Tasmania v Standage - [2013] TASSC 63

[2013] TASSC 63

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Standage [2013] TASSC 63

PARTIES: TASMANIA, State of

v
STANDAGE, Stephen Roy

FILE NO:  463/2010
DELIVERED ON:  30 October 2013
DELIVERED AT:  Hobart
HEARING DATE:  2, 3, 4 July and 25 July and 21, 22 and 23 October 2013
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Criminal Law – Evidence – Confessions and admissions – Statements – Functions of judge and jury – Determination of admissibility – Voir dire proceedings – Whether written statements made to police contained admissions - Whether statements were made in the course of official questioning – Whether caution was required – Lack of audio visual recording of admissions – Whether reasonable explanation as to why an audio visual record could not be made – Records of oral questioning – Whether initials on police statement were for the purpose of identification or adoption of statements contained within document - Whether circumstances of police interview were improper or unfair – Whether use of admissions at trial is unfair or unfairly prejudicial to accused.
Evidence Act 2001 (Tas), ss85, 85A, 86, 88, 90, 137, 138, 139.
Criminal Code Act 1924 (Tas), s27.
Criminal Law (Detention and Interrogation) Act 1995 (Tas).

Em v R (2007) 232 CLR 67; Neill-Fraser v Tasmania [2012] TASCCA 2; Tasmania v Standage [2012] TASSC 88, considered.
Aust Dig Criminal Law [2740]

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Prejudicial evidence - Particular cases – Other matters – Voir dire proceedings – Scenario evidence - Audio and visual recordings of admissions or confessions made by accused during undercover police operations – Whether probative value of evidence is outweighed by danger of unfair prejudice to accused.

Evidence Act 2001 (Tas), s137.
Tofilau v R (2007) 231 CLR 396; W v R (2006) 16 Tas R 1; Neill-Fraser v Tasmania [2012] TASCCA 2; Gilbert v R (2000) 201 CLR 414; Leaman v R [1987] TASSC 21, A9/1987; R v Tofilau (No 2) (2006) 13 VR 28; Tasmania v Standage [2012] TASSC 88, considered.
Aust Dig Criminal Law [2682]

REPRESENTATION:

Counsel:

State of Tasmania: D Coates SC
Accused:T Jago SC

Solicitors:
State of Tasmania: Director of Public Prosecutions
Accused: Legal Aid Commission of Tasmania

Judgment Number: [2013] TASSC 63
Number of paragraphs: 173

Serial No 63/2013
File No 463/2010

STATE OF TASMANIA v STEPHEN ROY STANDAGE

REASONS FOR JUDGMENT ESTCOURT J

30 October 2013

Background

The accused, Stephen Roy Standage, is charged with two counts of murder. Count 1 alleges that he murdered Ronald Frederick Jarvis by shooting him at Nugent on 31 July 1992. Count 2 alleges that he murdered John Lewis Thorn by shooting him at Lake Leake on 24 August 2006.

Counsel for the accused object to the admission into evidence of certain conversations between the accused and police officers which took place on 14 August 1992, 7 April 1993, 15 December 1998 and 17 December 1998 and which, it is said by the State, contain admissions adverse to the accused's interests that are admissible as such on his trial.

The disputed evidence was taken on a voir dire and in addition to the oral and documentary evidence adduced by the State, I was provided with a summary of evidence agreed between the parties solely for the purpose of determining the issues on the voir dire. I now publish my rulings on the objections taken. The summary of agreed evidence is annexed to these reasons for decision. The other evidence is referred to, to the extent that I regard it as necessary or appropriate to do so.

The 14 August 1992 statement

On 14 August 1992, First Class Constables Sutton and Barber travelled to the accused's home at St Helens in order to take a statement from him in relation to the disappearance of Mr Jarvis, who had, on or about 11 August 1992, been reported to, now retired, Inspector Barry Bennett as a missing person by Mr Jarvis' girlfriend, Ms Debbie Marshall.

The accused was informed by Constables Sutton and Barber that they wished to speak with him about the disappearance of Mr Jarvis, and he told them that he did not wish to speak to them at his home as his elderly mother also resided there. He offered to meet them at the St Helens Police Station. The police officers left and the accused travelled to the police station in his own motor vehicle.

The accused was not cautioned at either his home or at the police station, and he was not expressly informed that it was optional for him to speak with police. He was not under arrest, however, and he was not, on the evidence of Constables Sutton and Barber, considered by them at that stage as other than a witness in a missing person investigation. I accept their evidence as to that.

Constables Sutton and Barber were extensively cross-examined on the voir dire by Ms Jago SC with a view to demonstrating that the accused was in fact a suspect, and that the circumstances of his interview were improper or unfair. Their evidence that the accused was regarded by them as a witness only, was not however, in any way undermined, and was consistent with, it seems to me, the incontrovertible evidence that, as at that date, there was no suggestion that Mr Jarvis was dead, much less murdered.

It was also contended on behalf of the accused that the content of the statement taken from him demonstrated that he was regarded by police as more than a mere witness.

The nine page statement taken from the accused by Constable Sutton in Constable Sutton's own handwriting covers, in the first three paragraphs, how the accused knew Mr Jarvis and the circumstances of their meeting on Friday 31 July 1992, which was the day the accused (or anyone else), last saw Mr Jarvis. The statement then goes on in the next four paragraphs, spanning over four pages, to document the accused's movements between 31 July and 14 August, and concludes with a paragraph covering when he first became aware that Mr Jarvis was missing.

The statement also includes some material that evidences that Constables Sutton and Barber were in possession of information about the relationship between the accused and Mr Jarvis that was not included in the statement of Ms Marshall, and which, on Inspector Bennett's evidence, was information likely to be beyond that which he had conveyed to the members of the taskforce he established to investigate Mr Jarvis' disappearance on about 11 August 1992.

I am satisfied that there was no impropriety or unfairness of any description involved in the circumstances of Constables Sutton and Barber's interview of the accused and the taking down in writing of a statement from him. In doing so they were not seeking to identify him as the author of a crime. The accused was believed to be the last person to have seen a person reported as a missing person, and it strikes me as only natural that police would wish to speak with him.

Even when a police officer was endeavouring to discover the author of a crime, r1 of the Judges' Rules, Practice Note [1964] 1 All ER 237, in force in 1992 (and which were required to be observed by police by virtue of Tasmania Police Standing Orders and Reference Manuals, O408.6), provided that there was no objection to a police officer putting questions to persons, whether suspected or not, from whom it was thought that useful information could be obtained.

It was only when a police officer had made up his or her mind to charge a person with a crime that r2 of the Judges' Rules required that the police officer should caution the person before asking any questions or any further questions, as the case may be. In my view, taking into account all of its contents, there is no question of that situation evenly remotely existing in this case, before, during or immediately after the interview resulting in the 14 August statement.

Nor, in my judgment, does anything turn on the fact that Constables Sutton and Barber had come into possession of information about the relationship between the accused and Mr Jarvis that was not included in Ms Marshall's statement, or in Inspector Bennett's briefing to them as members of the taskforce. Obviously the investigation into Mr Jarvis' disappearance was not static between about 11 August 1992 and 14 August 1992, and Constable Sutton and Barbers' possession of that information does not, in my view, alter the nature of their interview of the accused or the accused's status as a participant in that interview on that later date.

There can be no sensible suggestion in my view that at that stage Constables Sutton and Barber regarded the accused as a suspect in a murder investigation, or that they had formed a belief that there was sufficient evidence to establish that the accused had committed such a crime, much less had made up their minds to charge him.

As to the large portion of the statement taken up with documenting the accused's movements post 31 July 1992, I accept the evidence of Constable Sutton that he thought it was possible that the accused and Mr Jarvis had some on-going drug deal, and that the accused may have known where Mr Jarvis was, even though the accused had said that he had not seen Mr Jarvis since 31 July. Moreover, I accept Constable Barber's evidence that he did not know at the time where the investigation might go, and that enquiring as to the accused's movements beyond 31 July was part of him doing a thorough job of investigating.

It was further contended on behalf of the accused that the fact that after he had been interviewed and a statement taken from him, he was subjected to the procedure associated with the completion by an independent police officer of the "Register of Persons Interviewed", demonstrating that he was regarded as a suspect and not merely a witness.

The evidence of the now retired police officer who completed the register, Senior Constable Pedder, and the evidence of Inspector Bennett, satisfies me that the Register of Persons Interviewed procedure was normally reserved for persons suspected of, or charged with, the commission of a crime, or persons who were thought likely to make complaints about the conduct of police officers who interviewed them. I nonetheless accept the explanation of Constable Sutton that he had never before encountered a witness who, as the accused had done, had given a statement but declined to sign it, and that in those circumstances, after discussion with Constable Barber, he sought to utilise the procedure to obtain some form of adoption of the unsigned statement by the accused.

I am satisfied that there was no deliberate breach of O408.21(n)(3)(c) of Tasmania Police Standing Orders and Reference Manuals involved in the officers not recording on the statement the reasons the accused gave for not signing the statement. The course they adopted of invoking the Register of Persons Interviewed procedure was not inappropriate.

There was not, to my mind, any impropriety or unfairness associated with that course, and it is not something from which it is possible to infer that Constables Sutton and Barber regarded the accused as suspected of or likely to be charged with the murder of Mr Jarvis. As already noted, there was no suggestion at that stage that Mr Jarvis was thought to be dead, much less murdered.

Nor, in my judgment, is there any significance in terms of the accused's interview on 14 August 1992 that Constable Sutton had on 12 August 1992 visited the property of a Mr Cashion at Lachlan in company with customs officers with drug detection dogs. Constable Sutton had learned from somewhere that it had been claimed that Mr Jarvis had a stash of drugs at that property, and that there had been a report of a very recent burglary there, with nothing having gone missing but with a hole having been dug in the dirt floor of a woodshed. In my view, neither Constable Sutton's state of knowledge concerning that visit nor the use of drug detector dogs changed the status of the taskforce's inquiry from a missing person investigation to an investigation of a crime in which the accused was thought to be implicated.

Accordingly, I find no impropriety in the interview of the accused by Constables Sutton and Barber on 14 August 1992 such as would render the evidence of the conversation between them improperly obtained. I find that the circumstances in which the accused's statement was given, including the nature of the questions that were obviously put to him by the police officers to elicit his statement, and the manner in which the evidence discloses they were put, were such as to make it unlikely that the truth of any admissions made by the accused were adversely affected.

I am further satisfied that the circumstances of the interview and the taking down of the written statement were such that it would not now be unfair or unfairly prejudicial to the accused to admit evidence of such admissions as are contained in the statement. I have already observed that as at 14 August 1992 there could be no suggestion on the evidence on the voir dire that Constables Sutton and Barber regarded the accused as a suspect in a murder investigation, or that they had formed a belief that there was sufficient evidence to establish that the accused had committed such a crime, or that they had made up their minds to charge him.

