessary for the trial judge to decide in the exercise of his discretion.[37] However, the trial judge’s assessment that, even when one takes into account the opinion of Dr Anderson, there was nothing to suggest the applicant adopted suggestions put to him by the undercover operatives, was plainly correct. It was the applicant who was volunteering the information and controlling the narrative. There is also nothing to support the argument that, during the second interaction, the applicant may have made false admissions because the undercover operatives remained admiring of what they had seen on the news, and were praising the applicant for being a ‘mad cunt’. Or, he made false admissions because he knew he was going to be remanded and wanted to impress his fellow cellmates. Such suggestions are merely speculative.
[37]Had they been, then s 142 of the EA requires the facts to be proved on the balance of probabilities.
The trial judge considered that it was not necessary to ‘look at the reliability of the admissions themselves’.[38] Despite this, he analysed the submissions made by the applicant, and held there was no reason to regard the reliability of the admissions as suspect. There is no reason to doubt the correctness of that conclusion. The applicant did not give evidence on the voir dire, and the judge was not required to determine whether the admissions were or were not true.[39]
[38]Ruling [56].
[39]EA ss 189(1), (3). Section 189(3) provides that in the hearing of a ‘preliminary question’ (defined in s 189(1)) about whether a defendant’s admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission’s truth or untruth is to be disregarded unless the issue is ‘introduced by the defendant’. Here, the applicant did not give evidence and the issue was not ‘introduced by the defendant’.
The applicant submitted that the failure to record the second interview means he faces an ‘unfair forensic disadvantage’ in the conduct of his defence. When asked to identify the unfairness, the applicant complained that he cannot call in aid what was said to him in the second interview, as the evidence of what was said is ‘unsatisfactory’. The applicant is therefore unable to effectively suggest to a jury that he learned the details of the alleged aggravated home invasion from the police in the second interview, and was largely repeating those details when he made the alleged admissions to the undercover operatives. This submission really only has relevance when considering the second undercover interaction. During the first undercover interaction, the applicant maintained he was not involved in the Melton South aggravated home invasion, and gave no account of what occurred.
There are several difficulties with the applicant’s submission. First, as noted above, what occurred during the second interview is not entirely unknown. There are the contemporaneous notes of both the informant and the corroborator. The informant has some memory of what occurred and may be cross-examined, albeit his memory is limited. Much of what was covered in the second interview was revisited in the third interview. Again, it is difficult to see what, if any, disadvantage will be suffered by the applicant by the failure to record the second interview. Arguably, he is advantaged, as admissions he made have been lost.
Secondly, the explanation proposed by the applicant, while ultimately a matter for a jury, lacks plausibility. It is difficult to accept that the applicant, despite having played no part in the events in Melton South, retained what he was told by police about the alleged offending and repeated that account to the undercover operatives, while also embellishing or adding to the story, or perhaps changing some details. Whether the second interview was or was not recorded, it is difficult to see how the applicant could successfully argue before a jury that he made detailed false admissions based on what he had learned from police without giving evidence about that matter. In Em, Gleeson CJ and Heydon J noted that the appellant only advanced one reason why what he said was unreliable, and it was a contention that the appellant falsely told detectives of his involvement in the crime to protect his friends. Their Honours noted that the appellant did not give evidence on the voir dire and so that explanation was not before the trial judge when the decision to admit the evidence was made. It was a contention later raised by the appellant in his evidence at trial. Gleeson CJ and Heydon J observed that even if the appellant’s contention had been advanced in evidence on a voir dire, it could not have caused the trial judge to regard the reliability of what the appellant said as suspect, as it is ‘highly implausible’ that anyone fearing prosecution for murder would admit to the murder to protect unnamed friends.[40]
[40]Em (2007) 232 CLR 67, 94 [73] (Gleeson CJ and Heydon J).
Thirdly, given the absence of direct evidence, the applicant’s state of mind at the time he made the admissions is only able to be inferred and there is no basis to infer his admissions were made for the reasons advanced by the applicant’s counsel. The evidence of Dr Anderson does not assist the applicant. She proffers a number of hypotheses, one of which is that the applicant may ‘go along’ with discussions, or redirect them where possible, in an attempt to conceal his underlying cognitive and comprehension difficulties and to ‘fit in’. However, that is not what occurred here. The applicant was voluntarily telling undercover operatives what had happened, including detailing who was involved, the weapons used and how he and his co-offenders left the scene. The applicant was not simply ‘going along’ with an account provided by another, or changing topics. He was responding to open-ended questions and providing a coherent narrative of what occurred and what he did.
Fourthly, it is relevant to consider the extent to which any unfairness can be mitigated by judicial directions. As noted above, any unfairness suffered by the applicant arising from the failure to record the second interview may be ameliorated by the giving of a forensic disadvantage direction.
Finally, there is no merit in the submission that by interposing the Gilbert interview, the admissions made by the applicant during the second undercover interaction are in some way ‘jeopardised’ or unreliable. It is clear the applicant understood the difference between the Lalor incident and the Melton South incident. When the applicant returns to the police cells after the Gilbert interview, he complains that the police are trying to charge him with the ‘Mill Park shooting in Thomastown’ (both suburbs are immediately adjacent to Lalor). When the undercover operative says that is not the one that was on the news, the applicant responds, ‘No’. He then goes on to discuss the Melton South incident. The Gilbert interview does not present the applicant with an ‘impossible forensic choice’, as its introduction would not explain the applicant’s admissions or otherwise assist the applicant. If there is a forensic choice to be made, it would not appear to be a difficult one.
His Honour was correct to conclude that it would not be unfair to the use the evidence of both the first and second undercover interactions in the trial of the applicant.
Conclusion
The application for leave to appeal against the interlocutory decision should be refused.

---

[2024] VSCA 308

11 December 2024