It follows, that in my view, whichever of the provisions of the Evidence Act 2001 ("the Act"), ss85, 90, 137, 138 or 139 (or indeed, r2 of the Judges' Rules set out above), might be relied upon in support of the accused's objection to the admission into evidence of such admissions as are contained in the 14 August statement, none of them is engaged.

The Act, s85, provides as follows:

"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 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 purpose 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."

Even were I to assume that Constables Sutton and Barber were performing functions in connection with the investigation of the "possible commission of an offence", I would nonetheless be satisfied, after taking into account the matters set out in s85(3), that the preconditions to admissibility of s85(2) are met.

The Act, s90, provides as follows:

"90 Discretion to exclude admission
In a criminal proceeding, the 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."

For the reasons I have given, this section of the Act is not engaged. As noted by Howie J in R v Gilham (2008) 190 A Crim R 341 at [46], it is clear from the joint judgment of Gummow and Hayne JJ in Em v R (2007) 232 CLR 67 at [107] that s90 is to be viewed as focussing on the fairness of using the evidence at trial and not on characterising the circumstances in which the admissions were elicited as fair or unfair. I am not satisfied that any relevant unfairness arises, whatever be the answer to the as yet unsettled question of whether s90 is to be regarded merely as a "safety net" to be resorted to only after a consideration of the more particular provisions of the Act such as ss137, 138 and 139; or whether it is regarded as a stand-alone section, unaffected by the considerations upon which those more particular provisions focus. See Em v R (above) at [109]; R v GAC (2007) 178 A Crim R 408 at [77], and The Unsettled Safety Net of the Unfairness Discretion: Section 90 of the Evidence Act 1995 (NSW) in Em v The Queen, Anna Garsia (2009) Vol 30, Sydney Law Review 715.

The Act, s137, provides as follows:

"137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."

Crawford CJ observed in Neill–Fraser v Tasmania [2012] TASCCA 2 at [184]:

"184 When considering the danger of unfair prejudice, care must be taken not to confuse prejudice with unfair prejudice. Too often, defence counsel fail to distinguish between them. All evidence that may tend to convict an accused person is prejudicial, but that does not mean that it is unfairly prejudicial. What is meant by unfair prejudice is that the jury may use the evidence to make a decision on an improper, perhaps emotional basis. If there is a real risk that the evidence may be misused by the jury in some way, then it may be unfairly prejudicial. R v BD (1997) 94 A Crim R 131 at 139, [151]."

I see no such risk in the present case with regard to the contents of the 14 August statement, and I am satisfied for the reasons I have given that there is no relevant unfairness.

The Act, s138, provides as follows:

"138 Discretion to exclude evidence improperly or illegally obtained
(1) Evidence that was obtained –
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law —

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning —
(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account —
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g)whether any other proceeding, whether or not in a court, has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty, if any, of obtaining the evidence without impropriety or contravention of an Australian law."

It is unnecessary for me to embark on a consideration of the matters set out in s138(3) as I am satisfied for the reasons I have given that the evidence contained in the 14 August statement was not obtained improperly or in consequence of an impropriety (or, if attention is directed to the Act, s139, in contravention of an Australian law).

The Act, s139, provides as follows:

"139 Cautioning person
(1) For the purpose of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if —
(a)the person was under arrest for an offence at the time; and
(b)the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and
(c)before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(2) For the purpose of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to be obtained improperly if —
(a)the questioning was conducted by an investigating official who did not have the power to arrest the person; and
(b)the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person committed an offence; and
(c)the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(3)   The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.
(4)   Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.
(5)   A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if —
(a)the official believes that there is sufficient evidence to establish that the person committed an offence that is to be the subject of the questioning; or
(b)the official would not allow the person to leave if the person wished to do so; or
(c)the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.

(6) A person is not treated as being under arrest only because of subsection (5) if —
(a)the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person committed an offence against a law of the Commonwealth; or
(b)the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions."

For the reasons I have given, I am satisfied that Constables Sutton and Barber did not come under any obligation under the Judges' Rules to caution the accused and assuming, without deciding, that s139 has retrospective operation (see Rodway v R A63/1989). I hold for the same reasons that its provisions are not engaged in respect of the 14 August statement, and accordingly there is no impropriety arising under s139 for the purposes of s138(1)(a).

I turn to consider whether any admissions contained in the statement are rendered not admissible by virtue of the operation of the Act, ss85A and 86.

The Act, s85A, provides as follows:

"85A Admission in serious offence
(1) Evidence of an admission in a proceeding for a serious offence made by a defendant during official questioning is not admissible unless —
(a)there is available to the court an audio visual record of an interview with the defendant in the course of which the admission was made; or
(b)if the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in paragraph (a) could not be made, there is available to the court an audio visual record of an interview with the defendant about the making and terms of the admission or the substance of the admission in the course of which the defendant states that he or she made an admission in those terms or confirms the substance of the admission; or
(c)the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in paragraph (a) or (b) could not be made; or
(d)the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.

(2) A reasonable explanation includes but is not limited to any of the following:
(a)the admission was made when it was not practicable to make an audio visual record of it;
(b)equipment to make an audio visual record of the interview could not be obtained while it was reasonable to detain the defendant;
(c)the defendant did not consent to an audio visual record being made of the interview;
(d)the equipment used to make an audio visual record of the interview malfunctioned.

(3) This section applies only to an admission in the course of official questioning by a defendant who, at the time of making the admission was, or ought reasonably to have been, suspected by an investigating official of having committed the offence."

"Official questioning" is defined by s3(1) of the Act as "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". "Investigating official" is defined by the same section as, relevantly, "a police officer, other than a police officer who is engaged in covert investigations under the orders of a superior". There can be no doubt therefore that Constables Sutton and Barber and Senior Constable Pedder were investigating officials. However, in my judgment it cannot be said that any of them were engaged in connection with the investigation of the commission or possible commission of "an" offence, much less "the" offence referred to in s85A(3) as a necessary precondition to the operation of s85A.

On a strained view of the facts in relation to the 14 August interview, it might be said to have been in connection with the investigation of the possible commission of an offence in the sense that if the taskforce discovered that Mr Jarvis had been possibly murdered or kidnapped, the missing person investigation could then be seen as involving an investigation of those possible offences. For the reasons I have earlier expressed however, I am of the view that as at 14 August the interview of the accused was of a mere witness in a missing person inquiry and no facts were known at that stage which could alter that characterisation or lend any verisimilitude to the extreme view I have just postulated.

Were I to be wrong about that view however, I am satisfied on the balance of probabilities on the evidence of Constables Sutton, Barber and Senior Constable Pedder and former Inspector Bennett, that the circumstances leading up to and during the interview of the accused at the St Helens Police Station provide a satisfactory explanation for the purposes of s85A(1)(c) as to why an audio visual record referred to in s85A(1)(a) or (b) could not be made.

That explanation is that the accused was not a suspect or a person under arrest but rather a witness in a missing person inquiry, and that in any event, even had it been desired, I am confident in inferring that it was not practicable to make a recording of it given the evidence that at that time, in the very early days of audio visual recording of police interviews, the only facilities available to police were in Hobart, Burnie and Launceston. They were fixed recording studios in effect and required the arrangement of a dedicated camera operator to be in attendance. The police did not have portable video recording machines at that time.

All of this would have made an audio visual recording of the interview extremely impracticable, even assuming that the accused might have agreed to that course if invited or, if not, the police officers had power to compel it, which appears not to have been the case (Criminal Code, s27). It is true that the accused was not in fact invited to do so, but I do not consider that the circumstances would warrant even considering travelling to one of the three centres mentioned.

It should also be observed that the video recording of admissions was not a legal prerequisite to admissibility until the commencement of the Criminal Law (Detention and Interrogation) Act 1995 on 2 December 1996, and police guidelines stated at the time that a video interview would normally only take place when a person was suspected of an indictable offence and it was practicable to conduct such an interview.

I should add for completeness that, given my findings, I do not see the need to consider any suggestion that years later, when things are vastly different, there emerged some obligation on police to then offer the accused a video record of interview for the purpose of asking him to confirm earlier admissions or, conversely, that years later a refusal by the accused to participate in any record of interview at all, has any relevance to the circumstances of the lack of an audio visual recording of admissions said to have been made long before.

It follows from all that I have said that the evidence of any admissions contained in the 14 August statement is not, in my view, rendered inadmissible by the operation of the Act, s85A.

The Act, s86, provides:

"86      Exclusion of records of oral questioning
(1)   This section applies only in a criminal proceeding if an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official.
(2)   A document prepared by or on behalf of the investigating official is not admissible to prove the contents of the question, representation or response unless the defendant has acknowledged that the document is a true record of the question, representation or response.
(3)   The acknowledgment must be made by signing, initialling or otherwise marking the document.
(4)   In this section, a document does not include —
(a) a sound recording, or a transcript of a sound recording; or
(b)a recording of visual images and sounds, or a transcript of the sounds so recorded."

The accused declined to sign the 14 August statement. It is true that when he was taken before Senior Constable Pedder to complete the procedure associated with the Register of Persons Interviewed, the accused was asked to read the statement and, having said that he had read it, he then agreed that it was correct. However, s86 provides that the document, in this case, the written statement itself, as opposed to oral evidence of its contents, is not admissible to prove the contents of the question, representation or response concerned unless the defendant has acknowledged that the document is a true record of those questions, representations or responses. Moreover, s86 mandates that such acknowledgement must be by signing, initialling or otherwise marking the document.

Thus, the accused's statement to Senior Constable Pedder that the statement was correct cannot provide the required acknowledgment. I have also considered and rejected the possibility that the accused's signing of the Record of Persons Interviewed could provide the required adoption of the statement. It cannot. Section 85(3) is clear that the acknowledgment must be of "the document" and that is a reference back to the document referred to in s85(2), that is, the document sought to be tendered and containing the question or representation and the response said to constitute the admission.

There was a suggestion on the evidence on the voir dire that the 14 August statement bore the initials SRS on each page but the last. The evidence of Senior Constable Pedder was as follows:

"MR COATES SC (Resuming): Now once you'd completed that did you then initial the statement that you'd been given to you?……Yes, I did.
Could the witness be given VD3, please. Did – can you just tell us where your initials appear on the statement?……On all pages of the statement in blue paper I initialled it at the top on the left hand corner and with my initials, GP.
Thank you. Now there are some other initials in black on the statement that appear to be the letters SRS, did you ask Mr Standage to initial the statement – if he'd like to initial the statement?……I can't remember.
Right. So you may have done -………It's that long ago.
Yeah, you may have done and you just can't remember now?……I may have done."

Constable Sutton's evidence about this was that he was not present when either Senior Constable Pedder's initials or the other set said to appear to be SRS (although such an appearance is not obvious to my eye), were placed on the statement, and that neither set were Constable Barber's. He gave unchallenged evidence that the initials were on the document when it was returned to him after the conclusion of the procedure associated with the completion of the Register of Persons Interviewed.

Constable Barber agreed that the initials said to appear to be SRS were not his initials, that he did not initial the statement, and that he did not recall whether those initials were on the statement after he received it back from Senior Constable Pedder.

Given the inability of two of the three police officers to recall what would have been a very significant event indeed, namely the adoption by the accused of the correctness of the statement he had earlier refused to sign, I am unable to be satisfied that it is more probable than not that the initials are those of the accused or were marks made by him on the statement, notwithstanding that it is difficult to see whose initials they might be, if not the accused's, and notwithstanding Constable Sutton's evidence.

If I am wrong in declining to draw an inference that they are the accused's initials, placed on the document by him, and it is noted that he gave no evidence on the voir dire, there is to my mind another consideration in connection with this question. Even if I were satisfied that the initials were those of the accused and that he in fact placed them on the statement during the procedure associated with the Register of Persons Interviewed, it remains entirely possible, indeed I think highly likely given his earlier refusal to sign the statement itself, that the initials were made for the purpose of merely identifying the document that had been the subject of the register procedure and for the purposes only of the completion and completeness of that procedure, and not as an acknowledgment of the sort contemplated by s86(2). In that regard it is to my mind, highly significant, that the accused, even if he had been prepared to initial the earlier pages of the statement, obviously remained unprepared to sign it, or even initial it on the last page. And, of course, the reason Senior Constable Pedder signed the statement was for the very purpose of identifying it as the document referred to in the register.

In my judgment, the 14 August statement is a document that is not admissible as a document by reason of the operation of the Act, s86.

The 17 August information sheet

There was also some further conversation between Constables Sutton and Barber and the accused on 14 August 1992 that was not recorded in the accused's statement but was later set out by Constable Sutton in an information sheet and signed by him on 17 August 1992.

Constable Sutton's evidence about this on the voir dire was as follows:

"And did you ask him whether he would sign the statement?……I did.
And what did he say?……He declined.
Okay, and did you then record 'Taken by me at St Helens on the 14th August '92', and signed your name?……I did.
And did you initial each page of the statement?……Yes.
Did he then tell you that there was something in the statement not quite right?……He did.
And can you recall what he told you?……I can. I was standing at the door just about to walk out and he said, 'Look', he said, 'everything's true in that statement except for a bit on the last page'.
Sorry, could you repeat that?……He said, 'Everything in the statement is true except for a bit on the last page'.
And did he point out the bit on the last page?……I asked him, I think.
Yes, and what did he say?……He said, 'The bit about not having any business dealings going on with – with Mr Jarvis'.
And can you recall what he told you then?……I can.
And what did he tell you?……He said that Ron had offered to include him in a – in a drug deal and I recall 'cause – I can't think of the exact expression that he used, -
Well -…….I asked him what sort of – what sort of business deal, you know, and he said – and the expression was either – I think it was gold or – or black gold – Mm.……- and I didn't know what that was, so I had to ask him, and he said –
Okay. Did you – this subsequent conversation, did you then fill out what's known as a 'information sheet'?……I did.
And did you record what he said on the information sheet?……I did.
And did you – this was on a Friday when you went up?……I so, yes.
And did you do this on the Monday?……I did.
Yes, could the witness have the information sheet?……Yeah, that's the one.
And could you just read that please?……So I've put some – some details in – in up the top in the boxes and then the source and date of information it's:
Stephen Roy Standage. 14.8.92.
And then I've got 'stated', and then:
'1 That when they were drinking on the 31st of July Jarvis said that he had a deal in the pipeline relating to a large block of hash. He asked Standage if he was interested and he answered in the affirmative. Standage did not know if the deal was in the immediate future;
2 Jarvis would always brag after he had been drinking that he had connections that could organize ten pounds plus of dope. He said his connections were in the northwest;
3 Jarvis still heavily dealing in drugs;
4 Standage has been recently involved with Jarvis in drug deals.'
Then I've got in brackets
'(all above info is not included in statement made by Standage)'
And it's signed by me."

For the same reasons that I found that there was no impropriety in the interview of the accused by Constables Sutton and Barber on 14 August 1992, such as would render the evidence of the conversation between them improperly obtained and that the circumstances in which the accused's statement was given, including the nature of the questions that were obviously put to him by the police officers to elicit his statement and the manner in which the evidence discloses they were put, were such as to make it unlikely that the truth of any admissions made by the accused were adversely affected, I make the same findings in respect of the conversation recorded in the 17 August information sheet. Nor, in my opinion, does the fact that the information sheet is only a summary or paraphrase of what the accused is alleged to have said render the evidence unreliable for the purpose of the Act, s85.

I am satisfied that the circumstances of the conversation at the end of the interview and the subsequent creation of the information sheet were such that it would not now be unfair or unfairly prejudicial to the accused to admit evidence of such admissions as were made in the conversation. The fact that the accused prefaced the provision of the information with the expression that it was "off the record" does not make any ensuing admission unfairly or improperly obtained in my view, nor its use at trial as unfairly prejudicial to the accused. The acknowledgment that the conversation was "off the record", in my view, was merely one that what was said would not go into the written statement that had been taken. There is no evidence upon which I could find, or from which I could infer, that the accused was induced to believe that what he said could not be used against him at all.

Indeed, it should be noted that in one sense it would be unfair to admit oral evidence of the 14 August statement without the evidence of the accused's correction of his untruth about not having had business dealings with Mr Jarvis. If a jury did not have the evidence of that almost immediate retraction of that untruth, it is conceivable that it could conclude from some other evidence that it was a lie made out of a consciousness of guilt, or at least a lie affecting the accused's credibility.

I have already observed that, as at 14 August 1992, there could be no suggestion on the evidence on the voir dire that Constables Sutton and Barber regarded the accused as a suspect in a murder investigation, or that they had formed a belief that there was sufficient evidence to establish that the accused had committed such a crime, or that they had made up their minds to charge him. Nothing altered, in my view, upon the accused's disclosure that part of his statement was untrue. The police officers were not investigating any drug offences the accused may have planned to commit with Mr Jarvis. They came under no obligation to caution him, and again, assuming retrospectivity in its operation, there is no impropriety arising under s139 of the Act for the purposes of s138(1)(a).

It follows again, that in my view, whichever of the provisions of the Act, ss85, 90, 137, 138 or 139 (or indeed, r2 of the Judges' Rules set out above), might be relied upon in support of the accused's objection to the admission into evidence of such admissions as are contained in the 17 August information sheet, none of them is engaged.

Equally, it again follows in my view for the reasons I have given, that the circumstances leading up to and during the interview of the accused at the St Helens Police Station provide a satisfactory explanation for the purposes of s85A(1)(c) as to why an audio visual record referred to in s85A(1)(a) or (b) could not be made of, or by way of adoption of, such admissions as are made in the information sheet had it been desired to do so.

On the subject of s85A, with respect to the conversation the subject of the information sheet, an additional consideration for the purposes of s85A(2)(c) of the Act might be that, given the accused's proffering of the information "off the record", he did not (or would not) consent to an audio visual record being made of the conversation.

And finally as to the 17 August information sheet, it goes without saying that it is a document that is not itself admissible (as opposed to oral evidence of its contents), by reason of the operation of the Act, s86, given that it was never suggested that the accused ever saw the document, let alone acknowledged it as a true record of the conversation. This is quite properly conceded by counsel for the State.

The 7 April 1993 conversation and the 8 April information sheet

On 7 April 1993, Detectives Lopes and Stanwix were conducting inquiries into the death of Mr Jarvis, whose remains had been discovered in bushland at Nugent on 11 February 1993. By this time the accused was regarded by these detectives as one of two or three suspects in Mr Jarvis' murder, but I accept that neither believed on 7 April 1993 that they had enough evidence to form a view that he had committed the murder or to charge him and take him into custody.

Detectives Lopes and Stanwix wished to speak to the accused about his knowledge in relation to Mr Jarvis' disappearance, and in particular about some inconsistencies said to be in his previous statement in relation to the distance he had travelled in a car he had hired on about 3 August 1992 (which distance had been checked by Detectives Wagner and Holloway on 24 February 1993), about a positive Luminol test result for a blood product said to have been found on the dashboard and around the front seat of that hire car, and also about some phone calls the accused had apparently made in the early days of August.

Detectives Lopes and Stanwix had planned to travel to St Helens on 7 April 1993 to endeavour to speak to the accused, who they had been unable to locate at his Lindisfarne address in the days previous. On the off chance, they called at that address before heading to St Helens and they found the accused at home.

They asked him if he would come to the Bellerive Police Station to speak to them about the matters they wished to discuss but he declined. Instead he said he was going back up the east coast that day to visit his mother at Coles Bay, and he suggested that they could meet at the Bicheno Police Station some time after 12 o'clock.

The accused arrived at the Bicheno Police Station at about 1.45pm, and from the outset made it clear that he was not going to participate in any form of recorded conversation. He would not allow a pen to be produced and insisted on examining Detective Stanwix's briefcase to ensure that it did not contain a hidden tape recorder. He even asked to physically search the person of the two detectives but they refused.

What followed was a discussion in the one-roomed police station, during which the accused answered questions on the matters the detectives wished to speak to him about, although occasionally saying that he did not wish to speak further, and getting up to walk out. On those occasions the detectives changed the subject and moved tangentially to topics such as the accused's landscaping business until he calmed down and was again willing to engage with them on the subject of their inquiries.

As soon as the conversation with the accused had ended, Detectives Lopes and Stanwix drove to Pyengana, and while Detective Stanwix drove, Detective Lopes wrote out notes of the conversation just had with the accused.

Those notes apparently no longer exist, but upon the detectives returning to the Bellerive Police Station the next day the two of them sat down together with Detective Stanwix typing up and signing an information sheet created from the contents of the notes. That information sheet contains some 10 recorded statements or denials said to have been made by the accused.

In short, the denials were:

·     that the accused owed Mr Jarvis any money;
·     that he had any knowledge of blood in the hire car;
·     that he had travelled anywhere else in the hire car than as earlier stated by him to police, or
·     that he killed Mr Jarvis.

In short, the statements were:

·     that the accused had hired the car for no particular reason other than that he had a win on the TAB;
·     that he used hire cars for drug dealings, that he was a heavy gambler and thus his memory of spending large amounts was poor;
·     that the phone calls in early August would have been to his mother;
·     that he did not see Mr Jarvis after he drove off from the Clarence Hotel on 31 July, and
·     that Debbie Marshall was off her head, was not to be trusted and was telling lies to police.

In addition to the information recorded in the information sheet Detective Stanwix typed at the foot of the document the words "CONFIDENTIAL INFORMATION WITHELD FROM THE REPORT AT THIS STAGE".

This was a reference to information said to be imparted to Detectives Lopes and Stanwix by the accused that he was an associate of Mr Jarvis, and that Mr Jarvis had asked to buy six pounds of cannabis head, of which the accused had delivered one pound to Mr Jarvis at the Clarence Hotel on Friday, 31 July 1992, as a sample for $3,000, and Mr Jarvis was to telephone on the following Sunday if he wanted the further five pounds. The accused allegedly told the detectives that he watched Mr Jarvis drive off and did not see or hear from him again.

This information was said by Detectives Lopes and Stanwix to have been withheld from the information sheet because they did not want drug squad police to see it and to search the accused's property at a time when he was providing them with information in a murder inquiry. I accept their evidence as to the provision of that information by the accused and their reason for withholding it from the information sheet.

The information sheet of course is not admissible as a document in view of the Act, s86.

Returning however, to the 7 April conversation, there is no doubt in my mind that Detectives Lopes and Stanwix were endeavouring to pin the accused down on matters that may have implicated him in the murder of Mr Jarvis and, that information he might have given them could have resulted in a recommendation that the accused be charged, if not arrested, then and there. In order to obtain the information they wanted they were prepared to comply with the accused's refusal to permit the discussion to be recorded, and were prepared to humour the accused and keep him talking long enough to answer all their questions or to provide information that might incriminate him.

I nonetheless find no impropriety in the detectives' conduct of the interview that would enliven the Act, s138, nor do I find anything in the circumstances of the interview that would, for the purposes of the Act, s85, affect the truth of any admissions made by the accused during the course of it.

Nor do I consider that the detectives were under any obligation to endeavour to obtain an audio visual recording of the conversation. The accused's refusal to be recorded, even in writing, and the fact that there were no recording facilities at Bicheno, but only at Launceston, Hobart and Burnie, in any event provide a reasonable explanation for not doing so for the purposes of the Act, s85A.

As to whether the accused should have been cautioned, I find that as at 7 April 1993 the provisions of r2 of the Judges' Rules were still not engaged, nor did circumstances exist that would now enliven the provisions of the Act, s139.

I accept that Detective Stanwix gave evidence that while the Judges' Rules were concerned with whether there was sufficient evidence to charge a person, the practice at the time was to caution a lot earlier than that if a person was starting to make admissions that might lead to him or her being charged. Even so, the information being provided by the accused did not, in my view, fall into that category at the time.

As will be seen shortly to assume importance with respect to my ruling on the 7 April conversation, the denials made by the accused are only likely to assume importance if other evidence on the trial shows them to be false and the information about the accused's drug transaction with Mr Jarvis on 31 July 1992 assumes its real significance either if proven to be a lie or because of its relevance as tendency or coincidence evidence cross-admissible on count 2, the charge of murdering Mr Thorn. At the time the information was provided to Detectives Lopes and Stanwix however, it did not indicate a need for a caution.

I am nonetheless satisfied that, whether the Act, s90, is regarded as merely a "safety net" remaining only for consideration after first considering the more particular provisions of s137 or as a "stand-alone" section, there is now relevant unfairness in the 7 April 1993 conversation sufficient to warrant the exclusion of evidence of its contents under either or both sections.

The unfair prejudice of, or the unfairness in the use of, the evidence of the contents of any admissions made by the accused during the 7 April 1993 conversation arises, not because Detectives Lopes and Stanwix behaved with any impropriety, or because they should have cautioned the accused at the time, but rather because, in my view, they would have or should have cautioned him if they were at the time able to foresee what would become the very significant probative value of what they were being told.

Detective Lopes conceded in cross-examination that he was only one step away from charging the accused, and if the accused had made an admission, or had said anything that incriminated him, or if he "had started saying things that you could put together in a link that would incriminate him", he would have cautioned him.

Detective Stanwix's evidence, already alluded to above, was as follows:

"If he said anything that was incriminating and might be used against him would you have cautioned him?......Yes, if it was something in relation to – that took me to the next level in my belief, for sure.
So your understanding at the time of conducting the interview was that it was appropriate to caution people if they started saying things that were incriminating and might be used against them?......I think if you look at the judge's rules of the day it was about whether they had sufficient evidence to charge them but I can tell you that it was given a lot earlier than that, it was given to people who were starting to make admissions where you would end up charging them so, yes. If he had started something – yes, then I would have cautioned him and it would be easy for me to start cautioning him but I just didn't on this occasion."

Had Detectives Lopes and Stanwix known as at 7 April 1993 that the denials made by the accused during their conversation were to become of significant probative value, either because other evidence could possibly show them to be lies evidencing a consciousness of guilt, or because the information about the accused's drug transaction with Mr Jarvis on 31 July 1992 had significant probative value either if proven to be a lie or alternatively, as tendency or coincidence evidence cross-admissible on another charge of murder, they would have cautioned the accused.

I am of the opinion that the 7 April 1993 interview, although properly conducted at the time, has, on the summary of agreed evidence annexed to these reasons, when taken together with the decision of Evans J in Tasmania v Standage [2012] TASSC 88 (which canvasses the significant probative value of available tendency and coincidence evidence and the cross-admissibility of such evidence between the two counts on the indictment), now assumed an importance that was never then foreseen, or capable of being understood, by Detectives Lopes and Stanwix. Had it been foreseen it would have or should have, attracted a caution that in all likelihood may have resulted in nothing further being said by the accused at all.

In the circumstances, I am of the view that the evidence should not now be admitted. The evidence of any admissions made during the 7 April 1993 conversation should be excluded because it is unfairly prejudicial in the sense envisaged by the Act, s137, to the extent that its significant probative value is outweighed by a danger of unfair prejudice, notwithstanding any jury directions that might be given at trial. Assuming that any directions given to the jury will be followed, I am nonetheless of the view that the risk that the jury would give the evidence more weight than it deserves is very high given the unusual nature of the case.

Were I to be in error in applying s137, I am also of the view that the evidence ought not to be admitted because for the purposes of s90, however that section is to be construed, the evidence of any admissions made would be unfair in its use at trial having regard to the circumstances in which such admissions were made. That is to say, made in circumstances where the significance of what was said was not apparent to police and only emerged over time, so that no point in time for a caution, triggering the application of the Judges' Rules, ever materialised (and thus now s139 of the Act is not engaged for the purposes of s138).

The 15 and 17 December 1998 conversations

On 15 December 1998, Detective Sergeant Bruce Henderson was on duty at the Bellerive Police Station when he received a phone call from the accused.

Detective Henderson had been tasked during 1997 to review the investigation into the murder of Mr Jarvis. This was not long after the airing of a television program dubbed Australia's Most Wanted that had focussed on the unsolved murder of Mr Jarvis.

By 15 December 1998, Detective Henderson was back on normal investigative duties and at the time he took the phone call from the accused he regarded him as a person the police wanted to speak to but at that stage said that he was of the mind that there was insufficient evidence to put the accused in the category of a suspect for the murder of Mr Jarvis.

The accused came to speak to Detective Henderson because he rang the police telephone switchboard and asked to speak to the officer dealing with the Jarvis case. He told Detective Henderson that he was ringing to seek the return of some bolt cutters that were seized from him some five years earlier by police investigating the Jarvis case.

Detective Henderson, had during the course of his earlier review of the case, become aware that the bolt cutters could not be located but he nonetheless said to the accused that they might need to be retained as evidence. The accused said that he would ring back on the following Friday. Detective Henderson said in evidence on the voir dire that this was because he wasn't sure what to do about the situation with the missing bolt cutters and he wanted to speak to his inspector. I accept that evidence.

After being told that the bolt cutters might be needed as evidence the accused is said to have told Detective Henderson, "If you haven't managed to stitch me up after five years there's not much hope of that now".

There is nothing about the circumstances in which that alleged admission was made that was improper or called for a caution, and, in my view, there is nothing in the Act or arising from the Judges' Rules that could provide any basis for its exclusion from evidence at the accused's trial.

After the 15 December telephone conversation, Detective Henderson spoke with Inspector Lathey about the possibility of purchasing a new set of bolt cutters for the accused if they could not be found, but nothing was settled when the accused called Detective Henderson back a day earlier than arranged, namely Thursday, 17 December.

When Detective Henderson told the accused that no decision had been made about the bolt cutters and to call back on Friday at 11am, the accused unexpectedly came out with claims of the police having been involved in the murder of Mr Jarvis.

Detective Henderson's evidence about this is as follows:

"And what did he say?……Well he said that the police had been involved in the death of Mr Jarvis, in particular that two officers from the Drug Squad were responsible for his death.   He said that Lopes and Stan, who I knew to be a reference to two other officers involved.
You knew – you knew a police officer by the name of Lopes?……Mark Lopes and Adam Stanwix.
And you knew by your work on the case that they'd been involved in an interview with Mr Standage?……Yes.
Okay, so what did he claim about -…….He said that they had perjured their evidence at the inquest by claiming that on the day of Jarvis' disappearance Standage had paid him three thousand dollars and a pound of dope.
Thank you.   And had you asked him any questions at this stage about the -……..No.
- investigation in relation to the death of Mr Jarvis?……No, I was eager for the conversation to end because I didn't really have an answer for his enquiry.
And did you ask him something?……Yes.
And what did you ask him?……I asked him if he would come and see me.
And what did he respond?……He said that he didn't trust police to conduct an impartial investigation and that he wasn't going to participate in any further interviews with police.
And – and did he say anything about you?……He said that since we'd last spoken he'd made some inquiries about me that he hadn't been told anything adverse about me but that as I was a detective sergeant he wasn't inclined to trust me because you don't get to be a detective sergeant unless you're prepared to perjure yourself.
All right.    So you'd asked him would he come and speak to you and he said 'No'.   Did you ask him would he come and speak to anybody else?……Yes, I asked him if he wasn't prepared to speak to the police whether he'd make himself available to speak to the DPP.
And what did he say in relation to that response?……Well he considered them in the same light as the police and wasn't prepared to talk to them either.

And did he then start – say anything more about the police?……Well I suppose in justification to his claims he – he then went on to give examples of his reasoning and they were that the – Australia's Most Wanted program had been fabricated; he claimed that the fabrication in respect to that was that it was claimed that Jarvis had last been seen at the Clarence Hotel at 3pm, yet Standage's version was that he had left Jarvis on the footpath there at 4:30 and that somehow this one and a half hour difference was to support the fabrication that Standage had had sufficient time to take Jarvis to Nugent to kill him.
And did he say – and the go on to say about inquiries – anything about inquiries?……Yes, he said that no inquiries had been made with other patrons at the hotel that – that day. He considered this to be suspicious because it was known that Jarvis had met with the police officer that night, that night being the – the night time of his disappearance.
And did you then say something to Mr Standage?……I asked him how did he know it.
And what did he – did he then – how did he respond?……He said that he – it was common knowledge that Jarvis was in with the police that there was an arrangement whereby Jarvis had access to marijuana that had been confiscated by the police that he was either given or sold.
And did he say that Jarvis bragged about that?……Yes.
And did he then continue on to say something about taping the conversations?……Well he said that he had taped conversations between Lopes and Stanwix, or he referred to them as 'Lopes and Stan', in which various aspects of the investigation were discussed yet that material hadn't been presented to the inquest. He also claimed that he told other investigators about police being involved in Jarvis' death but nothing had been done about that.
And did he say anything about Jarvis owing money to police?……He said that was the reason he was killed that he owed a lot of money to two officers within the drug squad and that was the reason he was killed and also to silence him in respect to the arrangements that existed in relation to the confiscated cannabis.
And did you then ask him something?……I did, I asked him –
And what did you ask him?……- I asked him if he had any proof of this, and he told me that he'd taped all conversations with police.
And did you ask about whether he was recording your conversation?......I asked him if he was recording our conversation and he said he was.
I told him that it was an offence to record conversations without the knowledge of the other people and that was fairly much the end of the conversation."

Detective Henderson then, wrote notes of the conversation with the accused into the computer "running sheet" he had kept since his earlier investigation of the murder of Mr Jarvis.

Detective Henderson was cross-examined as to why he had not stopped and cautioned the accused when the tenor of the police file on the murder of Mr Jarvis was that the accused was the prime suspect. He said that if the accused had said something incriminating he would have cautioned him but that what the accused was coming out with was "a barrage of improper conduct by police", and that he did not at any point consider cautioning him.

Detective Henderson said, in answer to the question "why", that was then put to him in cross- examination:

"Well, I wasn't conducting an interview with him, I wasn't questioning him, he was giving information about other people being involved in Jarvis' death and not making admissions of being that person himself."

That is perfectly correct in my view. There was no need for Detective Henderson to caution the accused either under the Judges' Rules, or by virtue of police practice at the time, nor is the Act, s139, now engaged, particularly given that the accused was not under arrest nor "in the company of" Detective Henderson "for the purpose of being questioned", which are preconditions to the operation of s139.

Unlike the circumstances of the 7 April 1993 conversation between the accused and Detectives Lopes and Stanwix, Detective Henderson was not asking questions or making representations to the accused such as are, in my opinion, contemplated by s86, and that section is not engaged, absent those preconditions to its operation which are set out in s86(1). Rather he was listening to an unsolicited account of other people being involved in the murder of Mr Jarvis and not to obvious admissions by the accused of his own involvement.

Nor was it reasonable to have expected Detective Henderson to have suspected that what he was being told by the accused was on their face provable lies and therefore potentially incriminating as demonstrating a consciousness of guilt.

There was no impropriety, in my view, in the circumstances of Detective Henderson's conversation with the accused for the purpose of the Act, ss85 or 138, and the evidence of its contents gives rise to no unfairness in its use for the purposes of s90 and/or no danger of unfair prejudice within the meaning of s137.

I do however accept the submission of counsel for the accused that from the point in the evidence of Detective Henderson where he asked the accused "how did he know it", to the end of the conversation set out in par[102] above, s85A is engaged in respect of any admission made as the question amounts to the commencement of "official questioning" and the accused "ought reasonably to have been suspected" by Detective Henderson as having committed the murder of Mr Jarvis, notwithstanding the detective's subjective view to the contrary as claimed in his evidence.

Given that the conversation was during a telephone call initiated by the accused, there could sensibly be no audio visual recording of any admission made in that latter part of the conversation, but there could have been such a recording of a confirmation of what was said, and there being none sought or made, and no reasonable explanation as to why there was not, it follows that any such admission is rendered inadmissible by the operation of s85A(1) of the Act.

I do not find there to be any "exceptional circumstances" within the meaning of s85A(1)(d) which would justify the admission of the evidence "in the interests of justice". I do not regard anything said in that particular part of the conversation as so highly probative or important as to warrant the admission of that evidence on that basis. I do not believe that the application of s85A(1) in these circumstances is merely "by way of a legal technicality" (cf Tasmania v Cadman (2011) 208 A Crim R 541 at [32]).

The scenario evidence

There is one further aspect of the evidence proposed to be adduced by the State upon which I am asked to rule. It involves so-called "scenario evidence" taken on a second voir dire following that involving the evidence with which I have dealt already in these reasons. It is the only aspect of the evidence with which I am concerned that is challenged solely on the basis of the Act, s137.

On 27 April 2010, a memorandum of understanding was entered into between Tasmania Police and Victoria Police for the staging of a joint undercover operation conducted by Victorian police officers sworn-in as Tasmanian special constables. The objective of the operation was to gain the accused's trust and to endeavour to induce him to volunteer confessions to the two counts of murder with which he is charged.

In order to achieve that objective a number of planned scenarios were conducted between 6 May and 2 September 2010. Each scenario involved the deployment of police undercover operatives enlisting the accused's voluntary participation in simulated criminal activity. The accused was paid small sums of money for his involvement and was led to believe the possibility existed for him to earn far greater amounts in the future from the commission of major crime.

No illegal activity was in fact involved. For example it was arranged for the accused to be involved in a simulated drug transaction in Launceston involving two kilograms of ecstasy tablets, where the tablets were harmless legal substances and where the other persons involved in the sale and purchase were police undercover operatives. Another example was an arrangement for the accused to be involved, in Melbourne, with the placing of an order for illegal guns which were in fact authorised firearms.

In all, some 12 scenarios were staged with a view to having the accused believe that he was being considered for recruitment into an organised criminal gang.

On 2 September 2010 the operation culminated in the accused being "interviewed" in a hotel room in Melbourne by the purported crime boss who told the accused that Tasmania Police were close to arresting him for the two murders but he could "fix" things if the accused made full disclosure to him so that he, the boss, could know all the evidence that existed and "deal with it". If he did as he was asked the accused was told that the way would then be clear for him to join the gang.

Audio and visual recordings were made during the undercover operation and they disclose numerous statements made by the accused to the undercover operatives which a jury could accept were admissions in respect of facts relevant to the State's case against him, if not indeed, amounting either expressly or impliedly, by words or conduct, to confessions to one or both of the murders with which the accused is charged.

Counsel for the accused has objected to the admission of the relevant material on the basis that its probative value is outweighed by the danger of unfair prejudice to the accused within the meaning of the Act, s137, and that therefore it must be excluded. Accordingly I took the evidence on a voir dire, with over four hours of recordings being played to me. The proofs of evidence of the relevant police witnesses were tendered by consent.

I was also referred by consent to the contents of volume 19 of the Crown papers which contains notices of the State's intention to adduce tendency and coincidence and hearsay evidence, and a notice pursuant to the Act, s38, in respect of certain witnesses. This material was considered by Evans J in Tasmania v Standage (above) and forms the basis of his Honour's narrative and summary of the State's case against the accused on each of the two counts.

It is appropriate for me to take this material into account in this way as it is important in assessing the danger of unfair prejudice to assess it in the context of and by reference to other available evidence. If the impugned evidence does not add significantly to the other available evidence it may more readily be said to be outweighed by the asserted danger of unfair prejudice: Australian Law Reform Commission Report 102 "Uniform Evidence Law" at par16.15; Aytugrul v R (2012) 247 CLR 170 185 – 186; (2012) 86 ALJR 474 at 482 - 483, [26] - [30].

Evidence of the nature, and gathered in the manner of the scenario evidence with which I am now concerned, withstood challenge in four appeals heard together by the High Court and reported in Tofilau v R (2007) 231 CLR 396.

The challenges to the scenario evidence in each of those appeals were based in all cases on basal voluntariness, public policy and unreliability and in one only, on the basis that the trial judge's discretion to exclude the evidence as unfair should have been exercised in favour of the particular appellant.

The principles to be derived from Tofilau v R seem to me to clearly apply to all admissions not just admissions that are, or for practical purposes amount to, confessions: Tofilau v R at 401, [2] per Gleeson CJ.

I am however, concerned in the present case with an objection based solely on s137 of the Act, which has been held by this Court not to involve a discretion but rather, an evaluation process involving "a matter of judgment": L v Tasmania (2006) 15 Tas R 381 per Underwood CJ at 401, [51] - [52], with whom Tennent J agreed.

As to probative value, I bear in mind that in carrying out the required balancing exercise, the assessment of probative value is one, in effect, of the potential of the evidence to further the State's case against the accused. The assessment is predicated on an assumption that the evidence is accepted by the jury, without any inquiry on my part as to whether the jury would or would not be likely to accept it, or whether the jury would give it any, and if so what, particular weight. That is the position in this State and also in New South Wales: KMJ v Tasmania [2011] TASCCA 7; R v XY [2013] NSWCCA 121.

As to the danger of unfair prejudice, Blow J (as he then was) in W v R (2006) 16 Tas R 1 at 43, referred to as "very useful" the following exposition in Report No 26, Evidence (Interim), Australian Law Reform Commission, Vol 1, at par[644]:

"By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required."

In Neill–Fraser v Tasmania [2012] TASCCA 2, Crawford CJ said at [184]:

"184 When considering the danger of unfair prejudice, care must be taken not to confuse prejudice with unfair prejudice. Too often, defence counsel fail to distinguish between them. All evidence that may tend to convict an accused person is prejudicial, but that does not mean that it is unfairly prejudicial. What is meant by unfair prejudice is that the jury may use the evidence to make a decision on an improper, perhaps emotional basis. If there is a real risk that the evidence may be misused by the jury in some way, then it may be unfairly prejudicial: R v BD (1997) 94 A Crim R 131 at 139, [151]."

When assessing the danger of unfair prejudice, the effect of appropriate directions by the trial judge to the jury must also be taken into account. It should be assumed that a jury will follow directions from the trial judge. So much is clear from the observations of Hayne J in Gilbert v R (2000) 201 CLR 414 at [31]. There his Honour said:

"The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public — could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials."

However as was observed, albeit in another context, by Neasey J in Leaman v R [1987] TASSC 21 at [17]; A9/1987:

"A basic question faced by a trial judge considering whether to order a separate trial, or an appellate court considering whether a miscarriage of justice has occurred because he did not, always is whether the prejudicial effect of the inadmissible evidence is (or was) capable of being adequately neutralised by appropriate instructions to the jury. That question will usually involve two further issues, namely:
(1) will an average jury be reasonably capable, as an intellectual exercise, of performing the task thus given them?
and
(2) is the prejudice likely to be so great in the circumstances that it would not be reasonable to expect the jury to leave the prejudicial evidence out of account against a particular accused even though it is inadmissible against him?"

With these considerations in mind I turn to the challenged evidence. Counsel for the accused asks me to approach this task in an "holistic" manner and I accept that, given the amount of material involved in the scenario evidence recordings, it is appropriate to assess it for the purpose of s137 of the Act at a relatively high level of generality.

On the basis of the material contained in the recordings there are a number of things, at the very least that a jury acting reasonably could conclude.

The jury could accept that the admissions by the accused in respect of growing and wholesaling cannabis, and in respect of his prior ownership or possession of a .45 calibre revolver, is circumstantial evidence from which it could be inferred that the accused had the means and motive to have fatally shot Mr Jarvis.

The jury could accept that the admissions by the accused in respect of growing and wholesaling cannabis, and in respect of prior or possible present ownership or possession of a .22 calibre rifle is circumstantial evidence from which it could be inferred that the accused had the means and motive to have fatally shot Mr Thorn.

The jury could conclude from admissions made by the accused that there was potentially one piece of evidence about which he was prepared in time, "in a swimming pool" to tell the purported crime boss about, so it could be "fixed", that the accused murdered Mr Thorn.

The jury could conclude from the nature and content and tone and context of the conversations with the purported crime boss and other undercover operatives that he would in time, "in a swimming pool", be willing to tell the "boss" anything he wanted to know about the potential evidence linking the accused to Mr Thorn's murder, that the accused was accepting that he had committed the murder but was simply not ready at the time of those conversations to formally admit to having done so.

The jury could conclude from the nature and content and tone and context of the conversations with the purported crime boss and other undercover operatives that the accused accepted that he had murdered Mr Jarvis.

That is by no means a complete survey of all aspects of the scenario evidence from which the jury could conclude that the accused committed both murders but it will suffice for present purposes.

There can be no doubt, even on that limited survey and without any necessity at this stage for any detailed analysis of every admission or potential admission or confession contained in the recordings, that the challenged evidence has very high probative value.

Equally there can be no doubt that much of the evidence presents a real danger of unfair prejudice to the accused.

Again, without any detailed analysis of individual conversations or parts of conversations, overall the challenged evidence is capable of establishing that the accused has been a criminal for most of his adult life, that he has grown and trafficked in cannabis for many years and made "millions" from doing so, and that he has owned or possessed and is very familiar with various types of firearms, including those said to be the murder weapons in this case.

It is also obvious from the scenario evidence that the accused was willing to participate in and/or countenance serious organised crime including illegal prostitution, money laundering, illegal firearms, police corruption, trafficking in ecstasy and hashish, illicit diamond sales and armoured truck robbery.

The prejudicial effect of that evidence is such that is very likely that, unless it can be "adequately neutralised by appropriate instructions to the jury", the jury could use the evidence to make a decision on an improper or emotional basis.

If there is a real risk that, even properly instructed as to the use of evidence, admitted only as evidence of the background to and the context of the asserted admissions and/or confessions, the jury might nonetheless misuse it in some way; then the danger of unfair prejudice could well outweigh the probative value of the asserted admissions and confessions, and compel the exclusion of the scenario evidence in its entirety.

From the material available to me it appears that there will be other evidence on the accused's trial that will show an involvement with cannabis and firearms and drug related criminal activity, and were those the only categories of evidence contained in the scenario evidence, the impugned evidence would not add significantly to the other available material and may more readily be said to be outweighed by the asserted danger of unfair prejudice.

There is, of course, more to the scenario evidence than those categories of circumstantial evidence. There is the direct evidence in the nature of confessions or admissions from which the jury could conclude that the accused committed one or possibly both of the murders with which he is charged. There is no similar evidence to be adduced on the trial outside of the scenario evidence.

Counsel for the accused argues however, that even the high probative value of that evidence is outweighed by the risk of unfair prejudice. The prejudice, she submits arises in two ways.

First, counsel contends that the jury would see and hear the scenario evidence recordings in which, particularly in the audio visual recordings, undercover police officers, in order to induce the accused to confess all to the "boss", make repeated lengthy statements to the accused which contain suggestions of his guilt and repeat on numerous occasions how strong the evidence against him is. Counsel submits that the danger is that the jury will inevitably misuse those suggestions as being cogent evidence of guilt in their own right and will treat those statements as containing opinion evidence of experienced police officers as to the accused's guilt.

Second, counsel for the accused contends that the scenario evidence contains evidence of blatant bad character in demonstrating the accused's preparedness to participate in crime including, as already noted, illegal prostitution, money laundering, illegal firearms, police corruption, trafficking in ecstasy and hashish, illicit diamond sales and armoured truck robbery.

The prejudicial effect of this, counsel contends, will be compounded if, as indicated by counsel for the State, the confessional material in the scenario evidence will be put to the jury as relating to both murders, whereas in the main the specific words of the relevant conversations concern only the details of the murder of Mr Thorn.

Counsel's submission continues that the directions that will have to be given to the jury, that evidence of such propensity cannot be used as evidence of guilt and can only be used for the very limited purpose for which it is adduced, namely to show the background to and context of any admissions and confessions elicited during the staged scenarios, will appear to the jury to be contradicted by the direction that will also need to be given, that other propensity evidence adduced independently of the scenario evidence can be used as evidence of guilt.

Counsel is referring, of course, to the tendency and coincidence evidence which was held by Evans J in Tasmania v Standage (above) to be both admissible on the trial and cross-admissible on both counts on the indictment.

The result, she contends, will be that the complexity of the necessary directions will be such that the jury will not be reasonably capable, as an intellectual exercise, of performing the task required by such confusing directions.

I am unable to accept counsel for the accused's submissions that the risk of the prejudicial effects contended for will materialise, given proper directions, or that even if they do that they outweigh the high probative value of the evidence from which the jury could conclude that the accused, by words and/or conduct, expressly or impliedly confessed to the commission of both murders to undercover police.

The jury will be directed in accordance with the directions suggested by Callaway JA in R v Tofilau (No 2) (2006) 13 VR 28 at 32 – 33, [6] - [7], Buchanan and Vincent JJA agreeing:

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

7     There are no doubt other directions that will prove to be necessary or desirable in relation to confessions obtained in this way. The common law develops in response to experience and I do not claim to foresee what that experience may show, but it will often be appropriate to direct the jury that –
(a)   the manipulation involved in this technique of investigation has the capacity to undermine the probative value that might otherwise be given to a confession;
(b)   a person who believes that it is in his or her interests, and safe to do so, may well make an untrue statement; and
(c)   the jury should consider any explanation for the confession put forward by defence counsel or by the accused in the course of his or her evidence or record of interview."

I do not accept that the jury would be unable to follow such directions, even when instructed that other evidence of propensity in the form of tendency and coincidence evidence may in itself be used as evidence of guilt and not merely in a limited way to give context to other evidence.

In my view, the scenario evidence can be compartmentalised and the jury can be told that the evidence of bad character thrown up by it is in a completely different legal category to propensity evidence that shows in a unique way, a tendency or coincidence that may be probative of guilt.

Indeed, as counsel for the State submitted, I will have to draw such a distinction in any event between the admissible and cross-admissible tendency and coincidence evidence, and other evidence of bad character concerning the accused's drug dealings quite outside of the scenario evidence.

The jury will also be instructed that the contents of the statements put by undercover police to the accused suggesting his guilt, in order to manipulate him into confessing it, are not evidence and that only what the accused actually said or did in response to those suggestions is evidence.

The jury will also be told that the undercover police officers, in particular the "boss" were not acting as police officers at the relevant time but were acting as criminals, and that the jury is to disregard any colour given by them to the evidence said in the conversations with them to be available against the accused.

In any event, as pointed out by counsel for the State, the evidence which the undercover officers were repeatedly emphasising was quite specifically confined by them in the scenario evidence to what were described by the "boss" as "a couple of major things". They were, evidence of the accused's DNA on a nail in a branch covering Mr Thorn's body, a video of the accused in an hotel with a wallet with several hundred dollars in it which could have been Mr Thorn's wallet, and evidence of the accused's wife being seen on the day of the murder at the end of the track where Mr Thorn's body was found.

As to whether the scenario evidence is capable of amounting to a confession to both murders and not just that of Mr Thorn, the contents of the relevant conversations will have to be carefully analysed and teased apart in my summing-up to the jury. The jury will be exhorted again to consider only the accused's statements which are capable of relating to either or both of the murders, which statements are evidence, and to wholly disregard the contents of the pregnant questions or statements to which those answers respond and which are not evidence.

I am satisfied that with such directions "an average jury" would "be reasonably capable, as an intellectual exercise" of leaving the prejudicial background and context evidence of the scenarios out of account for other purposes.

That is not to say that there should not be further editing of that background and context evidence as has been offered by counsel for the State. That is a matter of forensic judgment for counsel for the accused and I say nothing further about it.

In all of the circumstances I am satisfied that the probative value of the scenario evidence is not outweighed by the danger of unfair prejudice to the accused and it will not be excluded.

Disposition

For the reasons I have given I make the following rulings.

Documentary evidence of the 14 August 1992 statement made by the accused and the 17 August 1992 information sheet are not admissible to prove their contents because of the operation of the Act, s86; but oral evidence of any admissions made by the accused during the respective conversations with Constables Sutton and Barber covered by those documents is not excluded by the operation of any provision of the Act or otherwise.

Evidence of the 7 April 1993 conversation between the accused and Detectives Lopes and Stanwix, whether oral or documentary, is inadmissible and/or excluded by virtue of the operation of the Act, ss86 and 90 and/or s137.

Evidence of the conversations between the accused and Detective Henderson on 15 and 17 December 1998, whether oral or documentary, is not rendered inadmissible or excluded by virtue of the operation of any provision of the Act or otherwise, save as to evidence of any admission contained in the conversation of 17 December following the question as to "how did he know it", which is rendered inadmissible by operation of s85A of the Act.

For the purposes of these rulings I have proceeded on the basis that each of the suggested admissions contained in the various statements made by the accused to police in the respective conversations enumerated above is indeed an admission contrary to his interests. It should be made clear however, that even with the benefit of the annexed summary of agreed evidence in addition to the evidence on the voir dire, no finding of a kind that would prevent a submission to the contrary at trial can be made.

Nor do these rulings in any way constitute findings that the accused in fact made any of the statements said to constitute admissions by him. On the evidence on the voir dire it was reasonably open to me, in the absence of any evidence to the contrary, to find that the admissions were made and I have done so pursuant to the Act, s88, purely for the purpose of determining whether evidence of such admissions would be admissible at trial.

Finally, the scenario evidence is not excluded on the basis that its probative value is outweighed by the danger of unfair prejudice to the accused.

ANNEXURE

"Agreement between the parties for the purpose of the voir dire alone
For the purpose of determining the admissibility of the admissions challenged on the voir dire, it is agreed that the Court can have regard to the following summary of the evidence if it is ruled to be relevant to the determination of the issues on the voir dire. Nothing in this document should be taken as an admission by the accused as to what will be admitted or agreed on the trial proper.
McNally & Avery
1In the 1990s the accused knew Scott McNally. In approximately 1995 the accused asked McNally for a loan of $15,000 and offered cannabis as collateral. To that end they arranged to meet on a forestry road near Nugent. McNally brought Bruce Avery to the meeting. When McNally and Avery exited McNally's vehicle the accused walked into the bush and returned holding a plastic bin. From the bin the accused produced a revolved [sic] and threatened to kill Avery and McNally if McNally did not hand over the money. McNally did so and he and Avery left.
2Avery subsequently took police to the located [sic] where this incident occurred. It was 1,420 metres from where Jarvis' body was found.
3In 1997 the accused suggested to James Zammit that they go halves in growing cannabis hydroponically at Zammit's property. In the course of their conversation the accused said to Zammit:
'Well you can't fuck me around 'cos if we do this we're gunna do it for real I'm gunna put a lot of money into getting the lights and all that, and you don't fuck me around 'cos if you do I will put a bullet through you the same as I did with Jarvis. Everybody else knows or the media had it that there was only one bullet but I'm telling ya I used two bullets'.

The Crown case on count 1
4The deceased, Ronald Jarvis, was last seen alive in Hobart on 31 July 1992. At the time he was 37 years of age.
5He resided at 27 Howrah Road, Howrah with Ian Baker whom he had known most of his life.
6Jarvis was in a relationship with Debra Marshall. Although they were not living together they would spend significant time together. Debra Marshall resided at 8 Rattle Street, New Town. Her parents lived at 32 Apsley Street, South Hobart.
7Jarvis and Baker both worked on a fishing vessel called the 'Ihalassa'. They worked out of Strahan. Prior to going on a fishing trip their normal practice would be for Baker to fly to Strahan and get the boat ready and for Jarvis to travel to Strahan by car a couple of days later.
8Jarvis and the accused both cultivated and trafficked cannabis. The following witnsses [sic] evidence is:
aElizabeth Rix (who was in a relationship with the accused between 1989 and late 1991):
'I was aware of a person by the name of Ron Jarvis I never met him However, Stephen (Standage) mentioned his name in the context of selling cannabis to him'

b Geoffrey Jarvis (Ronald Jarvis' brother):
'For most of his adult life Ron was involved with cannabis. He would tell me he was selling cannabis I would also see him on many occasions with cannabis
On three occasions in the 12 months prior to Ron going missing, I went to the East Coast with him. He told me he was going to get cannabis from a person he dealt with on the East Coast. On two of those occasions he dropped me off at the Bicheno Hotel. He told me he was meeting that person at his mother's place. When he returned he had a substantial amount of cannabis with him. He was away for approximately an hour
On another occasion when we went up the East Coast he turned onto a gravel road which was a back road from St Helens After sometime somebody turned up in a Toyota Landcruiser, an old type of model from the 70s He parked a fair way away from our car. Ron went over to the other vehicle I didn't go near the car and could not identify the person Ron returned with cannabis'

During the six weeks before Ron disappeared he told me that his mate from up the East Coast owed him between $6,000 and $8,000 and that this person was stalling him over the debt.

c Dennis Bowerman
'Between 1991 and 1993 I was the owner and manager of the St Helens Hotel/Motel which was known as the top pub and was located in St Helens It was during this time that I met Stephen Standage as a result of his regular attendance at the St Helens Hotel Motel. During this time, I also had dealings with Ronald Jarvis who also came into the St Helens Hotel Motel regularly and was an associate of Stephen Standage I had met Ronald Jarvis previously on one occasion through a mutual friend, Greg Buck I think that first meeting was around 1989 At the time I owned the Bridgewater Hotel in Hobart. That is where Greg Buck introduced me to Ronald Jarvis
I would say that I was better friends with Stephen Standage than I was with Ronald Jarvis, however, I would have considered Stephen more of an acquaintance rather than a friend. I knew Stephen fairly well having been the owner of St Helens Hotel and the Travellers Rest Hotel, where conversations with him would occur. Standage appeared to trust me as I would allow him to make bets on horse races on credit and pay me back at a later date.
I was aware at the time that both Stephen Standage and Ronald Jarvis were both involved in the cultivation of cannabis and often grew crops together, and by crops I mean plantations of cannabis I knew that these crops were around the St Helens area.
I never saw any cannabis or money exchange hands between Standage and Jarvis. I do recall one occasion during the time that I owned the St Helens Hotel Motel when Standage told me that he had to meet Jarvis in the car park of the hotel Stephen Standage left the hotel for a short time and returned with between $4,000 and $5,000 in cash He didn't tell me where he got this money from, but I assumed it was from Ronald Jarvis in exchange for cannabis Standage told me in St Helens that he owed Jarvis money. I am not sure of the amount but I think it was $15-$20,000 that he owed him He told me it was Jarvis' share of the proceeds of their cannabis sales.
Standage told me he and Jarvis were growing crops on the East Coast However, I never saw any of these crops and don't know the specific location of any of these plantations.'

9The accused knew Jarvis. For a number of years prior to Jarvis' disappearances they were seen socialising, drinking and playing pool together.
10There is evidence that a person from the East Coast known as Steve owed Jarvis about $8,000. Jarvis was becoming increasingly agitated about being paid.
11Jarvis telephoned 438642 four times in the course of the six days leading up to 29 July 1992, the last time being 28 July 1992.
12Jarvis always carried a leather wallet and he liked to have plenty of cash in it.
13Jarvis was short of money prior to 29 July 1992. He owed $1,500 to Baker. He had borrowed $200 from his mother He owed Shane Rattenbury $1,000 and on Thursday the 28^th of July they discussed its re-payment.
14Jarvis told his brother Geoffrey Jarvis, his partner Debra Marshall and his friend Greg Sward that he had a stash of cannabis at Lachlan on a property owned by Frank Cashion. He also told Ian (Inky) Baker that he had a stash of cannabis in a shed in the bush. Frank Cashion's evidence is that at the time of his disappearance he had known Jarvis for 14 years, that Jarvis would visit his property infrequently and he suspected Jarvis was growing cannabis on his property.
15At the time of Jarvis' disappearance the accused was in financial difficulties. The accused's personal relationship with his partner had broken down, and his business with her was in financial difficulties. He gambled regularly. The licensee of a hotel where the accused gambled tallied the amount of the accused's gambling turnover in one session at $32,000. Another licensee described the accused as a mad punter.
16Early on Friday, 31 July 1992, Jarvis drove Baker to the airport. Baker flew to Strahan at 7:45am. The plan was for Jarvis to drive up to Strahan the following Monday morning to join Baker on a fishing trip. Jarvis told Baker he was returning home to wait for a telephone call from a person who owed him money.
17Arrangements had been made for Debra Marshall's sister Gabrielle and her husband Gordon Leek to stay at 27 Howrah Road while Baker and Jarvis were away fishing. The Leeks were visiting from New South Wales. At approximately 11am that Friday Debra Marshall and the Leeks arrived at 27 Howrah Road. Jarvis was packing his car for the fishing trip. Jarvis, Debra Marshall and the Leeks then went to Debra Marhsall's parents [sic] residence at 32 Apsley Street, South Hobart A family reunion had been organized for the evening of the 31^st of July and Jarvis was expected to attend.
18At about 3pm that afternoon Jarvis left 32 Apsley Street, telling Debra Marshall and Gabrielle Leek that he was expecting an important telephone call to come from a person who owed him money. He told them that the call had been arranged for 4pm. He further told Debra Marshall that he would meet her father for a drink at the Globe Hotel at 5pm or 6pm He also told Gordon Leek that he would meet him, Dennis Debnam and Ronald Morgan at the Globe Hotel at 5pm.

19At 3:20pm that afternoon Jarvis had two beers at the Globe Hotel with Ronald Morgan. When Jarvis left Morgan he told Morgan he would return at 6:30pm for a family get-together. That was the last time Jarvis was seen by family or friends.
20That afternoon Diane Rattenbury received a telephone call from Jarvis. He said he was at the Clarence Hotel and would call around to see the Rattenburys that night at about 6pm to 6:30pm. He also said that he was going with somebody to get some money and he would have money for the Rattenburys. At that time Jarvis owed the Rattenburys $1,000.
21No one has heard from Ronald Jarvis since his telephone call to Diane Rattenbury He did not attend the Globe Hotel as arranged.
22Ronald Jarvis disappeared some months after the end of the bush cannabis growing season.
23On the following morning, Saturday 1 August 1992, Debra Marshall and the Leeks attended Jarvis' residence at Howrah (the Leeks decided the night before not to stay the night at Jarvis' residence). His vehicle was in the driveway. It was packed for fishing. The premises had not been disturbed. Jarvis was not there nor was his wallet.
24Debra Marshall unsuccessfully endeavoured to locate Jarvis. He did not arrive at Strahan for the fishing trip. Baker made calls to numerous people in an effort to locate Jarvis but was unable to do so.
25Debra Marshall endeavoured to establish the identity of the person named Steve who owed Jarvis $8,000. Her enquiries led her to the accused. On Friday 7 August 1992, they spoke on the telephone. The accused told her he would not talk to her about the matter on the telephone but arranged to meet her on the following Thursday. They met at her house. She asked the accused whether he had rung Jarvis at 4pm on the previous Friday. He responded, 'It's none of your business'. He later said he had met Jarvis for a drink but would not say where. She asked him if he owed Jarvis $8,000, to which he replied, 'That's between Ron and me', and further said he could not 'afford the heat to come on me'.
26At about this time the accused also visited Shane Rattenbury. The accused said to Shane Rattenbury, 'What do you know about this money that's owed to Ron.' Rattenbury replied 'Well, I'd heard that there was money owing to Ron from you' and the accused replied in a threatening way 'Well I advise you to keep your mouth shut' and 'You won't find out anything. Don't ask any questions or you'll find yourself in trouble'.
27On 10 August 1992, Jarvis' mother reported him missing to Police.
28On 14 August 1992, the accused was interviewed at St Helens by police.
29Approximately two weeks after the interview the accused saw Debra Marshall at the Prince of Wales Hotel and spoke to her. Marshall's evidence about this conversation is:
'About three weeks after my initial conversation with Standage, I went to the Prince of Wales Hotel at about 6.00 pm Standage was in the hotel I walked to the main bar. Standage came up to me at the bar and we exchanged greetings and it was suggested by either myself or Standage that if we were going to discuss Ron we ought to go into the other bar It was obvious Standage was entirely agitated, bordering on aggressive He said he had been questioned at length by Police, wanted to know had I brought the heat in on him and kept repeating he didn't like this, he couldn't afford this, he couldn't afford the heat, wanted to know why the Police were so interested in his 4WD and I'm sure he asked, "Why did they confiscate my bolt cutters? What was the connection between the bolt cutters and Lachlan?" he was insistent that I answer his questions I asked him why he was so nervous if he had nothing to hide and he said, "Some bastard's trying to frame me. I don't know where he is" Towards the end of our conversation he said that if I told him about the 4WD and the bolt cutters, he would tell me what happened to Ron, ad [sic] if he ever heard it back from someone else, he would know where it came from, so I ought to shut my fucking mouth. He told me that Ron had been murdered by a very close friend, to look at his very close friends, and he indicated that there were about five of them and that one of them had knocked him off. He was also very concerned that he couldn't trust me He also said that he had been told to tell that woman to shut her mouth or they'd shut it for me. I said that I regarded that as a threat He was basically trying to tell me that I was in way over my head. Until then no-one had suggested to me that Ron had been murdered.'

30In July/August 1992 Frank Cashion was in Europe. At 2pm on Wednesday, 5 August 1992, police responded to a call that his residence at Lachlan had been burgled. They were met by a neighbour Lawrence Mundy. The garage had been broken into, but nothing had been taken. In the woodshed, there was a freshly dug hole about 60cm wide and approximately 20cm deep at the apparent site of Jarvis' stash of cannabis. Mundy told police he checked the property every day and the burglary had to have occurred sometime between 4pm on 4 August and 11am on 5 August 1992. He also said he saw an early model lime green Nissan patrol 4WD near the property on 5 August 1992.
31After it was reported that Jarvis was missing, police again attended Frank Cashion's property at Lachlan on 12 August 1992. They were accompanied by two customs officers. Each officer had a dog trained to detect the smell of drugs The dogs were particularly good at detecting cannabis. The property was searched using one dog at a time At the hole that had been dug in the woodshed, a dog gave an extremely strong reaction to the presence of drugs. This satisfied the controllers that the drugs had been present in the hole some time prior to the search.
32On 11 February 1993, Jarvis' remains were found in bushland at Nugent.
33To access the location where the remains were found it was necessary to travel 5.8 kilometres along a dirt road call [sic] the N Road, and then 80 metres down a side track called the Old Mill Road. The remains were some nine metres along an animal track to the right of the side track between two logs. The location was isolated. Two saplings nearby had been broken off at about a height of three to four feet and when the body was found the breaks appeared old. Dead branches were observed laying on the ground between the logs where the remains were found. Jarvis' trousers were bunched up. The sleeves of his jacket and jumper were inside out. The shoes were some distance from the body. One shoe was in vegetation 1.5 metres above the ground, the other was nearby. His wallet was not located and has never been found.
34The remains included a skull. Two spent bullets were found near the skull They had been fired from a Webley .455 revolver. The remains were underneath dead branches from a nearby sapling.
35The accused's ex partner Elizabeth Rix saw the accused with a revolver that had a round chamber that held bullets and spun. The accused told Rix that it was a .45. In 2011 Rix identified a photograph of a Webley .455 revolver as similar to the one she saw.
36Avery describes the revolver that the accused used to threaten to kill him and McNally as looking old, a large style or dirty harry' [sic] style. Avery says the gun had a spinning barrel, where you would normally insert the bullets as opposed to a magazine style firearm. Avery later identified a photograph of a Webley .455 revolver as similar to the one he saw.
37Sergeant Gerard Dutton is an expert in ballistics. His evidence is that large numbers of Webley revolvers were made between 1887 and 1947, when production ceased. The Webley .455 revolver is a large style revolver. It has a cylinder that rotates with six chambers. They could be considered uncommon but not rare.
38A forensic scientist obtained parallel luminol reactions on the track before the animal track indicating the possible presence of human blood.
39Subsequently several cannabis compounds were located in the vicinity of where the remains were found. Cannabis plants were growing in one compound 166 metres from the remains.
40In the course of a number of conversations the accused had with Dennis Bowerman, he said that he borrowed money from Jarvis; that Jarvis' body was located close to the plantation that he and Jarvis were growing together; and that he was concerned he would be implicated in the murder of Jarvis. During one conversation that Bowerman had with the accused about the murder of Jarvis Standage said words to the effect of 'If things have got to be done, they get done'.
41In early 1999 the accused said to David Pope that Jarvis had been murdered over a $10,000 debt and the police could not pin it on him as he was too smart for them and they were all stupid; showed him newspaper clippings in respect of the Jarvis murder; said he could 'out maneuver [sic] anyone including the police'; and said that he kept the clippings to show how smart he was in avoiding being charged with murder.
42The hire car rental records established that the vehicle had travelled 1,025kms. A police officer travelled that route the accused stated he had travelled in the hire car and could only account for 854.8kms.
43Neither police at the drug squad at the time nor close friends and family of Jarvis know of any association between Jarvis and police. The evidence is that Jarvis disliked the police.
44Other than his involvement with the accused there is no evidence to link Jarvis with Thorn.

The Crown case on count 2
45In 2006, John Thorn resided on a property known as Lake Yalleena, near Lake Leake, not far west of Kalangadoo. He was 59 years of age and lived with his partner, Susan Fletcher. He had resided at Lake Yalleena for some eight years. He had significant assets. The area of the Lake Yalleena property was over 400 acres. It had bushland, a lake with a trout fishery, and holiday cabins.
46In 2006 the accused lived at 91 Lake View Road, near Lake Leake, with his partner, Elizabeth Lord, and his elderly mother, Maud Standage. The area of his property was 39 acres and it included both pasture and bush land. At the time of Thorn's death the accused had lived there for approximately three years. the accused was close friends with Thorn. They would see each other on a daily basis, often twice a day. It was commonly known in Kalangadoo that Thorn carried a wallet with a substantial amount of money in it.
47For some months prior to Thorn's death the accused had little spare money. The accused was a heavy gambler. Thorn lent money to the accused. At times the accused repaid Thorn with cannabis.
48Thorn grew cannabis on his property and sold it to a small number of local people.
49The accused was involved in growing and selling cannabis before, at the time of, and after Thorn's death. The accused and Thorn discussed growing and selling cannabis. Thorn told Simon Peters that he was in partnership with the accused.
50The accused has said that on the day Thorn went missing, Thorn told the accused he wanted to grow more cannabis to cover some fishing fines and he found a new place to grow cannabis by a creek. Thorn wanted the accused to be involved. After Thorn's death a new compound, with fresh fertilizer on it, was found near a creek on Thorn's property in the vicinity of an area known as 'Mount Harry'
51Thorn stashed cannabis and money on his property. The accused knew of the stash and talked about it on the day Thorn's body was found.
52The accused was the last person to see and speak to Thorn.
53Thorn's body was found on the 26^th of August 2006 in bush land. Thorn had been shot and left in the bush.
54Thorn's body was down a track that came off the northern side of the main highway approximately 3.9km east of the Kalangadoo shop. Some kilometres down the track a subsidiary track (body track) came off the track. Thorn's body was in thick bush approximately twenty metres from the body track, down an animal track. There was a pool of blood on the body track and drag marks. There was little or no blood in the drag marks. Thorn's trousers were squashed down around his ankles.
55Two saplings had been placed over Thorn's body. One had been sawn off the other broken off.
56A search for Thorn's wallet on his body and in the area of his body was not conducted until 4pm on Sunday, 27 August 2006. The wallet was not found. It was not until after this search that it was known that the wallet was missing.
57About 80 to 100 metres from the location of Thorn's body there was both a creek and a disused cannabis growing compound ('the body compound'). About 5kms away was a compound used by the accused to grow cannabis ('the Mason compound'). In September 2010, police searched the accused's property and found an old outdoor cannabis compound and cannabis hidden in large garbage bins and 20 litre drums. In February 2010, the accused had outdoor cannabis compounds at Coles Bay.
58The Mason and body compounds were very similar. The similarities included:
aThey were of similar construction. Both had roofs which was unusual for bush compounds.
bBoth had identical 200 litre blue plastic drums. In the Mason compound they had been painted green for camouflage.
cBoth compounds had black agricultural water piping including fittings to water individual plants, which is unusual for bush compounds.
dBoth had black piping going to a water source.

59On Friday, 25 August 2006, prior to the discovery of Thorn's body, the accused spoke to Susan Fletcher, who was Thorn's partner. He told her that on the previous day he had been with Thorn so his DNA would be on Thorn's utility and that his DNA would show that he was the last person to be with Thorn. This was at a time when nobody knew that Thorn had died, although this was a possibility. Moreover there was nothing to suggest that murder, rather than suicide or accident, would be an explanation for Thorn's death.
60In June 2006 Thorn visited his son Adam in Melbourne. Thorn told his son he needed to tell him a few things in case something happened to him. He said he had hidden cannabis at 'Mount Harry' and drew maps to explain where it was. He said he had told the accused where this spot was and said if anything happened to him his son should find the cannabis and take it to the accused as he would get rid of it. Thorn also told his son of three locations where he had hidden money and drew plans of them. After Thorn's death his son found one of these locations, which contained approximately $13,000.
61On Wednesday, 30 August 2006, Adam Thorn and others searched for the cannabis that had been hidden by Thorn at Mount Harry. A hide was located at the point Adam Thorn believed to be the spot described by his father, but save for a few remnants of cannabis, none was there.
62Rocks appeared to have been disturbed at the site of the stash. Some rocks were taken and swabbed for DNA. The major profile obtained from one of the rocks matched the accused's DNA profile. The chance of a second person, unrelated to the accused, matching this profile is less than 1 in 100 million.
63The day after Thorn's body was found the accused said that Thorn had a heap of money buried. When it was suggested to him that it would be lost forever, he replied it would not be.
64On Saturday, 26 August 2006, when at the Campbell Town Hotel the accused said that Thorn was killed because he carried a lot of money on him. At this time it was not known to police that Thorn's wallet was missing. This became known some time after 4pm on Sunday 27 August 2006. While at the hotel the accused placed a number of bets at its TAB. It was noticed that the accused had in excess of $1,000 in his wallet. Video surveillance shows what a jury may infer was a wallet in the accused's possession at the Hotel. The accused had made no cash withdrawals from bank accounts to which he had access that account for him having such large sums of money on that Saturday.
65Thorn was murdered some months after the end of the bush cannabis growing season.
66Other than his involvement with the accused there is no evidence to link Thorn with Jarvis. Date:"